James VI, Parliament, and the Scottish Ancient Constitution: Ongins of Law and Power in Scotland in the Sixteenth Centiiry
TIMOTHY IAN WATEEER PATRICK
A thesis submitted to the Department of Hiaory in conformity with the requirements for the degree of Master of Arts
Queen's University Kingston, Ontario. Canada September, 1997 Copyright 8 Timothy Ian Waterer Patrick, 1997 National Library Bibliothèque nationale m*I of Canada du Canada Acquisitions and Acquisitions et Bibliographie Services sewices bibliographiques 395 Wellington Çtreet 395. rue Wellington Oüawa ON KIA ON4 Ottawa ON KI A ON4 Canada Canada Yarr Me vmnlkbme
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The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts fiom it Ni la thèse ni des extraits substantiels may be printed or otherwise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son permission. autorisation. This essay is concemed with the articulation of issues concerning power and authority in sixteenth-century Scotland. It is an attempt to evaluate the political theories produced by
James VI in light of the practicai constraints placed on his authority by the nobles and church in Scotland. By tracing the vicissitudes of kingship in this kingdom, from the latter years of James VI's minority through his tenure as a mature and independent monarch, this study demonstrates the extent to which constitutional theories were linked to the
"fundamental and loveable" laws of Scotland. These iaws denved their authority fiom their antiquity and from their unwrinen nature. It is argued that ancient consîitutional discourse developed in Scotland despite its lack of the common Iaw mentality.
Furthemore, it is suggested that James VI's kingship in his nonhem kingdom Uicuicated an understanding of the ancient constitution - and the role of parliament - that powemilly conditioned bis interactions with the English people and their parliament. Although James
VI is often viewed as the author of a treatise on absolute monarchy, this paper contends that his theory contained serious constitutional limitations on the power of kings. This thesis is based on a number of primary sources and it is hoped that this paper allows those sources to tell their story, they will provide the proper context for an understanding of the origins, and debates over, power in Scotland in the last two decades of the sixteenth- century. 1 would like ro thank the Department of &tory at Queen's University for the hancial support that made this thesis possible. I would also like to extend thanks to my undergraduate professors, Dr. Peter Goddard and Dr. David Murray, whose encouragement and scholarly example led me to graduate studies. Also, for his patience, constant support, and emphasis on diplomacy, Prof Donald Harrnan Akenson must be included. Thanks to my fdyand fiiends, and especially my w5e7 for tolerating my hstrations and encouraging my dreams. Finally, thanks to Wilhemina and Vladimir, who have convinced me that our humanity remains animalistic. Table of Contents
Chapter 1 - Introduction ...... 1
Chapter 2 - Constitutions and Legal Theory...... -25
Chapter 3 - The Practical Exercise of Power...... -44
Chapter 4 - The Limits of an Absolute Monarch...... 67
Chapter 5 - Theories of Power and Constitutional Limitations...... -83
Conclusion ...... -103
Bibliography ...... 1 08
Vita ...... 1 12 Cha~ter2: Introduction
Then al1 the elders of Israel gathered thernselves together. and came to SamueI unto Ramah. And said unto him, Behold, thou art old. and thy sons walk not in thy ways: now deus a king to judge us. And Samuel prayed unto the LORD.And the LORD said wito Samuel. Hearken unto the voice of the people in aii th.they say unto thee: for they have not rejected thee. but they have rejected me, that I should not reign over them. I Samuel 814 - 7
1t was thus, to the anguish of Samuel, that the people of Israel gave up the mie of
God's prophets for the rule of a king. The powers of that king would be prodigious. His
power would be so absolute and the people of Israel reduced to such servitude, that
Samuel felt compelled to warn them of the dangers of kingship: "And ye shall cry out in that day because of your king which ye shall have chosen you; and the LORD will not hem you in that day." (1 Samuel 8: 18) They would not be dissuaded from their desire for a king, however, and God granted their wish. The authority and power of kings was not expressly outlined, but their position as God's representatives on earth suggested few
limitations. ln practice, however, it appeared that an evil reign could be terminated by individual or corporate acts of violence, as manifest in the two Old Testament books of
Kings. '
The theory of the Divine Right of Kings was a natural extension of the Old
Testament account of God's creation of the kingly institution for the tribes of Israel.
What God had created for the Israelites extended to al1 who came under the sway of
Rome derits acceptance of the cult of Christianity in 3 12 A.D. The Roman empire had
- - ' See. for e.xample. the rcvolt of the ten tribes against Rehoboam in i Kings. 12: 19-20 "So Israel rebelleci against the house of David unto this day. And it came to pass. when al1 Israel heard Uiat Jeroboam was both the power to uni9 and the potential to divide the secular and ecclesiastical practices of a monarch and those of his nibjects2 Throughout the middle ages and into the early modem period the problem of the relationship of a derto God and to his or her subjects remained a fhitfid source of theoretical and practical debate. An evil reign was characterized by both excessive secular demands and a disregard for the religion of
Jehovah (Yahweh). The proto-historical development of kings rernains unrevealed, and therefore historians are lefi trying to reconstruct the arduous process through which the powers of the king and the powers of the subject, were delineated.) Sixteenth-century constitutional discourse was powerfully conditioned by both the contemporary and medieval practice of European mlers and the Old Testament account of kingship. This thesis will concentrate on the debates which took place in late sixteenth-century Scotland during the reign of James VI.
It is necessary to examine the existing conceptions of the fundamental law and the constitution in order to appreciate the cornplexities of a debate that was predicated on historical conceptions of the exercise of power within a specific kingdom. To understand
James VI and 1's position, it is necessary to analyze the practical exercise of power dunng his reign in Scotland. As Jenny Wormald has descrïptively stated: "It is not with his accession in 1603, like some graceless Athena spning fully-grown eom the head of a corne again that they sent and cailed him unto the congregation, and made him king over ai1 Israel:" or the numerous changes in 11 Kings 15. ' It may seem contradictory to suggest that the uni- generated by the Roman empire led to disuni@. however. the structure of the medieval papacy led to considerabte conflict beh~eenthe jurisdiction of the Pope (conceid as aflencornpasstng) and chat of the secuiar and conciliar theorists - such as Marsilius of Padua - and the kings th- were defending. 3 Attempts to describe the proto-historical development of kings informeci rnany constitutionai discussions including those of the Scottish humanist George Buchanan, Thomas Hobbes and his 'state of nature'. through to John Locke. and Rousseau's 'noble savages'. The prim~written account of kingship primitive Scottish Zeus, that understanding of James L begins. It is with his reign in
Scotland, 1567- 1 625 ."" The debates over parliamentary conflict and constitutional discourse in the reign of James VI and 1 have been based on examinations of the King's writings and speeches, as wel1 as the theones which emanated fiom the other social estates. Much of the disagreement that has characteriled these debates has centred around the concepts of fundamentai law and the ancient constitution.
The traditional views range from the belief that absolutism was clashing with incipient constitutionalism to, for the Marxists, the beliefthat the ossified quasi-feudal structures that were embodied by the king and aristocracy were coming under assault from an increasingly dominant bourgeois class? Whether the power relationships were manifest at the micro-level of the diad, or at the increasingly complex levels of family, kinship network, community, or parliament, the essential quality remained the obligations and limitations placed on individuals, or collectivities, engaged in the political diale~tic.~It was the elucidation of discordant Mews of these obligations and limitations on a national level - the constitution - which led sixteenth-century individuals to debate an understanding of these constitutive elements. Before placing the political theory of James in its proper conte-, it is essential that the debate over political thought in the British Ides be reviewed and compared. remained the Bible, therefore both sides of the deùate benveen the church and the state - as neIl as bebveen subjects and the monarch in the early modern period - relied on this account. Jemy Worrnald. "lames VI and 1: Two Kings or One?". Histoy 68 ( 1983). p. 192. Sefor esample. SRGardiner. Wstorv of Enrrland From the Accession of James 1 io the Outbreak of the Civil War: 1603-1642. (London: Longmam. Green. and Co.. 1884-1908). Wallace Notestein "The Winning of the Lnitiative by the House of Gommons". Proceedings of the British .4cadem-v. 11 ( 192-1-5). pp. 125-175. As well as Christopher HiU. The World Turned U~sideDown: Radical Ideas durinn the Ennlish Revoliition (London: Temple Smith. 1975). especialiy chapter 18. The legal and constitutionai debates of seventeenth-century England have attracted a number of outaandhg scholars. J.G.A. Pocock's seminai monograph of 1957, The
Ancient Constitz~tionand the Feudal Lmv,provided a powerful exposition of the view that the cornmon law of Engiand was the overarchg form through which the contemporary conceptualizations of English history had to pass as they were conditioned and constructed. This idea has contributed to the view of a conflict between the common law conception of an immemorial, and therefore ancient, constitution and the view of James VI which placed hgs, in their onginal state, before the law. This common law conception, which posited the law of England as an immemorial series of customs, led to the belief that the constitution - which consisted of the component obligations and limitations that defined the political dialectic of English history - was itself irnrnemorial and thus immutable.' As such, the ancient constitution could not be altered at the caprice of any particular monarch.
Pocock argued that English political discourse was conducted in the language of the comrnon law. This should not be interpreted as the suggestion that the common law provided the only fiamework of debate, but rather that it was an essential part ofjustifjmg the prerogatives and limits of both royal and parliamentary power. If the laws of the kingdom were traced back into time immemorial it would be possible to claim that the fundamental laws, or constitutive forms of power, were also irnmemoria~.~Therefore, tracing the ancient origins of the law was essential to proving the validity and congruence
Interaction between individual was largely conditioned by the individuals social stahs. for e-xampie. a woman in sisteenthcentuq Scotland wouid behave in a different mertoward her husband than slie wouid towrd an unknown male based both upon gender and the social status of the other man. J.G.A. Pocock The Ancient Constitution and the Feudal Law: A Stu& of Ennlish HistoricaI Thounht in the Smenteenth Centun; 2" ui. ( Cambridge: Cambridge Uni~ersityPress. 1987). p. 36. of the ancient constitution with the exinhg mental world of sixteenth and seventeenth- century England. That mental world, or mentalité, remained hierarchicai and conservatively corporate. The common law lawyers were attempting to substantiate a view of the ancient constitution that was extremely conservative; rather than uinovating, they looked to the past for the justification of their present syaern.
For Pocock there was a clear transition in the sixteenth-cenîury to a system which glorified immemoriai customs as the determinants and arbiters of kingship. Claims to absolute sovereignty made by the magistrate were countered by reference to ancient custom which placed certain privileges and naturd rights outside of the king's jurisdiction:
Lf the constitutionalists could show that the Iaws were as old as, or older than, the kings, they might go on to assert a contractuai or elective bais for kingship; but if the laws had corne into being at a time when there was already a king, then nothing but the king's authority could have sanctioned them or made them law, and the king might assert a sovereign nght to revoke what his predecessors had ganted.'
Those who appeded to the idea of an ancient constitution had a political agenda to limit, or maintain limits on, the power of a monarch. Was this simply part of an arnorphous and
"widespread reaction that was going on in sixteenth-century juristic thought?"' Or had changes taken place which made it necessary to know, to place, or to fabricate limits to the sovereign power of a king? The impetus for these changes in political and juristic thought, it seems, cmbe derived from the Old Testament account of kings and the power stniggles between the Papacy and secular rulers in the Middle Ages.
Ibid.. p. 49. qbid.. p. 17. Il 1 ibid.. p. 14. The Old Testament account of kings suggested that an evil reign - characterized by excessive temporal demands and, importantly, apostasy from the religion of khovah, could be, and eequently was, dealt with by the subjects. Indeed, collective action was necessitated by Samuel's waming that the Lord wouid not Listen to the Israelites when they cried out for relief; without God' s intercession on their behalf the Tribes themselves had to enforce the contracmal obligations of kingship. Yet, between Saul and James VI &
1, kingship had become less of a contractual relationship and more of a divine appointment which carried sacrosanct intimations. The New Testament countered (as it usually does)
Old Testament practice. In Matthew 22:21, Christ said: "Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God7s." This further separation between the secular and the ecclesiastical created a situation where the subject's loyalty was split between the Church and the magistrate. It was Corn Christ's ambiguity that the Catholic Church had to fashion, fiom experience, an understanding between Princes and the Church.
Lt was from this dialectic process that corruption was engendered. Leopold von
Ranke characterized the process t hus: "the ecclesiastical pretensions of the sovereigns produce the temporal claims of the popes; the corruption of the ecclesiastical institutions elicit the development of a new intellectual tendency."" The Protestant refom was a result of this process, and yet it also became the process: the Reformation generated the conditions which necessitated Pocock's "widespread reaction" in juristic thought. This thought, though expressed partially in juristic language, was theologically based and generated. Ci native cuaom, was an obvious result of the schisrn in the Corp2~~Christimnm This need to look inward had repercussions for the constitutional history and language that was used by "the people" against the king. Fundarnentaiiy, the king's view was also conditioned by a particular, and specific, reference to an ancient constitution. For Pocock the development of England's reiiance on common law thought occurred between 1550 and 1600." A close examination of Scottish history reveals that a sVnilar process took place in Scotland and, crucially, that an ancient constitution was articulated by both subjects and sovereign, despite the fact that Scotland's law was not a "purely insular form of law."'" Therefore, when James arrived in Engiand he was not suddenly confronted with a completely aiien constitutional concept, nor was it one for which he lacked an adequate vocabulaiy. Ln Scotland the fundamentai and loveable laws were the constitution and, in effect, they dEered little from the immemorial custom of the common law. Pocock's assertion that the ancient constitution of England was the product of its insular legal system requires slight modification. The "loveable laws" of Scotland were also predicated on theu being irnmernonal; the difference is one of scope, whereas the English common law in its entirety was seen to be immemorial in Scotland only the fundamental laws met this requirement. The Scottish parliament however, was included Il Leopold von Ranke. The Historv of the Popes: Their Church and State in the Sixteenth and Seventeenth Centuries. (London: Wttaker and Co.. 1863). p. 22. ''One need look no fierfor aidence prming this contention than the Calvinist rtvolution in Scotland in 1560 or for a Continental e-uarnple. the French Wars of Religion ( 1563- 1598). l3 Pocock. The Ancicnt p. 3 1. 1 i Ibid.. p. 55. under the rubric of the ùnmemorial. The idea of buiàiig fundamental laws, and even binding statutory laws, was not alien to James VI & 1. Pocock's work generated a number of midies and debates concemed with the ramifications of ancient constitutionalism on conceptions of political ideology in seventeenth-century ~n~land.~'Three essays in Linda Levy Peck ed., The Merrrd Wdd of the Jambean Court, covered a great deai of historiographical ground and have also provided an example of the type of debates over absolutism and constitutionalism generated by Pocock's seminal monograph. Jemy Wormald's contribution, "James VL and 1, Basi[iko~iDuron and The Trew Law of Free Monarchies: The Scottish Context and the English Translation", relied heavily on the writings of James VI, and the details of their publication, to suggest that James was misunderstood by his English subjects. '"er article attempted to provide a corrective to evaluations of James, and English politics afier 1603, which have failed to pay sufficient attention to the Scottish context of his writings. Womald believed that James was introducing Scottish theories and practices of kingship into ~n~1and.I~His theories of kingship exalted the theoretical power of the der, making a free monarch answerable to God alone. This theory attempted to counter the prevalent arguments of certain factions in Scotland, such as the supporiers of Andrew Melville and the lingering constitutionalist traditions of John Knox and George Buchanan, which attempted to limit the sovereignty of kings. Wormald expressly stated that James was, in l5 For an informative review of some of these historical debates see Glenn Burgess. "On Retisionism: An Analysis of Early Stuan Historiography in the 1970s and 1980s". The Historicd Journal. 33 (1990). pp. 609-27. 16 Wormald is the heir to Maurice Lee's position as the reigning cxpert on the Scottish reign of James VI. her much anticipated biography of James should prove a usefiil corrective the rnyopia of past historiai views of James' kingship. the Trew Law, attempting to give the "Scottish monarchy an ideological base wholly different from anything in the past; and he gave it not just as a theorist, but as the man who had to translate theory into practice."k8 Wormald suggested that James' problems in England arose fkom his adoption of English constitutional rhetonc. James was engaging in the kind of ideologid debate that he had pursued in Scotland, but unfomuiately his Engiish subjects feared that he would put his extreme claims into practice. The fact that this led to tension and conflict in England is not surprising considering the problems of grafhg even the lilimited constitutionalism he propounded - although in the guise of an absolutist theory - ont0 a system of law which claimed udimited sovereignty for itself. Wormald7scontention that James' theorking encountered an alien, and particularly English, constitutional system and rhetonc supports Pocock's view of England as a unique - and insular - constitutionai laboratory. Jenny Wormaid has also produced two other works which have particular resonance in this debate. In Court. Kirk and Communitv (198 l), Womald insisted that: "Both Buchanan and the Huguenot writers based their [political] theory on the idea of an ancient constitution, under which the final authoi-ity was not that of the king."lg This is the recognition that ancient constitutionalism was not solely an English ideological phenornenon which derived from the comrnon law mentality. Wormald stressed that Buchanan took an accomplished task the deposition of Mary Queen of Scots, and then '- Je~yWomalb -James VI and 1. Basilikon Doron and The Trtw Law of Free .ifonarchies:The Sconish Context and the English Translation". in Linda Levy Peck (ed.). The Mental World of the Jacobean Court (Cambridge: Cambridge University Press. 199 1). p. 37. I S ibid.. p. 43. read history backward - as did the English jurkt Sir Edward Coke at a later date - to find examples of constitutional precedent. As Buchanan set out to validate an accomplished aa,his work was really a portrait of Scottish political reality.'' She argued that James VI wanted an authoritative parliament in Scotland because this would add legitimacy to the laws as well as making it possible for these laws to be enforced. Although Wormald did not explicitly state that James had his own version of the ancient constitution. her works clearly suggested that he had been exposed to constitutional discourse in Scotland; this opened the door for further investigations of the ancient constitution in Scotland. Also of considerable interest is Worrnald's article "James VI and 1: Two Kings or One?'; in this work she attempted tu reconcile two discordant views of James VI and 1 - the English and the Scottish. Drawing from rnany prirnary sources, Wormald not only disrnantled the negative Mews of English observers and historians, but raised the whole issue of continuity between James' role as the king of Scotland and as king of England. The histoncal iegacy of misinformation concerning James, traced from S.R Gardiner to the present, is descnbed: It is a route which began with the institutions of English govenunent, in particuiar a parliament which stood, however hesitantly, for immemorial rights and fieedoms; and it led to the conclusion that King James's actual understanding of English govemment fell so fa short of his opinion of that understanding that he was indeed more characterized by vanity than by abi~ity.~' As the unified and monolithic vision of parliament faltered, so did the traditional view of James. Wormald asked: "Could a king from Scotland not understand his English - - '' Je~yWomaid Court. Kirk and Comrnunitv: Scotiand 1470- 1625. (London:Edward Arnold 1% 1 ). p. 147. "' ibid. p. 118. parliament? Or did his Scottish expenence enable hirn to see its problems al1 too ~learl~?"~The answers to these practical and constitutional questions requires further e~~lication.~ The second article in nie Mental World of the Jucobeai~Cm, was by J.P. Sommede. In this paper on "James 1 and the Divine Right of Kings: English Politics and Continental Theory", SommeMlle took issue with revisionist interpretations of English political thought: "Now, revisionist arguments rest upon one basic contention - that there were few differences of political principle amongst Englishmen in the early seventeenth century. According to the revisionist account, which owes a great deal to the work of J.G.A. Pocock, a single political ideology prevailed in ~n~land."~~He asserted that there were several ideologies extant in seventeenth-century England and many, including those of James VI and 1, were not linked to the common law? Providing considerable evidence, SommeMlle claimed that James' ideology was profoundly shaped by Continental issues and theories. This does not corne as a surprise to a student of Scottish history who is familiar with the fact that John Major, John Knox, George '' Wormald *King James VI and I". p. 192. n - Ibid.. p.20 1. " It is interesting. and upsetting. to note that Wormaid believed James' Sconish experience had lefi him U-equipped for the constitutional debates he ençowitered in England; this despite her other evidcnce proving his political sawy. Wonndd, commenting on the Basilikon Doron. exclairned that "it is al1 about the art of poiitics; on this evidence. constitutional principle and institutionai sophistication lefi him as inMerent as they did his Scottish subjects." (p. 198) Constitutionai p~ciple,as will be demonstrated. was vitaiiy important to James' subjects and to the King himself as revealed in the True Lawe of Free ,Ilonarchies. Woddbelimed that James' use of the "constitutionaf rhetoric of the English" was nothing more than "a veneer, overlaying bis very different approacb for the appeal to rights and precedents. to rime immemorial. was very much les part of Scottish poiiticaI thinking and language."(p. 205) It wiU be demonstrated. as SommeMile suggested. that James' rhetoric \vas Scottish and that the appeal to rights and precedents svas as much a part of Scuttish discourse as it was of English prior to 1600. '"J.P. Somrnc~lle.&James 1 and the Divine Right of Kings: English Politics and Continentai TheoryS*.in Peck (ed.). The Mental World p. 56. 25 &id.. p. 57. Buchanan, and Andrew Melville - the leading expositors of the "constitutionalist" theories in Scotland - were ail educated, and spent considerable tirne, on the Continent. James read widely and this uicluded the 6gsof Continental monarchomachs. Lf, however, "James was not a split personality, and his practice was not seaied from his thoughts," as Sommerville claimed, it becomes increasingly dficult to understand how James formulated an absolutist theory of kingship in the face of his Scottish experien~e.~~ The connections Sommerville made between James and the debates of the Continent have helped to reveai the extent to which James felt that he had a stake in the events and theories of his day. Sommede expressed the belief that James' political theory did not change after he took the throne of England, which partially supports Wormald's claim that James entered England with a preconceived theory of kingship. although Sommerville adamantly stressed the influence of Continental theories. Those historians who have suggested that James engaged in ancient constitutional discourse, as defined by Pocock, were challenged to counter Sommerville's evidence. It may be, however, an unfamiliarity with James' Scottish mle that led SommeMlle to pronounce that: "There was, in fact, no place in James's political outlook for the idea of an ancient constitution underlying the rights of both sovereign and subject. It is doubtful that he even understood the doctrine of the ancient con~titution."~'The fact that James was conversant with an ancient constitution will be developed in chapters 2-4. This paper was a powerful attack on conceptions which posited the existence of a monolithic cornmon law ideology and as such served as a useful guide to fùrther discussion and certainly invited comment from revisionist historians. " ibid.. p. 58. In an article on "Royal and Parliamentary Voices on the Ancient Constitution c. 1604- 162 l", Paul Christianson argued that James had formulated a theory of "constitutional monarchy created by kings" in Engiand and that it cornpeted with at least two other interpretations of the ancient constitution - "mixed monarchy" and "constitutional monarchy governed by the common law". Agreeing with Pocock that the ancient constitution provided the bedroclq or foundation, for political discourse in early Stuart England, Chrktianson asserted that various competing theories developed which inforrned ancient constitutional discourse. Chnstianson stated that James displayed "recently gained knowledge of English parliaments," based on James' parliamentary speech of 1605 clearly suggesting that James had to acquire a new understanding of his English parliament.28 In emphasizing lames' lack of understanding concerning the English comrnon law and its peculiar constitutionai ramifications, Christianson agreed with Womaid and Sommerville who also believed that James came to England unprepared for the novelty of the common law system." Christianson's argument, however, went on to develop the idea that James, through his .- - Ibid.. p. 65. Paul Chnstianson. "Royal and Parliamentaq Voices on the Ancient Constitution c. 1604-162 1-. in Peck (ed.). The Mental World of the Jacobean Co- p.74-5. Christkamon continuai: "The king clearly displayed the supreme role of parliaments in the 'abrogating of old' and 'making of new' laws and other public matters of great consequence and provided a foretaste of the feast to corne in 16 10." (p. 74) 1 argue that James had not really learned anything new at this point, compare his Mew of the English parliament with &is Mew of the Scottish parliament (see inPa, p. 95) in order to determine if this was "recentiy gained knowledge of English parliaments." (p. 74) Certainly. James had to adjust and learn many technical Merences which existeci in the English parliament. but he still believed that parliament was an advisory body chat discussed matters proposed by the King. Although any member could put fonvard grimances and remedies - similar to the 120~act of the Scottish parliament of 1587 which was meant to aUow the lessor barons to put fortvard their needs and causes - James did not seem to be aware that acli suggestion from his English commons could becorne legislation ~ithoutking olllciail~submitted b' the King for consideration. " ibid.. p. 75. interaction with the English parliament and the cornrnon lawyers, formulated a new constitutional interpretation - "constitutional monarchy created by kings." It was at this point that Christianson's view conflicted with those presented by Womald and Sommede. Arguhg that James' speeches to the English parliament revealed a change in vocabulary as well as "a new interpretation," of his ideological position, C hristianson attempted to systematically develop a view of the King's accommodation to his English subje~ts.~~mile Sommerville argued that James remained ignorant of the common law and English constitutional discourse and Wormald suggested that James simply adopted English constitutional rhetoric and attempted to continue his theoretical Scottish debates using this new vocabulary, Christianson believed that the King actualiy adapted to his new surroundings and began to utilize the common law vocabulary and ideology. Christianson's article fidy established that there were variations of ideological discourse, as Sommede also suggested. whiie simultaneously rebutting the suggestion that James was oblivious to constitutional theories. These three articles, with their contradictory opinions, have helped to raise further questions about the constitutional views of James VI and 1. They have also necessitated a thorough review of James' political writings. Few Scomsh historians have attempted to illustrate the constitutional sagacity of James VI although an increasing number have begun to view his kingship in Scotland as a testament to his political abilities. However, even those best suited to the explication of 3 0 Ibid.. p. 77. Scottish constitutional history - such as the doyen of Scottish historians Gordon Donaldson - were little more than dismissive: The organs of the Scottish constitution must be viewed not as the embodirnent of theones of representation or of deby consent, but as the machinery by which the govemment of the country was conducted, as the instruments by which effect was given to the individual or the faction in contr01.~' It seems that little could be leamed about discordant or concordant views of the ancient constitution if the "study of the constitution is therefore in this penod the study of the means by which the sovereign exercised his a~thority."'~Although many excellent histories covering the years of James' rule in Scotland have been written, few have attempted to interpret the events of his reign in constitutionai terms. Donaldson, in another context, however, suggeaed that the "issues between the king and Melville were largely constitutional and political."33 This, of course, is at variance with his suggestion that the constitutional history of the period need not be concemed with ideology. The articles discussed previously clearly suggest that ideology played a significant role in the kingship of James M and 1 and that a considerable number of points remain unresolved. In pan, Donaidson's interpretation of the Scottish constitution was denved fiom the work of R. S. Rait. Rait's monograph, The Scottish Parliament before the Union of the Crowns ( 190 1), was a product of the progressive and anticipatory historical methods then in cornmon use. Rait did not set out to describe the Scottish parliament as ir existed in the " Gordon Donaldson. Scotland: James V to James VII. (Edinburgh: Oliver & Boyci. IY65). p.276. The very suggestion that there were constitutiond 'organs' infers that some kind of theoq mut have informed the status. power. and antiquity of each 'organ'. " ibid.. p. 276 Studying the means of exercising power - how James actualiy managed to mle his kingdom - is a vcq important aspect in understanding the constitutional theones of James VI, Iiowever, the midy of the constitution. or theones of kingshp. must entail the ideological positions that informai men like John Knos a~!-+orge Buchanan. sixteenth-century, but rather " to point out what it might have been and was not."" Such an approach is predicated on the belief that the Scoaish parliarnent failed to meet a standard that did not exist in siuteenth-century Scotland. Assuming that Scotland -'faiIed to produce a constitutional movement Iike that which characterizes the history of England," and did not "develop any kind of constitution at ail." Rait argued that Scotland had a weak parliarnent dominated by the Crown, a mbber stamp which proved 'a convenient method of declaring and recording what had been done? As one of the leading studies of the Scottish parliament, Rait's book influenced the interpretation not only of Gordon Donaldson, but of several generations of Scottish historians. Such interpretations may have been partly responsible for the view that James encountered a unique institution in the English parliarnent and that the Enghsh parliament played a substantially different role in the constitution of that kingdom than the Scottish parliament did. Arthur H. Williamson, in his book Scottish National Consciousness in the Age of James VI ( 1979). drew extensively upon Presbyterian sermons and tracts to link the Scottish political system to an apocalyptic and convenantal mentality. In order to support his conclusion that "Scotland had never had an 'ancient constitution' in the English sense," Williamson felt cornpelled to eradicate any possibility of Scotland as a genitor of constitutional discour~e.'~His comments conceming the "Black Acts" of 1584 reveal what some might characterize as a whiggish interpretation: "Here was language about " ibid.. p. 198 3.' Rait. R.S. The Scottish Parliament before the Union of the Crown. (London: Blackie & Son 1901). p. n-iii. 3 5 ibid.. pp. sis (intro.). 3. G. par liament remarkably close to the English usage and anticipating the great English debates next century, so close in fact as quite possibly betraying English inspiration."" It will be demonarated in the following chapters that this "language" concerning parliament existed in Scotland independently of England and the cornmon law. Williamson's argument suggested that Scottish national consciousness lacked the ideas and vocabulary of the ancient constitution. He quoted the speech James made to the English parliament on March 3 1, 1607, as an example of how the fundamental law in Scotland was dissimilar to the English cornrnon law. In this speech James suggested that the Scots, who had referred to the protection of their fundamental laws in the Scottish instrument of union, "intend thereby onely those Lawes whereby confusion is auoyded, and their Kings descent maintained, and the heritage of the succession and w on arc hie."'^ Lt is, however, possible that the Scots meant to protect their own constitutional rights as they envisioned them under the nibric of the "fundamental la~s.")~Indeed, those fundamental laws included elements that were constitutive and which politically constrained the king! Among the first to realize that the portrait of James painted by spurned courtiers and English historians concealed more than it revealed, was Maurice Lee. He considered 3"illiamson A.H. Scottish National Consciousness in the Ane of James VI. (Edinburgh: John Donald Publishers Ltd.. 1979.) p. 146 " Ibid. p. W) See. on the Scottish 'anticipation of Common Law language. Quentin Ski~er'sseminal article "Meaning and Understanding in the History of Ideas" History and Theory. 8 (1969): pp.3-53. Skinner criticized such a methodology thus: 'First. the tendeocy to search for appro.uimations to the idd type yields a forrn of non-histoty which is aimost entirely &en over to pointing out wlier 'anticipations' of later doctrines. and to crediting [or discreditingl each writer in temof this clairvoyance." p. 1 1 '' James VI and 1. Political Writin~s:King James VI and 1. J.F. Sommerville (ed.). (Cambridge: Cambridge University Press, 1994). p. 172. 39 See. for aidence of this argument. Bmœ Gâlloway. The Union of Scotland 1603-1608. (Edinburgh: Jolm Donald Publishers Ltd., 1986). p. 24. James' suMval and ultimate success as a king of Scotland to be at variance with the buffoon of English caricature. Lee paid greater attention to Scottish constitutional and political discourse than Rait, Donaldson, or Williamson. Arguing that the concept of personal monarchy had been eroded by the Scottish Reformation and the resistance theories of John Knox and George Buchanan, he viewed the burgeoning of a "nascent and unprecedented constitutionalism," as a naturai consequence.'" This constitutionalism, if not predating that of Engiand, was at least concomitant with it. As to the genesis of James W's political writings: "There were ideas abroad in the land, like Buchanan's, that were dangerous to kings: they must be countered."'* James' adherence to absolutism or Divine Right theory appeared reactionary in Lee's account. As James atternpted to counter these ideas in practice he quickly discovered that: "Erastianism begat theocra~~."'~The theocrats, Andrew Melville and his extreme presbyterian supporters, were particularly motivated constitutional opponents. Lee's opinion of the King's political beliefs are consonant with those of Jenny Wormald; he believed that James canied his beliefs with him to Scotland and, like SommeMlle, believed that James did not change his views on kingship or parliament? Lee suggested that the root of the conflict between James and his English parliament stemmed from a difference of opinion over the extent of the royal prerogative; some Englishmen - for reasons developed by Christianson and SommeMlle - believed that the - - ''O ''O Esamples of these variant conceptions of the %ndamental laws" can be found in the following chapters. -" Maurice Lee. Great Britain's Solomon: James M and I in His Three Kingdoms (Chicago: Universic of Illinois. 1990). p. 36. '' Ibid-. p. 58. 43 ibid.. p. 53. 44 ibid.. p. 61 royal prerogative was limited, whereas the King considered it to be theoretically uniirnited. Lee considered this to be of critical importance: "This difference of views was never resolved and was at the root of the flare-ups over the respective rights of crown and parliament that have misled so many hinorians, anticipating the civil war, into describing relations between the two parties in James's reign in terms of constitutional conflict."" Maurice Lee's controversial statements opened new possibiiities for research into the ideological position of James VI and 1, and have helped to deconstruct the images of James' kingship which have constrained a thorough examination of his constitutionai thought. The most recent, and comprehensive, work on Scottish constitutional history cornes from J.H. Burns, whose knowledge of Scottish kingship in the later Middle Ages leaves him particularly well-suited to comment on transitions in kingship in the early- modem period. He saw, in the late fifieenth-century, an extension of royal power based on developments in ecclesiastical, temtorial, and jurisdictional boundaries? Despite the slow aggrandisement of power by fifieenth-century kings in Scotland - as elsewhere - Burns warned the reader that this did not necessarily connote an "absolutist" ideology "* ibid.. p. 1 17 Lee takes issue Mth interpretations which mggest that the conflicts behveen James and the Englisli parliament were constitutional. Lee betieved thai: "Wlien these alleged confrontations are e.wnined. they iurn out to be extraordinarily ephemeral. The Commons was alarmed to learn in 1604 tlm Jmes beIieved their privileges came from him, but Lheir Apologv was no1 fodli,delivered. and the political world quickly realized that James was as pragmalic in his behaviour as lie was hyperbolic in his theoretical c1aims.- (p. 303) This is contrary to Lhe view of Chrisliamon who believed that James w as embroiled in a constitutional debate (thougii not absolucism versus constitutionalism) in Clinstianson's argument Jimes was viewed as the initiaior of this ideologicai debaie: "Responduig io the Lheoretical voices of the king. cornmon lawyers fahioned two interpretations of die English constitution wliicli deliberately avoided the derivation of authority from monarclis alone." (p. 95) AIthough bol11 accounts stress that ihere was les confiict tiun traditionally assume& it is W~culito understand how Lee conceptualized disagreements over the ri&& of crowvn and parliament in terms Uat were not constitutional. 46 J.H. Bm.The Tme Law Of Kin~hi~:Conce~ts of Monarchv in Eariv Modem Scotland (Oxford: Clarendon Press. 1996). p. 6. informing such actions. Burns took exception to the traditional view of the Scottish parliament as a "rubber-stamp", and forcefully argued that it, like its English counterpart. was a forum requiring, and strïving for, CO-operation." Burns attempted, through a reliance on source material, to deveiop an overali vision of the Scottish political climate which traced the intellectud trends that shaped theological and political reality. By examinhg the theological, historicai, and polemical writings of John Ireland, John Mair. Hector Boece, John Knox, and the radical members of the Scottish Kirk, Burns provided a carefully constmcted context for theories of kingship in the reign of James VI which reflected the circurnfluent conditions of the political context. Bums realized that the monarchomach theories which developed in the crucible of the Scottish historical context led to the kind of challenges to monarchy that Maurice Lee identified as a constitutional threat to the prevalent theories of monarchy. The defenders of monarchy, in combating this attack on the Great Chain of Being, developed a theory of hereditary and absolute monarchy." James' own writings were an expression of this type of theory and revealed not absolutist tendencies in practice, but rather a theoretical claim to counter the monarchomachs own theoretical claims. The discussion, both by the monarchomachs and James, of a contractual theory of kingship, lay at the root of their differentiated views of the mutual duties the contraa in~~osed.''~ The concept of "fundamental law", Bums argued, needs to be interpreted in the sense that these were the laws which made both the people and the monarchy "free". The 1- ibid.. pp. 10-16. 48 Ibid.. p. 225. For the relationship of the Great Chain of Being to the Ancient Constitution see the bricf discussion in D. Woouen Divine Rigi11 and Democracv: An Antholo~vOC PoIitical Writine: in Stuart Enaland (New York: Penguin Books, 1986). pp. 28-30. '' Ibid. p. 285. laws that defined the relationship between king and subjects, the kges regni of Mair, provided the definition of freedom used by Mair and Buchanan, this freedorn "here has. in addition to its implicit rejection of proprietord monarchy, a constitutional - even a constituent - aspect.77MJames while accepting that the King enten into a reciprocal relationship - bounded by fundamental laws - simply denied the source of that relationship. He shifked the people's power to Gad? while maintaining the laws that he too mua follow to be a Godly king. Clearly Bums believed that James had created a constitutional theory in keeping with his view of a f?ee rnonarch. Unlike Williamson, he considered the "fundamental laws" to be part of larger constitutional discussion. Bums analysis of the various concepts of kingship in the early-modem period is the most probing yet atternpted. Though he recognized that the discourse was not characterized by absolutism, Burns failed to emphasize the extent that constitutional language conditioned the ideological positions of the estates, the theologians, and the King. In the foilowing snidy, the first chapter will provide a working knowledge of the legal framework that conditioned the constitutional discourse of sixteenth-century Scotland. The discussion of findamental laws requires an understanding of the sources and limits of law in Scotland and the contemporary conceptualiation of the role, and nile, of law in so~iet~.~~The lack of wntten source material on the legal system of Scotland hinders a full explication of its limits and roie in shaping the Scottish political climate. Chapter one relies on the written works of three eminent Scottish lawyers: Sir James Balfour, Sir Thomas Hope, and Sir Thomas Craig. The first two sources are in the fonn of Practicks, and represent a source of legal decisions and observations that informed the practice of iaw. It is possible to extract a view of the Scottish constitution fiom these sources as they discuss the power of parliament, the King, and individuals in relation to each other and the law. The section on the views of Thomas Craig was denved from his tract on the possibility of a union of laws sternrning fiom the Union of the Crowns. Craig's argument revealed the intemal inconsistencies that characterized a cosmology that deiighted in a powefil king, but left sovereign power in the hands of the "people". This chapter attempts to prove that constitutions, and the limits to power they imply, were articulated and understood in sixteenth-centus, legal practice. Mer grounding the discussion in its legal roots, chapter two attempts to provide the Scottish context that conditioned the ideological positions of various acton in the society. Through the use of official records, such as the Acts of Parliament and the Records of the Privy Council, chapter two illustrates the process through which a young James VI attempted to increase and exert royal control in his kingdom. The third chapter picks up this theme and carries it into the period of the King's independent rule. Taken together these chapters attempt to demonstrate that compromise and CO-operationwere the keys to successful kingship in Scotland. The use of two histories wrïtten by contemporary participants and observers, John Spottiswoode and David Calderwood, provide a wealth of source material, as well as two divergent opinions on the motivations and nature of conflict in sixteenth-century Scotland. Spottiswoode was a moderate minister who maintained royal favour and rose steadily '' For a discussion of the rapid groMh of the legal profession in Scotiand see Alexander Murdoch. 'The Advocaies. the Law and the Nation in Early Modem Scotland' in Wilîrid Prest (ed.). Lawers in hlv Modem Europe and Anerica. (New York: Holms and Meier Publisilers Inc.) pp. 147-163 through the Church hierarchy, finaily culminating in his behg made Archbishop of St. Andrews and his occupancy of the Lord Chancellor's position on the Pnvy Council under Charles 1. Despite his debt to Royal largesse, Sponiswoode fkequentiy provided both sides to an issue which made his work a more useful tool than it might otherwise have been. The remairing deficiencies and bias of Spottiswoode's history are amply compensated by the documentary evidence and bias of the Generai Assembly's officiai histonan David Calderwood. Calderwood was a rninister at Crailing and an extreme defender of the reformed Kirk. Melvillian in its proclivities, Calderwood's history provided many documents and speeches which tended to correspond with other sources, including Spottiswoode, this helped to provide the Kirk's position and the less laudatory aspects of Royal political machinations. It is essential to use these sources in tandem in order to provide a balanced account, and to supplement the often less than illurninating officiai papers. When properly contexnialized by these sources, the theories of King James VI appear not absolutist but constitutional. The fourth chapter compares and contrasts the theories of George Buchanan and James VI in an attempt to provide a new conceptualization of the political thought of James VI. Here the legal, practical, and ideological influences converge and produce a theory of kingship that was limited and fiee. It argues that James attempt to counter the theories of Buchanan and the Continental monarchomachs required him to make what, on the surface, appeared to be absolutist claims, but when the theories are exarnined and read closely, James' practical experience in Scotland begins to reveal itself in the very serious limitations the king placed on hirnself These limitations reveal that in practice he exercised a power that was limited and bounded. His writings also reveal that he was familiar with ancient constitutional discourse before he lefi Scotland and that his political views did not change to accommodate either the comrnon law or his Engiish parliament. Chwter 2: Constitutions and Led Theorv In order to provide a clear picnire of govemance, power, and authority during the reign of James VI, it is essential to defhe and delimit the parameters of certain concepts. Sources for this period reved £iequent references to fundamental and loveable laws as well as various constitution^.^^ Both tems, law and constitution, refer to customary practices as well as statutory products of parliament. For exarnple, when the miniaers who composed the General Assembly of the Kirk of Scotland made reference to the laws and constitutions which vafidated their religion and practices, they could only have been referring to laws formulated and enacted since 1560.~' Conversely, when members of the nobility and burghs made similar clairns to ancient laws and constitutions they could look further back, often to previous reigns and ancient customs. It was these older claims - often adopted by factions within the Kirk - which constituted the marrow of what might be cded ancient constitutionalism. Old laws, customs, constitutions, and practices were aii part of a systern of governance within which members of society interacted with one another and with the recognized authority according to agreed upon rules and traditions. These rules and traditions encompassed various aspects of social life: included among these were trade, warfare, social standing, and justice. The old laws and constitutions bore witness to this '' Constitutions. as used here. refers to a set of laws genemted by the king or emperor. An attempt has been made throughout this papa to use the term constitution in such a manner that the variant rneanings can be derivai fiom the context, The appeal to constitutions by si?cteenth-century Scots was an appeal to precedent as established in witten sources of law. the appeal to "fiindamental" law was an ancient constitutional appeal. process and indicated the accretion of laws and practices over time and within a politically and geographicaiiy circumscnbed area. When these old laws and constitutions were seen to exert a controiling or mitigating auence on a current king, der, or govement, they became constitutional in the sense that they prescribed limits to the power and authority of the central goveming body. In one sense, reference to ancient laws and practices was an incipient expression of the doctrine of sme decisi.?; it was an attempt to maintain and protect govemmentai continuity, through the appeal to a presumed pattern of continua1 behaviour, while concomitantly attempting to safeguard the rights and privileges of a partinikir estate, institution, or social body. The appeal to continuous laws and practices as a means of controlling and delineating the exercise of power and authotity in a particular society provided the basis for the idea of an ancient constitution in which traditional practices that were given neither statutory expression, nor an entrenched stahis, were still considered to be binding on the central authority. These "constitutional conventions" rnight include such practices as the order of voting in parliament or the obligation of the king to consult with the eaates before creating laws. Such conventions composed the bulk of what sixteenth-century Scottish writers considered to be the customs and fundamental laws of the reairn. To the degree that these customs and laws were unwritten they were roughly analogous to the common law tradition of England. J.G.A. Pocock has niggested that the English lawyers believed that the law was a product of custom; as nich the corpus of the common law and '' It is tme that the Presbperians attempted to use privileges granted to the Catholic church for their own uses. but any law or mnstilution wluch ddtspecficdly with the refomed fai th could not. logidly or ciuonologically. e'rist prior to 1560. " Mare decisis is a terni ptimarily associated Mth the English common law -stem of judge-made law. it is corrunonly ~anslatedas "siand by liie decision". the constitution of the kingdom were also the product of irnmemorial customs; this grounding of the law in immemonal custom was the key to Pocock's conception of the ancient constitution. in both Engiand and Scotland the wrinen law made custom mernorial - legislation could be viewed in the records of parliament - and also rendered the custom it codified as nul1 outside ofits legal definition; this would subject the law and the constitution to modification by one king in parliament.55 In England the appeal to the common law and in Scotland the use of fundamentai, "loveable" laws and constitutions were both attempts tu invoke customs that predated historical kings and, similar to stme deckLs, bound each king to conform to them. Tracing and appealing to ancient laws was essentiai to proving the validity, and congruence, of the ancient constitution within an existant mental cosmology that was characterized by hierarchical corporatism - it was conservative innovation. The dissident nobles and clergy in Scotland created the idea of a constitution by claiming that the ancient constitution had always existed. It is now necessary to consider the findamental use of an ancient constitution in order to concepnialize how it was made manifest in Scotland and how it theoretically and pragmatically limited the power of James W. James VI and the Scottish constitutional theorist George Buchanan agreed that the constitution served as a means of societal control over the mler.'%s a consequence of social organization, and the need for a arong and authoritative der, laws were created to establish enforceable modes of j5 Once a custom was codifiecl it ceased to be a custom and becorne a writtcn law. As written law was the product of a king-in-parliament it couid easiiy be allered by successive king-in-parliament. the problcrns tliis could create for the conception of an immeniorial body of cusiom and law. whicli supported a division of powers and fundamental rights. is obvious. '' As dcmonstrated in Chapter 4. condua and intera~tion.'~Essential to the idea of an ancient constitution, and modem constitutions, is the concept of justice. Justice is a normative concept which contains the beliefs a society holds of what ought to be due to each citizen in accordance with moral, natural, ancient or other specified sources of law or nght they, as a society, perceive to be essential. When laws are fomulated to encapsulate this normative justice, with the approval of an agreed upon constitutional process, they are meant to become a codified corpus of enforceable and unwavering regulation.s8 When laws cannot be enforced they too become normative. Laws are agreed upon expressions of the Limits placed on the actions and rights of individuais with respect to one another and in relation to the Crown or government of their realm; without consensus, and the power to enforce the laws, they become the normative expression of an impotent governrnent and an unmly society. In the Scotland of James VI, enforcement of the law required the acquiescence, cooperation, and power of the magnates. Feuds arnong the nobility were particularly devastating, as the king lacked the power to enforce the law by himself In an early letter to Colin, Sixth Earl of Argyll, the young King expressed senous concems: specialie concemyng the honour and suretie of our persoun and estate... the repressing of the thevis and disorderit personis; and govemyng of our gude and peaceble subiectis in gude tranquillitie, peax and justice: It is maist requisite that we haue the gude avyse Such a statement. though it may seem speculative. has the force both of observable crosscultural prdctice and the validity it derives from king the essential ideological concem of Thomas Hobbes. John Locke. David Hume, Jean-Jacques Rousseau and many others. For an iniroduction 10 Uiis line of inqui- see Emest Barker (ed.). Social Conlract: Essavs h Locke. Hume. and Rousseau (New York: O.dord University Press. 1962). " For a discussion of the development of the concept of justice in the western world sec J.E. Esbe- and L. W. Jolinston Democracv and the State. (Peterborough: Broadview Press. 1993). and concurrence of our nobilitie. and that the occasionis of grudges displeasouns and querrellis standing arnang thame.. .be taken away.5g In his attempt to secure tranquillity, peace, and justice, James attempted to exert royal control, but he was aware that the power of the royal courts to repress thieves and disordered perçons depended upon the cooperation of the nobles. Paradoxicdy. the nobles served not only as a check on the Kuig's power, but also as the embodiment and determinant of that power. The law, justice, and the ancient constitution were al1 components of an ongoing political discourse. If we dehe politics as the manifestation of power relations between and among those who make and enforce the des, Iaws, and decisions which regdate and control the members of a comrnunity. society, or kingdom, and those who are subject to them, it becomes apparent that the situation in sixteenth-century Scotland was subject to a multivariate causality. Clearly an essential part of this discourse concemed conceptions of what constituted justice. Political justice entailed the normative view of the nature and extent of the Crown's power and authority and its relation to various groups and individuals in Scotland. The legal and legislative processes operated within a hework that ostensibly provided a base of fundamental Iaws which defined the role of individuals, of the govemment, the King, and other sociaVpo1itical estates within the kingdom as they nullified, amended, and discussed the creation of laws that satisfied the community's standard of justice. That the community's, or specific interest groups in the society, had standards that were variable and at times i~ovatorydoes not detract fiom the discourse '"exander Macdonald (ed.).Lenen to The Argvll Familv: From Elizabeth Oueen of Endand Mm Oueen of Scots, King James VI, King Cliarles 1. King Cliarles II. and others. (Edinburgii: AMS Press. but rather gives it histori~alimportance. When the laws, policies, or actions of the supreme authority did not conform to these notions ofjustice, conflict followed. This is what happened in sixteenth-cenhiry Scotland. Prior to discussing James VI's conception of the fundamental constitution of Scotland, it should prove efficacious to examine the vision of other constitutional and legal experts of the Mie. The legal scholar Sir James Balfour outlined the basic structure of the fundamental laws of Scotland in his Prociicks written around 1 ~79.~This work provided a guide to the constitution as it was revealed in statutes that were considered by Sconish lawyers to be legally binding in the early years of James VI's reigdl According to the digest of Scots law compiled by Sir James Balfour of Pittendreich, there were three sources of law in Scotland: 1) the law of nature, "quhilk is written be the finger of God, or of nature. in the heart of man," and which comprised such natural systems as the famiiy and the human body, 2) the law of God, "quhilk is reveillit. and declarit in his maist halie will and word", and 3) the positive law, "quhilk is made be man allanerlie [~nl~]."'~The interaction of these three sources of law can be quite conhsing. Out of these sources corne ideas of the fundamental laws ador constitution, the King's law, and the common andfor cuaomary laws of Scotland. Under James IV in 1503, and on other occasions, atternpts were made to enforce uniform acceptance of "our soverane Lordis awin lawis, ------1839). p. 19: "hies VI. to Colin Sixth Earl of Argyll. Febnmy 18. 1580." James Balfour. The Practicks of Sir James Balfour of Pittendreich Peter G.B. McNeilI (ed.). (Edinburgh: lüe Siair Society. 1962). Practicks were a fonn of legai collection Uial containeci eiiiier privaie noies Laken in the course of a legai prdctice, decisions and observations of judges and courts (decision practicks). or Ihey were a compendium of various sources such as statutes. decisions. and Add Law (such as die Regiam -Majesfateniand the Quoniam .-lriachiamenta) placed in a semi-formai arrangement (digest practicks). pp. 38-39 of the Introduction. "~ord Cooper. 'From David 1 to Bruce. 1 124- l329.'in An introduction to Scottish Legai Hinoiv bv Various Authors. (Edinburgli: Stair Society. 1958). p. 5. "Elalfour. Practicks. p. 1. and the commoun lawis of the realme, and be nane uther la~is."'~The obvious problem was defining the corpus of the "commoun lawis" and discovering its political derivation. Balfour cited a statute fiorn the reign of Robert Bruce which suggested that the king "with counsell and expres consent of our Bischoppis, Abbotis, Priouris, Erlis, Baronis, and haill Communities of our realme, in plane parliarnent.. .hes, be our royal authoritie, maid, ratifiet and approvin, divers and sindrie lawis and con~titutionis."~This could have been an influence on the view later articulated by James VI that the parl:fament was an advisory council that ody made law through "royal authority". If a question of law arose that was not deait with in the extant written laws "the decisioun and declaratioun thair of aucht and sould be refemt and continuit unto the ni* parliament.''G5 These statutes suggest that the parliament exercised the higheçt judicial authority, played an active role in the legal system, and was the supreme legislative body. Judges in Scotland could not alter or make laws as the common law system in England dlowed; instead precedent was determined by statute such that the laws "may be cleirlie maid be the Lordis of the said parliament, how the said questioun, and dl uther siclike, sould be decydit and redit in time to ~um."~~In Balfour's pages, the Sconish Parliament appeared to have had much greater power than some scholars, such as R-S.Rait, have suggested. '' Ibid.. p. 4. This law appears to be the reiteration of a law of lames 1 which declared: "the Kingis lieges of the rdme leive and be governit under the Mgis lawis and siatutis of die realme allanerlie. and undcr na particuair laivis. na special privilege, na be na iawis of uther countreis nor realmes." (p.4) la.1 acta 83. 1425. it was reimcted during the reign of James VI in the fourth act of the Parliamen1 of 1581.to discredit the legality of the acts of tiie Generai k~nbl-. 6!Balfour. Practicks. p. 2. Roberti Bruce Statute I. cap.29. Constitutions, as uscd here. refen to a series. or Iramework. of laws - not. in tiie modem or "ancient" constiiutional sense. as a set oflaws and prdctices wliich delineate power relations in a kingdoin. 6 Ibid.. p. 1. Ibid. W'hen lames became King in 1567, his coronation oath taken by his regent the Earl of Monon, pledged him to de"according to the lovabill lawis and conaitutiounis ressavit in this realme."" The king was to foilow the laws, statutes, and customs of the reaim and he was "nouther to eik [add] nor mynyss [subtract] without the consent of the thé e~tates."~'These words are an expression of the customary practice, or fundamental laws, that the estates believed the king should obey. In no sense did it contradict the theory and practice outlined by James in The Trew Law of Free Monarchies or Basi(iko~t Dorm, wherein the sovereign law-making power of the king-in-parliament was explicitly stated. Obligations and limitations were reciprocd accordiig to the sources quoted by Balfour, and the parliament found itself berefi of the authority to depose Mary Queen of Scots; the authority to do so came "be vertew of hir letters of commissioun and procuratioun, subsn~itwith hir hand, and under hir privie sei11."~~Ironically, the Queen had to use her own royal authority to remove herself and place her son on the throne. The parliament was clearly not omnipotent, but it was also far from impotent. Traditionaily histonans have characterized the Sconish parliament, and the positive law it produced, as a weak institution controlled by the king.'' Jenny Worrnald has 6- Ibid.. pp. 7-8. Ibid.. p. 8. It is ciear that this oath referred to the binding nature of positive law. which could only be dtered by Parliament. 63 Ibid.. p. 4. 'O 'O This interpretation seems to have emanated fkom two secundan, sources: R S. Rait. The Scomsh Parliament before the Union of the Crowns. (London: Blackie and Son. 190 1) and C.S. Teq. Scottish Parliament. Its Constitution and Procedure 1603- 1707, (Glasgow: J. bbcLehose and Sons. 1905). The? created the view of Parliament as little more than an organ of the Royal wvill. An uncritical acceptance of tiiis interpreiation would be comparable to an English liistorian regarding the works of S.M. Gardiner and Wallace Notestein as containhg the definitive interprelation of earIy Stuart Parliamentary histoy. Even Gordon Donaldson continu& this trend in lus book ScolIand: James V to James VIL (Edinburgh: Oliver and Boyd 1965) by asserting rhat -the business of the Iiouse was si~nply the accrpmce en bloc of the legislation prepared by the government."(p. 283) This assumes ihai tlic "governrneni- was a cohesive group of yes-men and Ilmi the Parliament lacked a negalive vote. Most iustorians lwe not attempted to reconcile tlUs monolithic vicw of tiie Prh3 Council and Parliament uith challenged this onhodoxy by assening that an "extraordinary inconsistency in Scottish historiography is the idea that it parliament] was a sedebody, in which rnagnates who were the main attenders, shed their power with their cloaks at the parliament door, and became as cooing doves."" This issue has immediate relevance to the constitutional discourse of James VI and the legal scholars of his time. In terms of the sources that Scots lawyers actually considered to be authoritative, the onhodox view seems faulty. Contemporary lawyers were willing to quote and incorporate statutes, practicks, and the writings of Institutional writers in theu practice of law? The onhodox view would suggest that oaensibly weak aatutes were the basis of the Scots' conception of their law and constitution. This misinterpretation arises fiom a false dichotomy that has been introduced to the study of Scots law. Scots viewed common law and statute law as being expressions of the same legal code. It would seem unusud that the law and order minded the veiy rdfact that tlie nobles, whom tliey agree were very powerful, made up bolh of ihese bodies. Recent scholars seem to have adopted the orthodox view without bothering to meet a burden of proof. For an example. see AH. Williamson Scottish National Consciousness in the Age of James VI. (Edinburgii: John Donald Publisliers Ltd.. 1979). pp. 7-8, and Brian Levack "Law. sovereign~and the union" in Roger Mason (ed.). Scots and Britons: Sçotîish Political Thounht and the Union OC 1603. (Cambridge: Cambridge University Press. 1994), p. 2 18. In his paper. Levack refers the reader to lus monognpli Formation of the British State: Enaland, Scotiand and the Union 1603-1707. (0-dord: Clarendon Press. 1987). p. 92. where lie sirnply restateci the clah wiihout providing evidenœ of the ineffectivenesi of statute law or Parliament. Ironically Levack argued tint: "It was the Scottisli acts. rather than Scottish custom or common law. which formed the basis of the Scoltisli conception of tlieir 1aw."- 'Sovereignlt ' p. 2 19. Compare tlus to Stephen J. Davies "The Courts and the Scotiisli Legal System 1600- 1747" in Gatreil et al. (eds.) Crime and tlie Law. where lie slated that: ''Moremer. it [Scottish Iegal system] rested much more th;in in England upon custom and usage rather Lhan Statute law."(p. 12 1). Scottish la1~3ers. politicai theorisis. and the king, al1 seem to have knmuch les conhised about the power of iheir laws and Parliament. -' Jemy Wormald -James W and 1: Two Kings or One?". Histop 68 (1983). pp. 187-209. See also her Cowt Kirk. and Cornmunitv: Scotland 1470-1625, (London: Edward Arnold. 198 1). specifically pp. 136-9 for a discussion of Parliament's strengiil. For an understanding OC the king's relations with his nobility. see also Jennifer Brown (Wormald) "Scottish Poiitics 1567-1625" in A.G.P- Smith (ed.) nie Reim of James Vi and 1. (London: Macmillan, 1973), pp. 22-39. -9 - For esample. one cm see the reliance on these sources in the writings of Balfour and Thomas Hope who frequentiy quoted them as auiiioritative sources of law. Institutional ivriters are those auliiors wliose witings on the law in Scotland were considered to be authoritative expressions of thc law: Sir Tiiomas Craig is considered one of the first Institutional uriters, his works wcrc quoted by Thomas Hope. James went to such lengths (as writing two tracts) in order to prove that he was the author and source of ineffectua1 laws. If statute law "frequently fell into desuetude immediately upon enacunent, and, indeed, those who wrote such natutes expected no differently," as Arthur Williamson has suggested, why did lawyers quote and defend statutes as the highest form of law?" Among such defenders of statute law were George Buchanan, lames VI, Sir James Balfour, Su Thomas Hope, and Sir Thomas Craig. Contemporaries apparently did not consider statute law as weak. Another view of the constitution can be gieaned from the writings of a working lawyer, Sir Thomas Hope, who needed a clear understanding of the limits and origins of power in Scottish society." In his decision practicks, entitled the Major Procrick.~,Sir Thomas Hope provided a working version of the Scots constitution which made extensive use of Balfour's work, but the points of similarity between the two need not be developed systematically here. Hope outlined the priority of the different sources of law in Scotland when he quoted a 1540 treason case where the absence of municipal law (Scots law) was made up by use of the civil law: ITEM, in 1540 c.69, ther being sumonds of treasone persewit at the king's instance againes the airs of one Robert Leslie, to heir and sie him forfaulted for cryms of treasone committed befoir his deceis, it wes murmured as ane novelty that a dead man should be accuised. The summonds wes founded upon the comon (or civill) -3 Williamson Scottish National Consciousness. p. 8. The suggestion îhat a law could immediately fdl into desuetude is confusing: by definition desuetude was disuse. disuse rcquires the laps of timc in order to be estabfished. - 4 Thomas Hope. How's Maior Practicks: 1608-1633. I.A. Clyde (cd.). Vol. 1 (Edinburgh: The Stair Socicty. 1937) Such an widcrstanding mas crucial to cffcctivc achaq. Onc nccdcd to know ihc lcgal limits of a litigant's -king or commoner's- power and obligations in respect to other social and politicai entities. Rather that engaging in a theoretical debate on the consiiiution, Hope needed an understanding of the practical Iegal applications of the constitution in Scotland. His treâtise "consists of a collection of notes or jottings such as a bepractitioner might be c.vpecled to deas memoranda Tor tiis own professional use. Along with the -Minor Practicks'. liowever. it is the only written exposition of Scots La!+ exiant ktween Baifour and Craig on Ille one hand. and Stair on the other.-( [rom intro. p.siii) iaw; and the estaits, being consulted, fand and concluded that the king had good reasone to persew that summonds and aii uther sumondiss of treasone conform to the comon law, good equity, and reasone? albeit ther wes na municipaii law maid therupon of befoir." Here Hope supported the view of the laws of Scotland as supplemented by the civil law, and he verified the role of parliament as the arbiter of judicial decisions. Later Hope commented that: "Customs have bein before lawes; for the corruption of customs did first enforce the necessity of written lawes to reforme them."76 Customs held historid priority of place and written law represented a purified form of earlier customs. This line of reasoning has ramifications for James' theory of the king as law-maker and for historical interpretations that have subjected custom to law or, altematively, have viewed custom as superior to written law. If customs existed before written laws, did they also pre-date kings? Such a position could deflate James VI's view of kings as the makers of law. Custorns, Hope stated, were "the first part juris positivi," and as such were human When customs conflicted with a statute law, however, the statute law was to be preferred as it was a written codification of ancient cuaoms: " in the concurse of diverse dispositions of law and custom, the law should be preferred...To adrnmitt customs against a standing law wer to authorize wrong: for quhatsomever controveins the law is ~ron~."'~Hope made a sharp delineation benveen law - written statute - and the potential source of law known as custom. Hope admitted that a law could lose its authority through desuetude or by the growth of an alternative custom that would replace, in the rninds of the people, the - -- - - C - Hope, Maior Practicks. p. 3. -6 -- Ibid.. p. 4. Ibid. original. This would suggest that the people were af5ecting the law rhrough their own actions, and that the king-in-parliament could lose his or her law-making initiative to the populace. Hope countered this suggestion when he asserted the prevaient view of a monarchical constitution: "Bot yet a law may be abrogat be desuetude or be introduction of contrarie customs quherby the law becoms to be forgotten insensiblie ... this hes place rather under a popular governent then in a monarchie quher the fawes ar mazd be ihe prince. Our King acknowledges no s~~erior."'~For Hope then, the laws of Scotland issued from several sources, including custom, statute, and the civil law. Within this Iegal hierarchy greatest authority Lay with the municipal law made and modified by the king-in- parliament. The parliament was the highest court of appeal with the power to alter and pronounce upon issues of customary law that were not already embodied in statute. Ln the writings of Sir Thomas Hope, the Scottish legal system was not at variance with the James VI's view of Scotland's constitutional position. Aithough Hope placed a greater emphasis on custom than did James VI, his account was compatible with the theory James had put forth. It remains to review the position of the legal theorist and scholar Sir Thomas Craig of Riccarton in order to understand his vision of the Scottish constitution. Sir Thomas Craig was the pre-eminent legal philosopher in Scotland in the late sixteenth and early seventeenth-century. A Scottish lawyer and legal scholar, he was a friend of George Buchanan and one of James VI's nominees for the Union Commission established in 1604 to discuss the viability of a union between Scotland and England. Craig was a personal bridge between two discordant versions of the Scottish constitution. In his discussion of the potential union berween the king doms entitled De U~tiomRegnomm Briramiae Tructatztrs (1605), Craig made a powerful contribution to the constitutional issues of the day. The tract itself was a sprawling compilation that drew £fom medieval English chroniclers such as Geofiey of Monmouth, classical sources such as Anstotle, Herodotus and Homer, the Bible, as weli as Scots and English law. Craig argued that Union was a necessary and natural occurrence that would bring intemal peace and stability to Britain. Monarchy, Craig assened, was instituted by God as the best form of government for His chosen people.g0Since it was preferred by God, monarchy had to be the best fom of governent for a comrnonwealth. God did not stop at simply validating monarchy as the best form of governrnent, but fùrther enjoined that it would be hereditary, "lest any should twist these words to lend sanction to an elective kingship."gl Craig's argument was consonant with elements of James VI's treatises which emphasized the divine origin of kings and firmly supported heredity. However, both of these arguments were contrary to the position of George Buchanan who denied kings their divine origin. For Craig the monarch's pnmary duties were judicial and martial; the king was to administer justice and lead his people in war. Aithough the Sconish Iawyer did not devote an inordinate amount of spact to the divine right aspect, he bolstered it with numerous references to the Bible. Utiliing histoncal examples and arguments drawn from natural law, with analogies based on the family and the body, Craig illustrated the disruptive nature of democracy and arktocracy: "For a family is but a monarchy in miniature, and a monarchy -'Ibid.. p. 5. My emphasis. 80 Thomas Craig. De Unione Regnonun Britanniae Tractatus. C.S. Tcq(ed. and trans.) (Edinburgh: Scottish Histo? Society. 1909). pp. 227-9. Craig, De Unione. p. 228. a family on an ampler ~cale."~*Should the authority of t he father be challenged, a conflict of authonty would arise and the family would be rent by divisive forces. The same was tme of monarchy. Craig atternpted to prove his case negatively; the destructive nature of division was used to iiccentuate the aability of a monarchy as a unitary source of authonty. Britain, Craig suggested was a single state (civitas) as evidenced in its cornmon langage and ~aws.~~It was analogous to a family and two mlers, or fathers, could only result in warfare and acrimony. He also believed that Britain was like a corporation in which it was incumbent on the component parts to work in tandem for the cornmon good.8' This line of reasoning was carrïed tùrther when Craig appealed to the cornrnon Medieval conception of the state as an organic body, with the monarch (the head) as the sole source of authority working with the CO-operationof the other members (body parts). Divided authority would mean two heads on one body and therefore a corporeal monstrosity, of which Craig provided examples. Now that he had provided evidence in suppon of a unified monarchy for Britain, Craig also commented on the nature of authority within that sarne unified systern, arguing that: "the distribution of any kind of authority among several persons results in the destruction of a~l."~~Despite the importance of padiaments, they couid not be set up as a competitors for authority: authority and sovereignty should be placed in the hands of one person. Although strongly concerned with unity, Craig placed ultimate power in the hands ------" ibid.. p. 230. 83 ibid.. p. 23 1. '' Ths corporation Craig emisaged in legalistic terminology: "And again Britain is as it were a corporation such as lavers describe a corporate body to be. In il every member's dut! is to nourish to avert exteddanger frorn. to bend eves nerve upon the security and well-king of the whole body corpordte. and io work together to presenc and guard it." Ibid.. p. 233. 8 5 Craig, Dc Unione. p. 238. of the people. While proclaiming himself unwilling to engage in the debate over constitutions, Craig came dom in favour ofmonarchy as a polity chosen by the people: I advance this single point in support of a monarchical constitution: That although politicai power has aiways resided ultimately in the people, who cm choose the forrn of government they prefer, and have often overthrown ill-doing tyrants, yet in al1 the long centuries of the worid's existence, monarchy has been accepted by nearly every people as the most perfect form of govemment.86 This statement placed ultimate sovereignty with the people while it simultaneously asserted that monarchy was the best constitutional form. The problem, in this case, derived From the definition of the terni consritution; as a forrn of government. monarchy had gained nearly universal acceptance, however. the locus of power - with political power as a constitutional (fundamental) element - remained with the people. This followed Buchanan's derivation of political power frorn the consent of the people and was at variance with King James who viewed Scotland as the product of conquest. Although, Craig went on to suggea that monarchy provided the basis of good govemment, and placed authority with the king, who alone could keep the body politic in equilibrium and ha~mon~.~'In his system political power originated with the people and was devolved on the king; this was a clear constitutional divergence from the view of James. Authority in the state was to be wielded by the king' but the corporate body of the state had an unseen second head in the 'people'. How this monarchy was to function and whether or not the people retained powers which they exercised through the estates remained unclear in Craig's account. 3 6 Ibid.. p. 239. 9 - Ibid.. p. 240. There were more constitutional eIements in De Diziorie and these were linked to the legai synems of each kingdom. Given Craig's professional training, it was not surprising that he wrote a considerable amount on the possibility of legal union. In fact however, he used the first six pages of his chapter on the legal union to prove that countries did not need identical legal systems in order to function as a unified tat te.^' Craig sought to prove "that to promote the union which we have in view, it is by no means imperative that the two kingdoms should submit to identical laws and ~~sterns."~~his represented a vital caveut?which suggested that the union under discussion need not be perfect or incorporating. The rest of Craig's chapter was iittle more than an exercise in legal theory which attempted to demonstrate that the legal systems had a common source and could be joined under certain circumstances. He did not however. at any point in the treatise, advocate a union of laws. The constitutional role of the law he took to be manifest: "The revision of existing laws which have taken root in national sentiment is, indeed. a hitful source of trouble; for a change in the laws goveming a state ofien changes the character of the state itsel~"~The law determined the power relations and the responsibilities of individuals and institutions within the kingdom. Craig did not want the constitution of Scotland altered by the union; he was protecting the sovereignty of Scotland while advocating the unity of Britain. The common law system of England, with its claim to be part of an ancient constitution, was vigorously attacked by Craig. He outlined how the laws of England were subjected to alteration and obliteration by conquerors such as the Saxons and Ibid.. pp. 297-303. 83 Ibid.. p. 303. " Ibid.. p. 303. Normans. The view of an indigenous and immernorial legal system was chailenged and his account implied that kings had the power to alter England's ~aws.~'He argued that the law in Engiand and Scotland was drawn from a common denorninator - feudal law. Although the systems had developed along different paths and contained unique procedural characte~stics,they could be made complemenrary if the original feudal sources were used as a base of existing la^.'^ Despite the differences: '730th give the first place to the provisions of statutory or Parliament-made law, provided the subjea at issue is dealt wit h, permitted, or prohibited in any statute."'' Coming fiom Craig, this supported the view of Parliament as a vitai constitutional component in Scotland. Theoretically it was possible to unite the laws of each country and produce a single body of law to match a single political body. Craig did not accept arguments that suggested the existence of a monolithic ancient constitution that had existed from time immemorial to his present. He traced the major source of law to the Continental feudai system, which was mitigated by civil and customary law as it was introduced to England and ~cotland.~~His reliance on feudal law contained the implicit suggestion that power was derivative from the feudal superior - the king. He also contended that statute law had prirnacy of place in both countries which placed the king-in-parliament as the ultimate law-making author@." This would, as it did in Scotland, place the common law of England, along with its daim to an ancient " Scc Pocock Thc Ancicnt Constitution. pp. 53.8485. for a discussion of Craig's cmphasis on tlic cffcct William the Conqueror iiad on the laws of Britain and for the iinks Craig made between Ilte feuciai law and botfi kingdo~ns. ibid.. p. 327. 33 Ibid., p. 320. "' Ibid.. pp. 309-3 12. '5 Ibid.. p. 320. constitutional status, under royai and parliamentary control. Such a Mew was in keeping with James' conception of the constitution of Scotland. The position of royal sovereignty was also supported by Craig in another work entitled Scotkmd's Sovereignry Asserted. In this tract Craig stated: "Laws cmot be made by any one who has a supenor, nor can any man cal1 a Parliament who hath not the Right of Sovereignty and ~ajesty."~The people and parliament both had a superior, either from the feudal perspective or fiom their choice (in Craig's conception of monarchy) of the king. Through feudai obligations the overlord had the power and right to dictate to his vassals; the king was the feudal overlord of the kingdom and the feudal superionty of the monarch suggested that his power to make laws (by calling a parliament) was absolute, no one else had the authority to cal1 a parliament. In the instance where a king was chosen by the people the law making authority remained the same; the people had conferred a superior status and right of sovereignty and rnajesty on the king which allowed him to make laws. The union Craig outlined was not intended as an example of the subjugation of one kingdom to the other. The two countnes, though sharing a common sovereign monarch, needed to be viewed as distinct but equal partners in a union of friend~hi~.~'Each country moreover, would retain its own laws, customs, and thus constitutions. The king was the linch-pin; he was a king in each unique kingdom, and needed to behave as such, while remaining the unifjmg factor that would keep each nation functioning as a well-adjusted family. The union was more than a treaty, it was "the union of two peoples under a single Thomas Craig. Scotland's Sovcreignh. Asserted. translated by George Ridpath. (Edinburgh: Andrew Bell. 1695). p. 422. 9- Cmig. De Unionc. pp. 46 1462 lord and king ...the fashioning of a single people, kingdom, and monar~h~."'~The king would be the common father but the rules for his children would be indicative of their respective households. Thus the constitution of each kingdom, thou& not imrnernorial, remained inviolable and inehcably linked to their respective legal systems. With an understanding of the practical legal definitions and use of the Scottish constitution, it is possible to examine the historical events that surrounded James VI and intluenced his, and others, conceptions of Scoaish politics. It is essential to a correct reading of James VI's constitutional theory to understand how his contemporaries interpreted the legal limits of the crown. James, more than his predecessors, made extensive use of the legal machinery availabie to him, and his goal was the "execution of good ~awes.''* Working within the Scottish legal framework not only gave the laws greater authonty, but suggested that ail subjeas, great and common, would be subject to the mle of laws made in parliament not, as practice dictated, the tribal codes and kinship obligations of clans and nobles. 9s ibid., p. 467 James VI and 1. Kim James VI and 1: Political Writines. J.P. Somrnenille (ed.).(Cambridge: Cambridge üni\.ersii>Press. i 994). p. 20 Chapter 3: The Practical Exetcise of Pmver In sixteenth-century Scotland, control of the king meant control of the kingdom. in August, 1582, a group of disenchanted nobles and their followers, including the Earls of Gowrie, Mar, and Glencairn - with the help of Lord Lindsay and the Master of Glarnis, decided to take control of the kingdom. Accordlligly, they seized the young King lames VI while he was hunting in Athol, near Ruthven Castle. The King was detained in the castle by the rebel Earls thus eaniing this escapade the title "The Raid of Ruthven". These rebellious lords consequently presented an obsequious supplication to the sifieen-year old King in an attempt to justfi their action as an "honea, Iawful, necessare and rnost godly interprise."'OO Their immediate focus was on the King's de fado regents, the Duke of Lennox and the Earl of Arran, who were presented as oppressors of the king's nobles, the Commonwealth, and especially of the "true evangel" . Representatives of the reformed Kirk would certainly have concurred with the last point. The King's advisors had been under attack fiom members of the Kirk prior to the "Raid of Ruthven". The General Assembly feared "the danger wherein the king stood by the Company of wicked persons, who did seek to compt him in manners and religion," and some were quite specific: "Amongst others John Dury did exciaim mightily against the duke of Lemox, upon whom the blarne of al1 things was laid, and thereby did so imtate the king as 100Da\-id Caldenvood. The Tnie Historv of the Kirk of Scotland. (Menston. Yorkshire: Scolar Press. 1678 ed. 1971). p. 129 he would needs have him removed forth of the town."lO' Clearly there was dissatistàction with the governent of Lennox and Arran. The supplication of the Earls described how Lennox and Arran had attacked the King's loyal estates through the use "of Lawes, Acts, [and] ~racticks."'~~This meant that the legislative, executive, and judicial powers of the State were being manipulated to the detriment of some nobles. Control of those powers was an integrai part of the realm's constitution. The nobles, anxious for access to the King's largesse, were particularly perturbed by the loss of office and infiuence they had experienced; they suggested that papias and murderers of the king's father were "daily called home, restored to their fonner honours and heritages, and ofientimes highly rewarded with Offices, roomes, and possessions of your most faithful ser~ants."'~'This supplication encompassed both an attack against evil councilors and constitutional elements both evidenced by arguments against the improper use of such institutions as Parliament, the Pnvy Council and the legal system by Lemox and Arran. The King himself could do no wrong. The Ruthven Raiders carried the discourse even further when they suggested that their own role in the kingdom had been usurped. This argument they presented in the language of the ancient constitution: "Finallie, Sir, your Eaate Royal is not governed by the councel of your Nobilitie, as yoirr most worrhie Progenitors trsed to do; but at the pleasure of the Persons f~resaid."'~~Here they claimed that the King and his councilors 'IN~ohn Spottiswoodc. Historv of the Church of Scocianb (Edinburgh: Sponiswde Society. 185 1 ). p. 288 [herealler cireci as Spottiswoode. volume. and page] Lemox was quick to translate the actions of the Eürk into a constitutionai contest by asking: "Wietiier the king or die Church were superiors;" i+hen pressed by clle Kirk for his enteriaining of Lhe excommunicated Bisfiop blontgorncq. (p. 289) '"2~aldenv006True Historv. p. 130. '"'lbid. ""'lbid. My cmphasis. were bound by ancient practice to act only after receiving the council of the nobles. The King, accordingly, had to be safeguarded against edcouncillors who did not seek such advice. The King hirnseif was accused at no point in the supplication, nor was his theoretical authonty constrained. The first intimation of this coup d'etat in the official records appeared in the fonn of a declaration issued by the King tiom Perth on August 28, 1582. The sederunt for this Privy Council meeting included many of the principal Raiders. In effect, governrnent of the realm was under the control of the rebel Earls; following the king's declaration however, their aatus changed from that of rebels to that of righteous and lawful subjects, who had effected a change of government in the king's and country's best interest. They became known from this time as the "Lord Refomers''. The king declared that: his Majesties remaning in the said burgh is nawyse forcit, compellit, nor constrenit for feir or terrour of ony man, nor that he nawyse is detenit heir aganis his Hienes will, bot that, as of his awin fie motive and electioun his Majeaie hes chosin to remane a space within this toun.. . sa hes thair nathing yit bene done nor attemptit be ony nobleman or utheris heir present bot that quhilk baith becumis thame of their dewetie and quhairof his Hienes allowis as gude service done to him and to the commounweill of this thair native antrie. 'O5 Despite this justification, subsequent events would suggest that the declaration was delivered under duress. One source suggested that the king, testing the sweet words of his captors, attempted to leave their Company, at which point the Master of Glamis blocked his way and informed him that he could not go. Aiternately affronted, enraged. and fiightened the young king "grew into a passion, and after some threatening speeches ''" Da~idMasson (ed.). The Reg;ister of the Priw Council of Scotland 111. (Edinburgh: H.M. General Register House. 1880). p. 508. Herder cited as R.P.C.. volutne. and page. burst fonh into tears. The Master seeing him weep, said 'It is no maner of his tears, better that baims should weep than bearded men. ,,?LOG The Raid of Ruthven and ten months of govemment under the auspices of the Lord Reformers, served both as an essential background to the years following it and to conceptions of the King's power. The comment made by the Master of Glamis revealed that the actions and wiil of a young king were of less consequence than those of grown men enforcing the ancient constitution. in these circumstances the power of the king was non-existent, although his authority remained an essential part of the power and legitimacy of the Ruthven raiders. The "new", reformed Pnvy Council irnmediately began to reverse the policies of their predecessors; Lennox was ordered to leave the country, al1 Commissions of Justiciary were revoked (as they were seen to be instruments of oppression under Lemox and Arran) and the Earl of Arran was placed in the custody of the Earl of Gowrie. 'O7 The business of goveming the realm continued, along wit h fi-equent renewds of the order for Lemox to leave the Kingdom, unimpeded. The Kirk was pleased with the events of the Raid. In their Generd Assembly held in Edinburgh on October 9, 1582, the ministers considered supporthg the Lord Reformers officidy. Mer meeting with the king? who admitted the necessity of the action, the General Assernbly "made an Act, wherein their [the Lord Reformers] Action of Reformation was approved, and the prosecution and following-out of the said good course." 'O8 The act itself went so far as to suggest punishment and ecclesiastical sanction l (-fi Spottisvoode. Histon-.. II. p. 290. IO- RP.C.. 111. pp. 509-19. "'Caldemood Tme Histon. p. 133. against those who might oppose the result of the ~aid.''~Ckarly the Kirk interpreted the king's abduction as a blessing and a constitutionally valid action. John Dury who had been banished from Edinburgh for his sermons against Lennox, returned to Edhburgh shortly alter the King's apprehension.''O The Kirk had been outraged by what it considered the unconstitutional meddling of the previous administration in ecclesiastical affairs. The King was not to blarne as he "was drawne to allow," by the advice of his evil councilors the dispensation of benefices to unworthy persons and, irnportantly. that this was done ''piem jure, & by absolute power, without examination or admission of the kirk, against the Lawes and Constitutions of the ~ealme.""' This argued against absolutist monarchy and in favour of a constitutionai monarchy in which the church and nobles were involved in the malung and administrating of law. Though the Kirk could cornplain and pass excommunication on individuais, it possessed only a minimal power to coerce. For this and other reasons, the nobles were the key to power politics at this time. As dl legitimate authority sternrned 60m the crown, possession, coercion, or compliance of the king was essential to the successfU1 exercise of power. The Raid of Ruthven contributed to King James' view of the nobles as characterized by "a fectlesse arrogant conceit of t heir greatnes and power." ' l2 This comment was the mature formation of a view formed by the young king for whom tears were the only recourse when faced with the power of his nobles. The Kirk had not only attacked his old councilors but had, through its highest body, ratified the actions of an Ici3 Spotti~~:oode,Histon-. Li. p. 295. ''O James Melville. The Autobiophv and Dia- of Mr. James Melvill. Robert Pitcairn W.). (Edinburgh: Wodrow Socieiy. 1842). p. 131. 111 Caldenvood Tme Histon. p. t 3 1. umly faction of nobles. In so doing. the Kirk legitimized and supporteci amed resistance to a monarch and his established councillors. The Raiders assumed control of the Privy Council and began to transact 'business as usuai', seemingiy confident that they had accomplished their task. in the short term, they had accomplished their goal: the last charge ordering the Duke of Lemox to leave the realm was issued on December 13, 1582; he complied and died five months later in France. The King ended his captivity to the Lord Reforrners in June, 1583, when he fled, with the assistance of Colonel William Stewart, acting as Captain of the King's Guard, fiom FaIkland to St. Andrews where James summoned other nobIes to his side. On July 2, 1583, in a Privy Council held in StAndrews, James issued a declaration which stated that the feuds among the nobility necessitated his removal to St-Andrewsand that the Privy Council would thenceforth consist the Earls of Huntly, Crawford, Montrose, and Argyll along with the less powerful lairds and noble^."^ This presented a clear message to the Lord Reformers that they would be facing the might of many powerfùl Earls should they attempt to recapnire the King. The next meeting of the Privy Councii, on July 4, witnessed an order proscribing nobles to corne within six miles of the King while bearïng arms and strialy limited the number of retainers they could bring with them. 11" Obviously the king did not wish to be subject to the kind of amed intervention that he had recently escaped. The King's newly acquired liberty and his increased power as a result of the cornpliance of his powerful nobles, meant that the Lord Reformes and the Kirk were in a "'James VI and 1. Kinn lames VI and 1: Political Writin~s.J.P. Sommenille (ai.).(Cambridge: Cambridge Univenih Press. t 994). p. 28. Il3 R.P.C.. 111. p. 576. precarious position. By the 27th of July, the young King was clearly exening more control and personal authority. He declared that the Duke of Lemox was "a maist humble and obedient subject to our Soverane Lord and his authoritie," and he further declared "that nane of thame tak upoun hand to speik.. . write or prent, in prois or ryme, privatlie or openlie in any publict place, ony sclanderous speitchis, reproche or calurnpny aganis the homour, gude Fame, and reputation of the said umquhile the Duke of ~ennox."~"The deciaration revealed how strongly the King had disagreed with the policy of the Lord Reformers, and it revealed how little power he had to iduence the actions of the Privy Council when it was in the hands of one faction of strong nobles. The declaration also served as a waming to the Lords, and the Kirk, that James would no longer tolerate the capture of his person, nor an ostensible rule in his narne. The summer of 1583 proved to be a propitious tirne. Three days after the declaration concerning Lennox, the King issued another proclamation declaring that "he had it alwayis in thocht, sa sone as God sould offer propir tyme and occasioun to tak unto himself his awin place and stait, to schaw him a king indifYerent to al1 his nobilitie and gude suj ectis." 'l6 ~hiswas James' attempt to reassert his independent status while simultaneously informing factions of the nobility that he would no longer tolerate their feuds and the disruptions of his rninority. It was an attempt to establish and exen his sovereignty and authority over the kingdom. He asserted that he would not seek the hurt or min of his subjects who had engaged in the troubles of the minority, particularly the Raid, if they begged his forgiveness. Based on this proclamation one cm conciude that 1 1 .t R.P.C.. III. p. 576. Il5 RP.C.. III. p. 583. 116 R.P.C.. III. p. 586. James was willing to concede that nobles wouid vie for power and engage in feuds during a minonty, but that such behaviour shoufd cease now that he had become an independent ruler. The King felt confident making these assertions while surrounded by supportive and powerhl nobles. In August, the Earl of Aman reappeared on the sedenint of the Privy Council, and later that same month John Maitland was adrnitted to the Council. Il7 As the months wore on, the King and Council appeared to grow increasingly hostile toward the Lord Refomers. In September the Master of Glamis was ordered to enter ward at Dumbarton Castle, on January 3 1, 1583, the Earl of Mar and the Master of Glamis were banished fiom the realm.'18 It was during this attempt to exert royal authority that the King clashed with the Professor of Theology at St. Andrews, the presbyterian Andrew Melville. Melville was sumrnoned to appear before the Council for delivering a sermon that was "offensive and sklanderous to the Kingis ~ajestie.""" In terms of constitutional importance, the speeches of Andrew Melville rank with the events of 1 560 and the writings of John Knox and George Buchanan, as one of the fundamental challenges of the period. Meiville claimed that his sermon was not subject to the authority of the Crown but rather to that of the Kirk, whose sole right it was to pass judgement on doctrine. Melville believed that the actions of ministers and the &airs of the Kirk were under the jurisdiction of Jesus Chria, not James VI. The Kirk was responsible for the condua of its ministers, as Melville made clear to the King: "that the accusatioun givin in against me is of certane words ailedged spokin by me in preaching of "- R.P.C.. III. pp. 590 and 594. II9 R.P.C.. III. p. 626. ""P.C.. Ill. p. 63 1. God's word. ..I protest most humblie, that in respect of God3 ordinance, acts of parliament, conference and practise forsaid, the tiell of the forsaid accusatioun rnay be rernitted to the ordinar judge, which is the Assemblie of the Kirk, as said i~.'''~~The conclusions to be drawn nom this declinator would obviously upset a king. The King's junsdiction and authority appeared to be constrained by acts of parliament, by practise, and by the laws of God. According to Melville, the King codd not usurp the constitutional position of the Kirk, nor could royal courts of justice exercise sovereign power over ali subjects in the realm. Melville's own words made it clear that the power of the King was the issue: "that whether it be by electioun, successioun, or other ordinar middes that kings are advanced, it is God that rnakes Kings; which dl is easilie forgett by them."lzl Therefore, if God made kings and the Kirk was God's representative institution. then the Kirk had power above kings in religious matters. There were many ways to establish a king and Melville encompassed both the elective view of George Buchanan and the heritable view of lames VI under the nibric of Divine Right kingship. The King and Council disagreed and affirmed that the "first instance in caussis of tressoun," were within the jurisdiction of the King. lU James Melville, Andrew's nephew, was present at the hearing and stated that Andrew told the King and Council that they had overstepped their bounds when they endeavoured "to tak upon tham to judge the doctnn, and controll the ambassators and messingers of a King and Counsall grainer nor they, and far above tham!"l2j The Council was unmoved by Melville's daim that there were two --- ''O ''O David Caidenvood. The Historv of the Kirk of Scotland. Thomas Thomson (ed.). (Edinburgh: Wodron Society. 18-43), IV. p. 6. "' Caide~ood.Histon. of the Kirk. IV. p. Y. l" R.P.C.. III. p. 631. Melville. Autobiom~hv.p. 112. kings in Scotland, Jesus Christ and James VI, and declared that "in respect of the said Maister Androis proceidings and behaviour, fint declyning his Majesteis judgment, and sua refuising to acknauledge his Hienes royall estait and auhtoritie," he was to be placed in ward. The location of the ward was changed to Blackness Cade which James Melville assured the reader was "a fou11 holl, keipit be Captan James' men."'" Being under the control of the Earl of Arran did not suit Andrew Melville, who subsequently fled first to Berwick and then to southem England. In a recent work J.H. Bums commented on the constitutional importance of this clash: "the confrontation between Andrew Melville and James VI involved a clash between irreconcilable ecclesiologies, each with immediate and important implications for the way in which royal power was to be con~eived."'~The young King and the Earl of Arran were atternpting to exert a semblance of control and authority in the face of an intransigent group within the Kirk who promulgated theories of ecclesiastical immunity and self-direction. The existence of a body claiming distinct powers within the kingdom - powers that were above the king - represented the seeds of a constitutional conflict. However, the Raid of Ruthven proved to be an efficacious means through which to justie intrusive and increasingly severe restrictions on the Kirk. On Apri.14, the Pnvy Council. meeting at Holyroodhouse, passed an act which denounced ail bands that were made by the Ruthven Raiders and their accomplices and it further declared that noblemen, barons, landed men, freeholders and gentlemen were forbidden "be the motioun of quhatsumevir personis, spiritudl or temporal to deliberat in onie caussis, civil1 or eclesiasticall, quhill his "-' Ibid-. p. 143. '- Bums. The Tme Law of Kingdup. p. 222. Majestie ... declair his expres will be his speciall licence to be grantit to that effe~t."'~'The restrictions on cid gathe~gsmay have seemed justifiable considering the recent events, but those on spirituai and ecclesiastical meetings gave the King greater control over aii levels of the Presbyterian Kirk nom local gatherings of the ministers, through the provincial synods, to meetings of the Generd Assembly. in reaction to Andrew Melville's daims, this clearly marked an attempt by the King to establish sovereignty over al1 aspects of the kingdom. Although memben of the Kirk had already revealed their sympathies for the banished Raiders, this act solidified their defiance to the Earl of hanand their desire for redress. The constitutional position of James VI did not encornpass a division of power and sovereignty between the Crown and the Kirk: there was to be one King in Scotland. An attempt was made by the banished lords to "Liberatè' the King fiom "[t] hat Tyranne, that godless and bloodie Atheist. and seditious Catihe.Jmes Steward, called Edeof Aman, the chef Disturber of the Countrey, Patron of al1 kinds of vice and iniquitie."12' The banished lords returned to Scotland and seized Stirling Cade about the 17th of April, 1584, where they subscribed a band which outhed what they believed to be the most serious grievances. They wrote that there were: "No lawes respected, no man sure of his life, lands, or goods; the whole estate and liberties of the kirk, countrie. and burrowes, oppressed and aboli~hed."'~~This expressed and helped to define an alternative conception of the ancient constitution. When the banished lords demanded redress according to "the Word of God, and lovable lawes and customes of the realme," they "'R.P.C.. 111. p. 6-18. 'T CaIdenv006 Historv of the Kirk. LV. p. 28. :2s Ibid.. p. 26. articulated the components of a constitution, a constitution they obviously believed was both ancient and in the process of being vioiated. The next day orders were issued for lieges to muster troops and rally to the King.lD The rebels fled at the approach of the King's army and the Earl of Gowrie, once jailer to the Earl of Arran, becarne the latter's prisoner and was executed in May. ''O It is apparent that James VI was able to enforce his will and exert his authority when he had the suppon of a sufficient number of nobles. HaWig dispersed the rebels, the Crown appeared to experience a hi& level of power and authority. Perhaps this was partiy responsible for the aas passed in the Parliament held in Edinburgh on May 19 and 22, 1584. These statutes were called the "Black Ans" by the Kirk because they contirmed the King's power over ali estates and subjects. The reason given for the creation of these acts ciearly indicated that Andrew Melville's actions were seen to be a bad example. Melville's refusal to accept the King's authority to judge hirn in ecclesiastical rnatters led to the second act, which specifically endorsed: *'the royal1 power and auctontie over al1 statis dsweili spiritual as temporal1 within this realme in the persoun of the kingis maiestie."13' It further declared the King and his heirs to be judges competant "to all personis his heines subiectis of quhatsumeuir estate degrid fùnctiod or conditioun that euer they be of7 spiritudl or temporalV In dl materis quhairin they or ony of tharne salbe apprehendit."13* This act placed the King's authority firmly over the ministers of the Kirk, making them answerable to the King for any matter, doctrinal or othenvise. If one were '" RP-C.. 111. p. 653. "" Melville. Autobiojzaphv. p. 166. 13' Amof the Parliament of Scotland Thomas Thomson and Cosmo lnnes (eds.).(Edinburgh: 18 1.I-U) III. p. 292. ~crdtcrcilcd as A.P.S..volume. page. 1 "' A.P.S.. III. p. 293. looking for evidence that James believed his office conferred absolute sovereignty over his subjects, this would appear to confimi it. This was an obvious attempt to define the role of the King and to express his jwisdidon, power, and sovereignty. However, this recognition of royal sovereignty was not declareci but passed through Parliament. In late sixteenth-century Scotland, the role of Parliament was crucial. The third of the "Black Acts" of 1584 concemed the authority of the three enates in Parliament it confirmed Parliament as the product of an ancient constitution: "The Kingis maiestie considering the honour and auctoritie of his supreme court of parliament continewit/ past ail memorie of man vnto this dayis as constitute vpoun the fie votis of the thrie estatis of t his ancient kingdome." 133 Alt hough the power of parliament had been questioned, t his institution remained a vital component in the governance of the kingdom "according to the ancient and lovable custome obseruit in tyme bygane without ony alteratioun or dimunition."'" This act was opposed by some members of the Kirk who believed that the it 'kwas made to secure the prelats in their seate in par1iament."'35 Furthemore, this act, when coupled with the twentieth act which affYmed that bishops would exercise their %Il authonty in the Kirk, was considered by a number of Presbyterians to be "flatt contrare the determinatioun of the kirk."'" The act upholding the authority of parliament was supponed by King James who saw no difficulty in attempting to strenghen his power and jurisdiction over al1 causes civil and spiritual, while simultaneously supporiing the power and authority of parliament. - -- - - 13' Ibld. '34 Ibld. Caldenvood. Histon. of the ffirk. IV. p. 64. 136 Caldemood Histon. of the Kirk. IV. p. 64. James expressed his sovereign power over al1 subjects within the bounds of the ancient constitution as he interpreted it. He was not oniy aware of the role of parliament, but he considered it an essential concomitant to his own power, especidy conceming "the lawis and actis of parliament (be quhilkis al1 men ar Parliarnentary sanction not only legitimated the King's daim to sovereignty, but further negated ostensibly usurped jurisdictions and judgements, in particular the act upholding the power of parliament was aimed at the General Assembly which had passed an act legitimizing the Raid of Ruthven. This parliamentary act made speciiïc mention of the Raid and declared that the Kingdom was to be ruled by no other laws than those established by king-in- parliament and by the comrnon laws of the realm.13* The King feared that the General Assembly was attempting to exercise a civil jurisdiction. The Act ended thus: That nane of his hienes subieais of quhatsumeuer qualitiel estate or funaion they be of7 spirituali or temporal1 presurne or tak vpoun hand to convocatl convene or assemble tharne selffis togidder for halding of counsallis/ conventionis or assembleis To creat/ consult and determinat in ony mater of estate/ ciuili or ecclesiasticall (except in the ordinare Jugementis) without his maiesties speciall comadement/ expres licence had and obtenit to that effect.'3g This represented an attempt to bar the kind of assemblies that led to the events of 1560, to the Raid of Ruthven, and to the aggrandizement of secular power by the Kirk. On the whole, these ans appear to have atternpted to curb powers seized by the Kirk and its noble supporters, they were more reactionary than representative of a concerted eEon to estabiish absolute royal power; indeed the king's statement conceming the authority of Parliament powerfully mitigates any absolutist intimations. "-A.P.S.. 111. p. 293. '" Ibid. Andrew Melville was incensed by the acts of Parliament and accordingiy he pemed a tract to inform the continental reformers that the Kirk and the constitution of Scotiand were under assault. Melville believed that a senous change had taken place in the Parliament: For nather durst they reasone of the maters proponit, nor thair efter giff thair voaes and judgments fiilie, according to the wounted libertie of the Eçteates of Scotland, and the laudable govement of our nation; bot, in a new and maist strange maner, the King's will being maid a law and reasone for al1 things, the Presbyteries ar utterlie perverted, the Pseudo- Episcopall tyranie restorit, the King, be a plean law, receaves a full and absolut powar to command and rewll in maters alsweill Ecclesiaçticall as Civill. '" Naturally, Melville could not accept that the parliament had fkeely voted for the acts he found so odious; however, given the actual power the nobility had in relation to the King, it would seem unlikely that they would feel obligated to vote against their own beliefs. The records of acts passed in this Parliament reveal no protestations to any of these acts. It is worth noting, however, that Melville considered the govenunent of Scotland to have been characterized by free votes and judgements in Parliament. Melville clung tenaciously to his view of two kingdoms and two kings in Scotland, asserting that the King could neither prescribe religion nor discipline to the Kirk or its pastors."" This theory was encapsulated in the following comment: "Bot for uthenvayes does he [king] sitt in the Synods amangs the Pastors then he does in the throne of the kingdome arnangs the Esteattes; heir, to rnak lawes for subjects and command, bot ther, to receave lawes From ''' Ibid. ' '' MeMlle. Autobiomphv. p. 159. I rl Ibid.. p. 162. God to obey."l'" The relationship of the laws of the realm to the laws of God was considerably more difficult to delineate thMelville suggested here, nor was the division between civil and ecclesiastical jurisdictions as clearly demarcated as he suggested. The Kirk's main cornplaint was that the Spiritual Kingdom was violated by the intrusion of the King's civil authority. The Kirk, however, had established a pattern of interfe~gwith the civil governent when they felt its actions were inunicable to their interests or faith. In his Appelafion fo the Nobility (1558), John Knox had infomed the nobility that a king who interfered with Refonned faith had become a tyrant and "by your offices ye be bound to repress their tyranny."1J3 This same type of discourse characterized the rules of religion set down by James Melville for the banished lords at Newcastle. James Melville utilized the Old Testament examples and language that was characteristic of the Scottish reformers and concluded: Now, thairfor, seeing the Lord hes maid your lordschipes to haiff these places and rowmes be birthe within your native countrey, wherthrow it lyes on your shoulders, of specid dewtie ...to procure and seik to the uttermaist of your powar the releiff, delyverance, and weil of your naturail nation and Prince, lying this day in sa pitius esteat of captivitie.14' This type of resistance theory was the result of the Reforrnation of 15 17, the actions of 1560 in Scotland, and it had received an extreme exposition in the ktings of George Buchanan. Although James Melville did not achieve the notoriety of his uncle, his writings and speeches were delivered directly to the banished lords and served as the theological and 1.:: %id. ''310hn Knox. "Apcllation to the Nobility ( 15%)" in M.A. Breslow (ecL). The Political Writings of John Knox (Washington: Folger Books. 1985). p. 1 18. "'' Melville. Autobioma~hv.p. 178. ideologicai justification of their actions. in a pamphlet composed on August 10, 1584. entitled Certain Grait Abbusses and Comrp~iotsBI the Kirk alid Comoiît~-weillof Scotfm~d..,Melville commented on many aspects of the constitution. His criticisms concerned aspects of governance that revealed the inseparable nature of the church and state in the sixteenth-centuiy. He felt that the Crown had failed to secure the "truc" religion with: "Lawes nather throwlie weiii maid for punishment of sic hynous crymes, and manie [laws] weili maid wantes execution, lyk athercape wobbes, that taks the sillie &es, bot the burnbarts braks throw tham!""" Therefore the impetus lay with the crown to enforce the laws and to enforce the laws universally in order to prosecute the powerful nobles alongside the less illustrious transgressors. When one considers the constitutional language of the Ruthven Raiders and that used at the recent atternpt to take Stirling, the influence of James Melville and his sympathizers in the Kirk begins to appear as formative: Of this hes sprung the absolut powar, wharbe, as a monster never hard of in anie just govemment, the haill privileges of the thrie Esteates of the Realme is weakened and ahost takin away; be the quhilk Esteates, according to the lovable custom of the kingdom of Scotland, fia the beginning thairof, all things with mature deliberation, fie reasoning and votting, dl things was done, and be the quhilk Kings, passing thair bounds to the wrak and oppression of the Comoun-weill, war corrected and brought in ordour. lui This statement was pregnant with constitutional conditions. We discover that absolute power abrogated the community's standard of justice and destroyed the legitirnacy of an othenvise "just govemment". Further, that the loveable and immemorial custom of Scotland, which guaranteed certain rights, and which could be made manifest in :"'Ibid.. p. 188. I IG Ibid.. p. 192. Parliament, imposed constitutional limits on the King who could. if he mled as a tyrant, be "correct ed. Sorne of the Kirk members remaining in Scotland were also eager ro establish the constitutional role of the king. To this end they generated a Cennrre ofthe Acis of 1584 which, regarding the obnoxious acts, aated: "This dedaration, inglossing upon the secund act, maketh mentioun heere and there of the King's authoritie, some tirne as though it were absolute, and some time as though it were limited and bounded."'"' These Kirk members wanted to know whether this act meant that the King could change the religion of the kingdom according to outside influences or caprice. They would not accept the King as an absolute power and even claimed that the "leamed and sounder sort of the Romanists themselves place a generall councell above the ~o~e."'~'This appeal to conciliar theory intimated that a general religious council would be above the King, as well as the possibility of a simiiar civil institution. The Kirk lacked the power to engage in anything more serious than a theoretical challenge to the King: but their ideas could influence those with power and juste radical action in the narne of God and country. The King could be corrected by a general council of his nobles. Aithough the Black Acts caused a great deal of consternation in the KUk, the following months were relatively quite. Persistent lawlessness in the Borders and Highiands and difficulty with the plague in Edinburgh insured that the King and Council were kept buq? It was not until October 1585 that the king received his next serious constitutionai check. The immediate circumstances were international. An English ' '- Caldemood. Histow of the Kik IV. p. 269. ''lx Ibid. '" R-P.C.. 111. pp. 739.7-16.774. nobleman, Lord Francis Russell, was killed in a Border skirmish on a day of truce. ''O The Queen's ambassador in Scotland linked the murder to the Earl of Arran who, by this time, was the chief political minister in the country. The Unmediate result was that "[tlhe queene was not a little incensed, and gave licence to the noblemen to retume home to their owne countrie.""' The King issued an order for the nobles to muster round him and, on October 29, the Privy Council issued a proclamation against the invading rebels - oflering pardon to al1 who would abandon the cause.lS2The rebel lords were accused of taking the "ypocriticd clok and pretens of relligioun," in order to just@ their "maist heich and detestable tressoun aganis his Hienes persoun, estate and cro~ne."'~~The very next meeting of the Privy Council, November 4, revealed how quickly an ostensibly absolute king could become a constitutionally Limited king. The Privy Council consisted of only seven mernbers, inciuding the King, indicative of the other nobles apparent desire not to interfere. tndeed the King's call for a rnuster came to nought because "things were so prepared at coun by the English ambassador, as the lords did prevent the king in the e~~edition."'~"The Earl of Aman's position of considerable power may have led to the other nobles acquiescence in the rebeihon, indicative of a desire to see official power redistributed. The banished Lords were accepted into the King's favour and their actions justified as "aganis surn privat personis," and not the Kng. 15' Once James had taken care of the retumed Lords temporal concems, they were wiIlmg to accept his demand that the Church Lord Russell was the eldest son of the Earl of Bedford. "' Caidemr006Historv of the Ki& IV. p. 379. "'RP-C.. IV. pp. 28-9. Iï3 RP.C.. IV. p. 29. ''" Spottisvoode. Histon-. II. p. 330. settlement not be changed. The Parliament of 1585 reflected the Lords sudden withdrawal of support fiom the Melvillian Presbyterians. Once again, it became clear that the King's theoretical and legislative powers outstripped his practical power. In practice, James was dependent upon powerfùi nobles who could by force or a withdrawal of support alter the government of the realm. The King's power was conditioned by the nobles and ideologically assaulted by radical Kirk members. David Calderwood recorded a discussion between the Earl of Angus and David Hume, the conversation arose from a sermon the men had just heard. The Earl asked Hume if the power of the King was not unlimited because of God7sinjunaion to obey kings as though they were gods on earth. Hume answered: "that name of gods is not to fiee them from punishrnent, but to admonishe them of their dutie; which, becaus they neglect, they losse the name, and incurre the p~nishrnent.""~King lames' response to seditious slanders emanating from the pulpit appear less arbitrary and tyrannical if this type of conversation was produced by the semons of certain ministers. A Parliarnent was held at Linlithgow in December 1585, the l%st since the return of the banished lords and the downfd of Arran. Acts were passed confimiing and ratifjmg the status of the triumphant lords. This suggests that the institutions of govemment - the Pnvy Council, Parliarnent, and the Lords of Articles - remained in the control of the nobles and had not passed to the young King. The iack of redress for the Presbyterians at this parliament sent Andrew Melville, who had retumed with the banished lords, to the King where James Melville reported that "divers hatt, rouche, and maist scharpe reasonings, haid betwix the king and my uncle, Mr-Andro." resulted in the King 15' 15' RP.C.. IV. p. 30. dernanding a written list of grievances fiom the Kirk.15' These grievances al1 stemrned from the Acts of 1584 and the Kirk generated an interesthg solution regarding the Three ~aates.'~*They declared their desire to maintain the custom of the Three Estates: "Sir, we understand that the ancient libertie of the said Thrie Esteates is lovable and ancient;""" but Popish errors were to be eradicated. includhg the bishops in parliament. Rather than have the bishops continue to sit as an independent estate they suggested that Commissioners from the Kirk's own ranks could form a nib-group of the Third Estate, that of the Burghs. The King's answer was not what they had hoped for; James strongly affirmed the role of bishops and he sharply castigated the Kirk for thinking it could form an estate, or part thereof, in contradiction to the ancient constitution of the kingdom. The 'Black Acts' of 1584 remained a serious obstacle to the King's plan for obtaining peace in his kingdom and the group of solidly presbyterian ministers, who may be called 'Melvillians', were simply not content to let the King meddle in what they considered church affairs. The problem was generated by the close association between politics and the su~valof the reformed religion. Thus, international flairs, domestic &airs, and the household of the King himself, were seen by the Kirk as within their sphere of influence. Anything which threatened the faith aiso threatened the Kirk. Any churchman who supported the "Black Acts" would be viewed by the Melviliians as an Erastian papist. When Archbishop Adamson of St Andrews supported - -- - "6 Caldemood Histon. of the Kirk 1V. p. 469. l Melville. Autobiomwhv, p. 226. 15' 15' It is important to note that the Melville's were oRen nominated by the General Assernbly. or chosen b~ smaller groups represenring the Kirk. to appear beîore the King and to generak position papers for the firk. "'Ibid-. p. 23 1 from --Animaclversionsof Offences Conceaved Upon the Acîes of Parliament Maid in the 'ear 158-C". the King's position in this dispute, he was excommunicated by the General Assembly of 1586. It is wonh noting however, that the moderate mlliisters must have felt the measure to be too severe as it passed by ody two votes. Indeed, the general Assembly could not find anyone who wanted to read the sentence out, it was finally read by an underling of Andrew elv ville.^^ The sermons of the Melvillians continued to denounce the Black Acts and some miniaers attacked the King directly. Given James VI's dornestic problems, the mont to monarchy perpetrated by Elizabeth I at this time, was intolerable. lames, however, was less concemed about the death of his mother than he was about the death of fiee monarchy. He wrote to Elizabeth, who intended to have Parliament suggest a remedy for Mary's treasonous plotting, exconating her for entertainhg such a thought. He did not consider it in keeping with the law of God, or nations "that an absolute prince should be sentenced and judged by subjects; and ifshe would be the first to give that pernicious example of profaning her own and other princes diadems," then she dong would be responsible for the destruction of absolute monarchy.'" lames defended the idea that a prince was not, through God or the law, subject to the recrirnination of subjects. It was at once a denial of popular resistance to a prince and an affirmation of the king's divine inviolability. The 'absolute prince', regardless of hisher behaviour, was not to be tried by subjects. This very conception was wriaen down by James ten years later. It demonstrated that James held a theory of kingship that was in direct opposition to his acnial experience in Scotland. He was, after dl, a king because his subjects had risen in arms and deposed his mother. His governent iw Spottirnoode. Histon. II. pp. 338-9. '" Ibid.. p.350. relied on his nobles, not the converse, and he himself had been severely restricted by his subjects &er Ruthven. Yet, the king still betieved that he ruled as an 'absolute prince'. Despite James appeai to Elizabeth, his mother was executed in February 1586/87. The symboiic importance of the act, outweighed its amal implementation. The execution of a prince, judicially, meant that the position of the crown could be placed under the power of the Parliament and the law; it meant no less than a constitutional right and rnechanism to eliminate a prince. UnWte the action of an assassin, operating under the guidance of God or the Devi1 - depending on religious convictions, the execution of Mary was an act of State, promulgated by subjects. The meaning of the act was not lost on one observer who affixed a Latin inscription to Mary's sepulchre; it read: "A strange and uncouth kind of grave this is, wherein the living are included with the dead; for with the ashes of this blessed Mary, thou shah know that the majesty of ail kings and princes lies here depressed and ~iolated."'~~Mary's death did, however, solidify James position on his own throne and the approach of his twenty-first birthday herdded the beginning of his adu1t rule. Chanter 4: The Linth of an Absolute Moncvch At the age of twenty one, James prepared to embark on a period of personai de as an independent and absolute monarch. His intention was to bring peace, order, and justice to Scotland. The rule of law was the surea way to draw ail mbjects into a closer relationship with the Crown while simultaneously destroying the bonds and bands that supported private degiances. In these conditions, following the mie of law, he would finally be able to exert his power. To this end, he gathered the nobles to Edinburgh for a feast to settle their feuds and to extract promises of good behaviour from them. To puncnüite this settlement the King had the nobles walk hand in hand through the streets of Edinburgh to the Market ~ross.''~The Parliament of 1587 began within days of this event. Arnong the acts passed in this parliament were the declaration of the Kuig's perfect age, an aa banning arguments over pnority of place and voting in parliament. and an important act for The A~?I&MIII of the Temporalitie of benefices to the Crown. The last provided not only a source of revenue for a cash-strapped king, but a source of influence over those who wanted to benefit from these lands. The Kirk was upset by the loss of its rents and patrimony: "But privately to such of the ministry as sought the subversion of episcopal governent it was whispered, that this was the only way to undo the prelacy."'G1Parliament also passed an act giving legal force to the King's attempt to ensure &iendship and concord among the nobles, it was to "mak and procure vniuersal concord amangis his hienes lieges," with sharp justice to be administered to those who broke the peace.'" The King's desire to establish order was manifest in acts calling for the extension of the criminal justice over the realme, and for the quieting of the Highlands. Islands, and Borders; this was given bureaucratic teeth by an accompanying List of Clan chiefs. Another act allowed the smail barons or lairds to send cornmissioners to the parliament. Forty-shilling fieeholders were to choose these cornmissioners who were to increase the King's knowledge of his nibjects concems. 166 The condition upon which the lesser barons were allowed to send representatives was revealed in the records of the Privy Council. These records revealed that the lessor barons arranged to pay a 40,000 pound fee for the privilege of sending commissioners rather than appearing in parliament themselves. 16' For several years following this parliament, the Privy Council was occupied with attempts to collect this money. The greatest concern for both the King and the Kirk in 1588 was the threat of the Spanish Armada. It was, again, an international situation which helped define the domestic context of Scotland. Ln May, the King declared to the Estates gathered in Edinburgh: "But for myself. 1 have ever thought mine own safety and the sdety of religion to be so conjoined, as they cannot well be ~e~arated."'~*The King had essentially admitted that the interests of the Kirk were also the interests of the King; it was not surprising that the Kirk reciprocated this view in light of the international danger. This reciprocity, however, suggested that when there were papists in the realm, and the civil justice failed to deal with them, the Kirk was within its nghts to comment on the state of '63 Spottiswoode. Histonr.11. p. 374. ibid.. p. 376. IG5 A.P.S.. 111. p. 458. A.P.S.. 111. p. 509. '" R.P.C.. 1V.p. 245. the realm and the crown, in its own interest. It was a realization that Real Politik had been profoundly altered by the Reformation, both international and domestic politics had to account for varying religious sensibilities and atfiliations. The fear of a Spanish invasion called for preparations in Scotland. On May 7, 1588, the Pnvy Council issued orders requiring the lieges to be prepared in the event of an invasion. '" Both the King and Kirk were concemed about the presence of Jesuits in the co~ntr~.''~Indeed, the Reformation had so transformed politicai discourse that the Scottish rninisters felt they could juaify murder as an expression of God's will; James Melville echoed this sentiment when he comrnented on the assassination of the Catholic Duke of Guise: "The Lord working be maist wicked instmments, rnaist wyslie and justlie! 33 .171 Despite the possibility of a Spanish invasion, James VI could well have believed that the kingdom would finally be brought to order. Through this order the King's power would be preeminent, and the feuds of the nobles would no longer determine the political agenda. In February 1589, the ordered kingdom James envisaged was once more replaced with a discordant and disordered reality. In this month, a correspondence between the Catholic Earls in Scotland (Huntly, Errol, and Crawford) and Spain was discovered. The impact of this discovery was felt by the Kirk and the Queen of England. The King's power and prestige seemed to pale in the seditious iight of these native traitors. The constitutional position of the King in handling this potential treason rernained one of theoreticaily absolute sovereignty and practically limited power. The King3 cautious and vacillating approach to the Catholic Earls infuriated Queen Elizabeth who la Spottiswoode. Histon.. II. p. 385. IW R.P.C..IV. p. 277. 1 -0 Mel~ille.Autobiom~hv. pp. 265-7. wrote: "Your behaviour is so exasperating that if I did not love you better than you deserve 1 should not mind to see you ruined ... Awake out of your long slumber and prove yourself sovereign master of your kingdom."In The practical weakness of the Scottish king, financially, rnilitarily, and politicaily, was once more demonstrated. However, the Catholic Earls provided James with a means to balance the threats to his power from both the Kirk and Elizabeth. The threat of a Catholic invasion would convince the Kirk that a strong and righteous king was essential, and would remind Elizabeth that lames' good dl had a politicai price. When the Catholic Earls took up arms in defiance of the King, he went to meet them in battle. Despite his larger army, the Earl of Huntly declined to engage the King's forces "because of the danger that might corne to the King's person.""' Clearly, the rebels had a certain amount of respect for the King's estate, authority, and person. Fighting agaùist the King could not easily be explained away, as the past governmental reconfigurations were. The rebeliious Catholic lords gave up their rebellion as their support melted away to the King. They were warded in various castles for their offence. This imprisonrnent was brief; the King wished the kingdom to be peaceful when his Queen arrived fiom Denmark and, in the interest of amity and concord forgave the rebel Lords. ln The King's power conthued to surge and then ebb according to the dictates of his vociferous subjects. The year 159 1 witnessed a series of attacks by the King's bastard cousin, the Earl of Bothwell, as well as the ongoing feuds in the Highlands and Borders. 1-1 ibid.. p. 264. '-' Annie 1. Carneron. (ed.).The Warrender Panm. (Edinburgh: Scottish Hiaory Society. 1932). LI. p. 103: "EIizakth to James W. 16 Marck 1588/9-. 1-3 Sponinvoode. Histon-. II. p. 396. 1-4 Ibid.. p. 399. The quest for peace and centraiized control remained paramount to James; with regard to the feuding he vowed to end such violent behaviour: "1 will employ all the power I have that ~a~."''~Despite the King's promises to restore order he was niIl the object of the Kirk's animadversion. The presence of the Catholic Earls and the fiequent raids by Bothwell led to a belief that: "Manie enormities were committed; as if there had beene no King in Israell; so contemptible was the King's authoritie, and that through his owne default, wanting due care and courage to minister j~stice.""~The absolute king appeared, even to his subjects, as nearly powerless in the face of his Praetorian nobility. The pattern of rebellious subjects claiming theîr actions were rneant to Liberate the King was weii established. The Earl of Bothwell attempted to utilize this vocabulary when he justified his rebelliousness as an attempt to free the King fiom the influence of the Chancellor John Maitland. It was clear to some that this was "the course of dI rebels, which is to tum their pretences against some about the ~inj.""~mile the King's power remained under assault. the Kirk slowly increased its own influence and boldness. The Melvillian ministers were distraught over the King's leniency to the Catholic Earls and their sermons continued to raise questions about the powers and nature of kingship. In an attempt to restore the Kirk' s medieval patrirnony and rents, they suggested that the Kirk deny aU laws that were contrary to ancient practice: "This, in the opinion of wise men, was eçteemed to be a good way for pleading restitution, according to the privilege of ancient laws." Clearly, groups within the Kirk continued to be the primary genitors of ancient constitutional discourse. They won a major victory when ibid.. p. 4 10. '" Caldenvd Historv of the Kirk. V. p. 1 17. 1-- Spottiwoode. Histon-. II. p. 4 13. Archbishop Mamson recanted his Erastian views: "Nkt, I codes 1 was in an eroneous opinion, that 1 beleivit the govemment of the Kirk to be Iyk the Kingdomes of the ea~~he.""~It was also a sharp blow to the King's daims of absolute sovereignty over al1 subjects and institutions. Once more responding to the content of sermons James called the Edinburgh ministers to appear before him. The exchange between the ministers and the King revealed a mutual intransigence: '1 think 1 have,' said the King, 'soverane judgement in al1 things within this realm.' 'There is a judgement above yours,' said Mr. Robert Pont, 'and that is God's, putt in the hand of the ministrie; .. .[the King declared that] he would use the power of his office and authoritie over them, becaus they did manie things beside their duetie. Mr. John Davidsone answered, their office consisted for the moa part in words, but his in deids; lett see upon what malefactor in Scotland his sword did stnke.180 The Melvillians were intelligent and cornmit-ted men who spoke to the King with a remarkable degree of fieedom and fiankness. Indeed they openly informed him that the ministry had judgement over the King and further insulted the royal poiicy toward the Catholic Earls and Bothwell. The Divine Right King was subject to God's ernissaries. These codicts with the Kirk need to be stressed as they reveal the ongoing tension that characterized relations between the King and the clergy. They also helped to contextualize the acts passed in the Parliament of 1592. This parliament passed the "Golden Acts" which abolished all acts contrary to the "true" religion, barred unqualified people from benefices, and passed a number of acts which gave statutory force to other religious issues. The Kirk was not inclined to challenge the authority of parliament when ' -3 ibid.. p. 4 16. '" Mei\ilie. Autobiomvhv. p. 29 1. "" Caldenvood Historv of the Kirk V. p. 13 1. it passed acts in its favour, but they denied this sarne authority when it claimed power to take their privileges away. The Kirk received ratification of the presbyterian discipline and a legal acknowledgement of its assemblies. The General Assembly was approved providing that the King or his comrnissioner were present to arrange the date of the next meeting; shouid the King or his comrnissioner not be in the town where the meeting was held, the General Assembly could appoint the next meeting itsel~'~~The parliament also annulled an act of 1584, which gave bishops the nght to benefices and the judgement of ali ecclesiastical matters therein. l" In keeping with the conflicts outlined above, the King was not happy with these proposed acts. However, he needed the suppon of the Kirk while he attempted to suppress Bothwell. The Kirk had frequently backed groups of nobles who had changed the govenunent and the King needed to isolate Bothwell and concentrate his efforts on one challenge to his power at a the. Nonetheless, "the first petition was longer debated, the King being unwiiling either to abrogate the acts of the year 1584, or gant the ratification desired of the present discipline."'83 It is not surpnsing that James was reticent to increase the position of the presbyterian ministers given their persistent and hstrating prerensions to authority and judgement over the him. Strengthening a group of what he considered seditious miniaers seemed antithetical to his goal of a centralized and over- arching sovereignty. The existence of these acts suggested that in practice legislative initiative did not lie within the sole puMew of the King. James grudgingly relented to the acts as a means to gain some peace with the Kirk's vocal ministers. Whether the idea for 1Si A.P.S.. III. p. 541. lS' lS' A.P.S.. III. p. 542. 1Y3 Spottiwoode. Histon.. II. p. 42 1. the acts emanated nom John Maitland's religious convictions, or eom his keen Machiavellian mind has remauied obscure; the Kirk certainly believed itself indebted to Mait land. '" This parliament, however, was not sumrnoned to deal solely with ecclesiastical afFairs, but also with secular problems. in November, 1592, the King had commissioned the Earl of Angus to suppress Highiand clans that were causing disturbances through personal feuds and riots.18' The same month saw Bothwell again denounced as rebel with a waming to any who would endeavour to help him. Parliament also passed an act calling for the sheriffs to do their duty and enforce the laws against those who were at the h~rn.'~' Clearly the King was having considerable dficulty in enforcing the law, the sheriffs were too often operating within a private clan or kinship system and the nobles sent to adrninister justice represented the apex of a system of bonds and oaths. The King could do little more than appeal to the sherins and nobles alike to enforce the law, hardly an expression of absolute power or kingship. The foresight of John Maitland's pacification of the Kirk was revealed in January 1593. The discovery of a number of letrers being sent to Spain which concerned a "tressounable conspiracie for inbringing of strangearis, Spanyeartis, in this realme this nixt spring or soner, to the overthraw of his Hienes and al1 professing the said trew religioun with hi~n."'~' It proved efficacious to have the Kirk solidly behind the King. The three main conspirators were the Earls of Huntly, Erroil, and Angus. Angus had been chosen, IS4 Melville Autobiomphv. p. 298. "' RP.C.. V. p. 19. 186 A.P.S.. III. p. 554. To be -at the horn" matthat one ws publicly declad an outlaw and a fùgitive from justice. ''- RP-C.. V. p. 33. as mentioned, one month earlier to enforce the Kine's law in the Highlands. The eagility of the King's judicial apparatus was clearly evinced in this tum of events. The King relied compietely on the nobles and their unpaid sheriffs to enforce the laws. order, and civility. Murder had become so prevalent that the King expressly forbade the carrying of hagbuts and pistols in an aaof coun~il.~~~Unruly Highland clans, such as the McGregorYs,were not dealt with directiy by the King, but rather by one of the main abetton of personai feud and rapacious self-interest, the Earl of Argyll as Justice-General. The issue ofleners of fire and sword were little more than acts of judicial murder, sirnilar to the murder of the Earl of Moray at Donibnstle in 1 59 1. lS9 Thus the condition of Royal authority in 1593, though many laws had been passed, remained one of conditional power and Mted govemance. Six years of adult mie had done very Little to increase the King's pragmatic power. The Earl of Bothwell, as though to punctwite the King's impotence, carried a raid into Holyroodhouse itseif. Aithough the King comported hunself bravely he was little more than a prisoner of Bothwell; given these circumstances it is not surpnsing that the King issued a condonation and remission of the acts of forfeiture passed in the Parliament of 1593. The King's power was also challenged by the miniaers of the Synod of Fife who, enraged by the King's weak remonmance of the Catholic Earls, exconununicated Huntly, Erroll, and hgus. The King wanted these proceedings stayed and asked the Edinburgh minister Robert Bruce to stop it. When Bruce replied that he could not do so outside of a General Assembly, the King replied: "Weil.. . 1 could have no rest till ye got that which ye cal1 the discipline of the Church estabiished; now seeing 1 find it abused and ------19% R.P.C.. v. p. 90. that none amongst you hath power to nay such disorderiy proceedings, I wili think of a mean to help it."'w The wound between the King and the Kirk despite the onguent of 1 592, had never healed and was once agah festering. The King was thus attempting to exercise his absolute kingship and sovereignty over a Kirk that would not obey, an Earl who violated and attacked the King's own residence, and a tio ofcatholic Earis who had risen in arms to defend their conneaion with Spain. Added to this he had the example of an absolutist ruhg the kingdorn to the south of Scotland. Elizabeth wrote to James at this time, providing a revelatory giimpse of the legal and constitutional nmcture of England: "Nevertheless, I marvel that you cmot find a law to deal with obvious traitors, who deny their guilt to Save their lives. A resolute King can aiways find circumstances to excuse his policy, and mininsters to cany it out.. .For your owne sake play the king and let your subjeas see you respect your selfe."'" Clearly, if the Queen felt that any policy of the dercould be excused, the ancient constitution of England was much more malleable than that of Scotland.19* The King's troubles intensified in 1595. Once more insulted and eonted by a sermon, the King called the Minister David Black to answer for the content of his sermon. Maintairing the Meivillian stance of denying the King's suitability to judge doctrine, Black denied the King's jurisdiaion over ecciesiastical causes. James flew into a rage and berated Black, but was intempted by the appearance of Andrew Melville who promptly infonned the King that there were "ma Kings in Scotland, twa Kingdoms, and twa 133 Spottirnoode. History. ii. p. 4 19. 190 Ibid,. p. 438 19' Cameron (ed.). Warrender Papers. 11. p. 222: -'Eli7abeth to James VI. January 15931.1." :z Indeed such a statement must have proved panicularly disturbing to James in the light of Elizabeth's esecuiion of liis moiiier. and lier subsequent excuses for this act. Jurisdictions," of Christ's kingdom James was but a subject and bound to obey the rninisters. lg3 James, as he often did when confronted by Melville, backed down and postponed the trial of Black. The King was eager to have the banished Catholic lords reconciled and cded home, ostensibly in order to keep a better eye on their behaviour, but probably to provide a balance of power in the kingdom. in Augusî, the King cded a Convention of Estates at Falkland to discuss caliing home the Catholic Earls. Having invited miniaers amenable to the royal wiii, James was upset when Andrew Melville arrived and the King reprimanded him for compearing uncalled. Melville responded: "Sir, 1 have a calling to corn heir be Chryst Jesus the King, and his kirk, wha hes speciall entres in this toum."lg4 The King had made his peace with the Catholic lords and wanted the Kirk to acquiesce in their retum. The representatives of the Kirk replied negatively: "being by the most sovereign court of the kingdom sentenced to have lost their estates, they could not be lawfully pardoned nor restored. And if the king and his council would take on to them to do it, they had God and the country to answer unt~."~~~The King was displeased with this response, once again the interests of the country were linked by the Kirk members to the possibility of civil unrest. When the Commissioners of the General Assembly met at Couper in September they sent the Melvilles, Patrick Galloway, and James Nicolson to the King. James Melville inforrned the King that the cornmissioners had gathered at Couper, upon hearing this the King flew into a rage clairning the General Assembly had been called without warrant. Andrew Melville came unhinged at the King's arrogance "and outtered the Commission as lg3 Melville. Autobiomaphv. p. 325. 194 Ibid.. p. 368. '" SpoRiwOOde. Histo- III. p. 1 1. fiom the mightie God, callino the King bot 'God's sillie vassail; ' and, taking him by the sleive," said that there were two kingdoms as he had "divers times befor."'% He declared to the King that the ministers "hes s&cient powar of hun [God], and authoritie sa to do, bathe togidder and severalie; the quhik na Christian King nor Prince sodd controll and discharge, but fortifie and assi~t."'~'For a King who considered hirnself absolute sovereign of his kingdom this challenge to his authonty was too much to bar. The Commissioners of the Kirk sent copies of Black's declinator to the Presbyteries in order to have them subscribed as an expression of solidarity and res01ve.'~~ The King declared that they behaved "as though they were not subjects, and that the king had no power nor authority over them, htending as appeared, by convocations and the like turnultuous foms, to break the peace and make an insurrection in the country."'n The Melvillian faction in the Kirk were quickly bringing the issue of institutional power and self-determination to a head. Lacking a cornpartmentaiization between the religious and the secular, these crossed jurisdictions generated tremendous tension. The King's desire to have the exiled lords retumed and the Kirk's contumacious stand rnay have contributed to the King's firrn aance in the case of David Black. The charges against Black included "that he falslie affermit that the papist Erllis wer retumit in the realme be his Majesteis Knaulege and consent.. .secundlie, that dl Kingis wer the devillis childrene," and many other calumnies against the King and ~ouncil.~~~Black was found guilty in the '% Melville. Autobiogra~hv.p. 370. "- Ibid. '* The declinator was a statement. oral or written. that denied the King's jurisdiction in a specific case or instance. 199 Spottinvoode. Histow. III. p. 17. 'IR RP-C.. V. p. 333. Privy Council meeting of December 2, 1596, and sentenced to ward in the nonh until the King pieased to pass sentence. The generai state of tension and animosity finally empted when rurnours of a papist plot to seize the King resulted in the ciergy of Edinburgh calling the nobles together for an emergency meeting on December 17, 1596. The King, who had been holding a Convention of Estates since Decernber 13, was intempted by a group of nobles and ministers demanding redress and the removal of aIl papias fonhwith. The gathering was expressly forbidden by act of pariiament and appeared to be treason. The Kirk, in its enthusiasm, had openly disobeyed the King and broken a secular law, a law clearly outside their junsdiction. As many individuals brandished weapons, their actions appeared more like a riot than a lawful assembly. The King held an impromptu Convention of Estates at Linlithgow on December 2 1, to deal with the Edinburgh Riot. The Convention reiterated and confirmed an act of 1 584 which expressed the King's Royal power and authority over al1 subjects, and they passed an act which further stipulated that the ministers "be thair handwrittis and subscriptioun first approve codes and acknaulege his hienes Royail pouer abone thame in al1 causs of seditioun and tressoun and vtheris ciuile and criminale materid and in al1 speicheis vtterit be tharne in puipettis scuillis or utherwayes quhilk may Importe the saidis ~rynes."*~~If the King could get the ministers to subscribe this act, his jurisdiction over speeches in pulpit, which was the key to the MelviUians conception of the hviolability of the Kirk, would finally be recognized. The King had the Kirk at his mercy, they had 'O1 A.P.S.. IV. p. 103. overstepped their bounds and the law, as well as the opinion of most observers, was on the King's side. The Edinburgh riot leil the town and the ministers in a precarious position. The parliament at Linlithgow declared that the King's life had been endangered, "be the violence of ane RascaU multitude in armes/ at the instigatioun of certane seditious rninisteris and baronis conuenit and swome to Joyne hand in hand in thair tressounable and violent ~nter~rise."~~~Both the magistrates and the ministers of Edinburgh were held responsible for the riot and the King imrnediately removed the seat of govemment, including the session and justice courts? in order to punish Edinburgh. The magistrates of the capital, feanng that the King would min the town, came to James as supplicants and declared that: "they should promise never to readrnit any of those miniaers, unless his majesty did command otherwise. As also, that the Wte should not fail out thereafier, the town should be obliged never to receive any rninister in time coming but by his majesty's advice and approbation."2o3These events marked the decline of the power of the Melvillian rninisters; no longer could they assert that speeches in pulpit did not lead to sedition and no longer could the Kirk choose the rninisters for the important town of Edinburgh. John Spottiswoode considered the Edinburgh riot to be the political death of radical presbyterianism: "for by this tumult was the King's authority in matters ecclesiastical so far advanced, as he received Little or no opposition thereafler."20J It must be remembered, however, that James did not achieve this victory as a result of careful planning or a forcehl exertion of royal power, it came as the result of a mistake, an -- -- "' A.P.S.. IV. p. 103. "" Sponiwoode. Histon.. III. p. 37 accident on the part of the Ediiburgh rninisters which allowed the King to play factions within the Kirk against each other. The King was in a position to capitalize morally, legally, and politically €tom the overly ambitious actions of the Melvillians. The King was in a position to steadily increase his influence and control over the Kirk. When James submitted fïfky-five propositions to the General Assernbly dealing with the power and jurisdiction of the Kirk in February, 1597, the members of the failing Melvillian party replied: "Let the King and Counsall considder whow intolerable they wald think it, to cast in dout the fundamentdl lawes of the kingdome, and acts of ~arliarnent."~~~Although the King did not gain absolute control of the Kirk, the Melviflians believed that the King had extended his power into Christ's jurisdiction and compted it. James Melville outlined his view in the following tenns: In end, the end of the Aseemblies of auld was, whow Chryst's kingdome rnight stand in haliness and fiedome: Now, it is whow Kirk and Relligioun may be framed to the polytic esteat of a fie Monarchie, and to advance and prornot the grandour of man, and supream absolut authontie in dl causses, and over al1 persones, alsweill Ecclesiastical as civil1.206 Giving the Melvillian party's belief that the King had become absolute, it is not surpnsing that the two kingdoms Andrew Melville had staunchiy defended, should become one kingdom. In the Parliament of 1597 an act was passed providing that: "at ony time his maiestie sall pleis to provyid to the office place title and dignitie of ane bischoip abbott or vther prelat sa11 at al1 tyme heirefter haif voitt in parliamet."207James Melville believed that it was essential for the Kirk to have a voice in the parliament and councils of the Ibid.. p. 38. Spottiswoode ms esaggerating of course. but man? contemporaries belimed that the king liad gained immeasurably from Ihe not. =O5 Mehiille. Autobiomphv. p. 391. 'M Ibid.. p. 414. kingdom. For Melville, the parliament was a place where the Kirk could defend its privileges: To gett of the godliest, wysest, and best of the ministirie, upon the Counsall of the realme, Conventiomes of Esteats and hichest Court of Parliament, ther they sould reasone and von in their awin causses, and bring hame the Kirk leiving, and nocht stand at the dume geiffing in peapers of petitiones.20s The connation of the two jurisdictions, ecclesiastical and secular, though not complete, was thus facilit ated. This chapter, and the one preceding it, have attempted to systematically develop the picture of a kingship that relied on CO-operation,manipulation, and, frequently, acquiescence to achieve its goals and maintain a minimum level of authority. Without doubt, James VI had attempted to exert the powers he thought due to a mature and independent monarch, but he had been constrained both practically and theoretically by his nobles and the Melvillian ministers. With a modicum of peace finally established in the realm, James sat down to write the books that would finally counter the clairns of the Melvillians and the constinitionalist~.~~~James knew, however, that his power was not absolute in practice and the following chapter will demonstrate that James did not write a tract on the absolute power of kings, but rather a theory of constitutionally limited kingship. -- - 'O- A.P.S.. IV. p. 130. Mclvillc. Autobioma~hv.p. 435. 'w Donaldson Scotland. p. 195. Donaldson beiieved that the hvo religious and political challenges to royal power - the radical presb!~erian and the Calholic - were reduced in 1596-7. leaving James free to exert lus auhori-. It is important to remember that at no Lime was James in compleie control of Scoiland. nor wa; his penokl powr greaier than thac of liis moa powerful nobles. As Bruce Gallowy in nie Union of Enaland and Scotland (Edinburgli: John Donald Publishcrs Ltd.. 1986). argued: "Et.enin 1603. James's authority in his old kingdom rernained more fragile han in lus new."(p.4) Chapter 5: Theories of Power and Constitutional Limbtatîons James VI, in his Basiiikon Doron (1 599). wamed his son Henry to be cautious in his wntings, should the young Prince be inclined to write, "because your writes will remaine as true pictures of your minde, to al1 po~terities."~'~Ultimately, however, the writings of the father were to prove contentious to contemporaries, and posterity, owing primarily to divergent interpretations of the 'true pictures' of his mind. In any act of historical interpretation it is important to consider the intention and meaning of the author, the context within which the work was produced, and the contemporary interpretation of the work. Each of these conditions mua be met in order to explain the impact and course of an idea at a particular point in the timdspace continuum. The previous chapters have attempted to outline the context within which James VI developed his theory of kingship and also to have demonstrated how his expenence as a king was conditioned by his subjects appeal to an ancient constitution- This chapter is concemed with the ideologicai roots of James VI's political views. in order to evaluate the nature of legai and constitutional discourse in the period it is necessary to examine the theones that were prevalent at the time. The constitutional discourse of George Buchanan and James VI will be compared and contrasted in order to provide an outline of the relevant theoretical pp p- 'Io James Vi and 1. King James VI and 1: Political Writings. I.P. SomeMlle (ed.).(Cambridge: Cambridge University Press. 1994). p.55. The inspiration for Lhis chapter emerged from tluee essays in ThTlLofda Levy Peck (ed.).(Cambridge: Cambridge Universitu Press. 199 1). The articles are ail concemed with the political Iliougiit of James VI and 1. The three contributors. Jenny Wormold J.P. SomerviUe. and Paul Christianson. arc Ieading esperts in this field. Curiously. however. each author amved al a diEerenl conclusion on James VI and 1. The Iack of an? clear c-upression of James' constitutional position necessitateci an attempt at synthesis wluch would reconcile some of the contradictions while rnaintaining the valid arguments of eadi author. In order to initiate siicli a qnthesis it has proved necesse to evduate the political thought of James prior to 1603; this cliâpter attempts such an evaiuation. constructs they utilized. This analysis will reveal that James VI and 1 was not an advocate of absolutist rule and further that constitutional discourse followed identifiable patterns that only becarne discordant when these authors appealed to the ancient constitution. An attempt will bc made to use sixteenth and seventeenth-century contemporary definitions of politicai institutions and concepts in order to avoid anachronistic interpretations of political thought. Though James became King of England in 1603, he rernained a Scottish king in practice, thought, expenence, and demeanor. James did not know a state other than kingship, as he had been a king virtually his entire life. Aithough subject at times to the vicissitudes of noble families, he had ruled in Scotland for thirty-six years. Therefore, when writing of James, one must bear in mind that his definitions and theories were based on, and drawn frorn, his education and expenence in Scotland. In order to analyze his contribution to constitutionai and legal discourse it is essential to gain a familiarity with sixteenth and seventeenth-century Scottish legai theory. The constitution of a kingdom in sixteenth and early seventeenth-century Europe, referred to a generai conception of the origins of the body politic, the locus of sovereignty. and the denvation of fundamental or constitutive law~.*'~Sovereignty was conceived as the undisputed right to exercise political power in a given kingdom. The constitution was concemed with political power and the concomitant obligations and limitations that were part of both the international relations and the domestic sovereignty of the kingdom. The law, as a prescriptive and ascriptive element, was a key explanatory variable which ';'H.A. Lloyci Tonstitutionalism'. in J.H. Burns (ed.).The Cambridge Nston-of Political Thought 1450- 1700. (Cambridge:Cambridge University Press. 199 1). pp. 254-5. outlined, in theory and practice, the source of power in a kingdorn.212When the law played such a vital role in articulating the power structure of a realm, conceptions of the source of law became a part of constitutional discourse. Scottish legal theory was thus indistinguishable from constitutional theory as the two were linked by the cornmon denominator of political power, as expressed in sovereign jurisdiction. A great deal of debate was generated following James VI's ascension to the English crown in 1603, as issues of sovereignty (national and international} arose from the possibility of a British union. The legal systems of each countq, as expressions of their individual constitutions, were therefore of primary importance. Pnor to the dynastic union, James had outlined his views on kingship and the Scottish constitution in two tracts he produced in the last decade of the sixteenth-century2'' In ïhe 7iew Lmof Fkee Momrchies (1 598) and later in his Baxdikott Doron (1599), James attempted to provide a remedy to existing theones that placed sovereignty in the hands of the multitude; these theories were promulgated by those "Who thinke themselues able to teach and instruct the ignorants."214According to James, it was a lack of true understanding that caused men to rnisinterpret the Scottish constitution. In his first treatise he attempted to "set downe in this short Treatise, the trew grounds of the mutudl duetie, and deageance betwixt a free and absolute Mortarche, and his people;" because, second oniy to knowledge of God, there was nothing more important in a kingdom than "the right knowledge of their "'The law is prescriptive to the extent that it allows or prohibits certain actions and validates ancient custom. it is ascriptive in hesense that it locates power and provides a source for il. "'See Bruce Galloway. The Union of Scotland 1603- 1608. pp. 1-2. for a discussion of the problems inherent in the term -Union of the Ctowns'. ''.' James VI and 1. Political Writinas. p. 63. alleageance, according to the forme of gouernement established among ther~t."~''This meam that the King viewed constitutional issues as a very important consideration for the maintenance of a properly ordered kingdom. Historians mua also consider these issues as fundamental components of sixteenth and seventeenth-century governance and political discourse. The Scottish context of James VI's politicai writings should be viewed as the most important Muence on his constitutional position in Scotland and England. His view of iaw and the constitution was articulated before he arrived in England and did not subsequently change either in content or emphasis.2'6 This ideological consistency derived fiorn his having already encountered alternative constitutional models during his reign in Scotland. In order to understand the formative influences on his views it is necessary to examine the political ideas of his tutor, the Scottish humanist and Latin poet, George Buchanan, who wrote several works, including a history of Scotland, the Renrm Scoticorum Hisroriu, in an attempt to justify the removal of Queen Mary. In the process, Buchanan outlined a constitutional theory that chdenged the sovereignty of monarchs. Ironicaliy, he dedicated his poliùcal tract De Jure Regni Apd Scotos (1 579) to the young "'ibid.. pp. 634 It is important to note that lames felt he could write of muhial duty and allegiance without compromising his position as a free and absolute mowch. What might seem a contradiction to the modern reader is. in fact. simpl the assertion that limits were not placed on the king by the people but by Gad Naturd Law. and by the King himseLf. 'Id Whether this application of Scottish constitutional concepts to the English scenario was successful or not Lies within the pdewof those historians who continue to define and debate Stuart parliamentary history as it applies to England. Certainiy one editor of James VI and 1's writings. Charles H. McIlwain. saw a continuity from the Trew Lawe onward and considered James' constitutional tiew as a major cause of the ch-il wars of sevcntcenthcentury Britain: "From thc opinions thcre [in The Trew Lmej stated no new situations or conditions could ever shke him and this must be considered one of the fundamental causes of the constitutional molution of the nest three quarters of a century." px~niiin the introduction to Charles Mcliwain (ed.). The Political Works of lames 1. (New York: Russell & Russell inc.. 1965). Modern studies have reconceptualized the once prevalent view of constitutional issues as the pri- motors of the English chil war: hovevcr. the work of Paul Christianson has revive. the ideologicai bais king: "This book therefore 1 have sent unto you to be not only your monitor, but also an importunate and bold ~xactor."~~~It was meant to serve as a guide to good kingship. In De Jure Regni, Buchanan situated the locus of political power in settled communities and discussed the ramifications this had for monarchy. He suggested that men were inclined to gather together and form communities based on a natural impulse that God had infused in men and some domestic beasts.''' Natural Law derived fiom God and was made manifest in a "light7' or capacity for reason that God imparted only to humans, as superior creatures. This capacity allowed men to gather together not simply for utilitarian reasons, but rather because it was pleasing to God and flowed fiom His ~i11."~These might be referred to as "Divine Right communities7?because their composition was the result of God's will rather than the base impulses of men. In this sense, communities predated kings and had authority as corporations before kings existed. The comrnunity itself determined the form of government it thought most efficacious. Monarchy, Buchanan assexted was one nich choice: the people chose a king from their own ranks based on his having desirous characteristics such as equity and prudence, and invested in him the authority to rule over them and administer justice? The human failings of the king however, could lead hm to behave in a manner inimical to the interests of the society. The community, therefore, created Iaws to constrain the will of the king of the discussion. suggeshg that there were competing 'voices'. Royal and parliamentary. during Ihe reign of James 1. and that these voices were constitutional. "- George Buchanan. De Jure Remi Apud Scotos or. A Dialogue Conçernin~the due Prhdcdgc of Government In the Kingdom of Scotiand. Translateci by Philalethes. (London: Richard Bddwin. 1689). Prefaçe. '" ibid.. p. 7. "'1bid.. pp. 7-8- "" Ibid.. p. 10. and ensure a stable source of justice or equity."' From these staternents it is clear that Buchanan placed monarchs under a human-made (positive) law which originated in the ultimate authority of the people. Kings were to be constrained by laws that were made '%y a Common Council with the King,"; in Scotland that process would be "that near to Our Custom, a select number out of al1 Estates may convene with the King in ~ouncil."" When this council had decided on the laws to be made, the laws were referred back to the Estates in parliament to pass judgement on them. The law would be completely beyond the king's power to interpret; it would be in the hands of lawyers and judges to work out the equitable enforcernent of the law." This provides a reasonably clear picture of Buchanan's constitutional view. The king was a produa of the cornmunity, chosen because of certain attributes to be a leader and moral exemplar. Cornmunities predated kings and were the ultimate authority in determinhg the form of the govemment and the distribution of power and responsibility within it. Laws were made to delunit the capricious natures of kings who, as humans, were subject to vice. Kings, then, preceded laws, but laws came fiom the people (as did kings) gathered into estates of parliament. The king's power was further lirnited by his inability to interpret laws, as such a role would have conferred power on hirn to "tum al1 -' Ibid.. pp. 12 - 1 3. J.H. Burns. in Iiis article ThePolitical Ideas of George Buchanan'' Scoaish Histurical Review, XXX. Apd (195 1). p. 63. argued uiat Buchanan had dweloped a systern tiiat marked a king as a tyran1 if he shodd deviate hmthe Iaw of the people or govem arbitrarily. In a settled kingdon the king needed to follow the positive law. W-I -c Buchanan. De Jure Red, p. 20. Roger Mason's article "Rex Sfoicus: George Buchanan, James VI and the Sçottish Polity" in J. Dwycr. et al.(&.), New Pers~ectiveson the Politics and Culture of Earh Modem Scotiand. (Edinburgh: John Donald Pubiishers Ltd.. 1982). p. 20. has suggested lhat this is a referenœ to the Cornmittee of aie Articles and my reading of Buchanan is in accord witli lhis view. The "select numbei' \$as to be drawn from the "Estates" which is a delimited group (uniike the universu populus). not from the comunity or kingdom as a whole. 23Buchanan De Jure Regni. pp. 22-3. things upside-down," placing the king's powers above those of the people."' The law itself had a tripartite ongin for Buchanan. The primary source of a community's power was natural law, which was ultimately denved fkom God as the author of Nature; as the divine law and natural law were coessential it was not necessary to sharply delineate each, but divine law had certain limitations when applied to ~entiles." The third source of law was positive law and was made by the people sitting as Estates in an assembly in consultation with the king. Though natural law served as the genitor of communities and their authority, it was positive law that placed checks on the power of the king. Given this position, the positive law became the primary expression of a kingdom's constitution. Though not a legal scholar Buchanan, considered the positive law to be a fundamental component of a state's constitution. However, he also continued to use natural law imagery in order to describe the king's role. The king was to rule patemdly: "Thou King, mua as a Father Rule thy Subjects, and have no less care of al1 than of thy self..Then will the people become the more observant of Equity; nor will refuse to bear any Burthen, when they see their King himself obedient to what he c~rnrnands."~~The King was to be a father who foUowed established rules of his own household. Buchanan's king was inextricably tied to the community as their arbiter of equity under the law. Any derwho came to power in a rnanner inconsistent with Buchanan's view was not legitimate: "For the Govenunent of Kings is according to Nature, but that of Tyrants is " Buchanan. De Jurc Remi. p. 22. This cunflation of nature and God n.as not thoroughly eqlained by Buchanan- homer. it is possiblc to suggesi htBuchanan was making use of the contemporaq view or these two sources of law as distinct but ul timately stemming from the sarne source. His analogies are drawn from natural law. i.e. in regard io his references to the state as a body and the king as a father. The natural law, for the cfassicaIly trained humanist. was based on dictates of reason. 2%uchanan. De lm Regni. p. 28. not. A King doth Rule his Subjects, and Reign over them by their own on sent."^' Ifthe consent were lacking, the derbecame a tyrant; there was no other way of becoming a king. The conquering tyrant abrogated the conditions of civil govemment and dissolved al1 bonds that existed between a chosen king and his subjects." Buchanan's tract, which was written as a dialogue between himseif and his interiocutor Thomas Maitland, addressed the condition of the Scottish monarchy in light of Buchanan's constitutional model. Lt was a weakness of the De Jure Regni that it asmmed Sconish king to have been chosen in a manner consistent with Buchanan's universalist conception of society. Operating with the assumption that the ancient constitution of Scotland confonned to an elective kingship (established by naturd law and constrained by positive law) Buchanan set out to counter Maitland's assertion that Scotland's constitution was dtered fiom its ancient roots by hereditary succession. Buchanan argued that heredity could have been established by force or by persuasion in the reign of Kenneth III, circa 997-1005 A.D.'~' If it was done by force, he asserted, it could be undone by force. Kit was done with the people's approvai, as a means to reduce intemecine strife, the ultimate check on the king's power remained with the people. The ancient constitution of the people could not be violated; the power to correct and choose leaders was evident in the clan system and enshrined in the coronanon oath: "When our Kings are publickly inaugurated, they solernnly promise to dl the people, that they will observe the Laws, Rites and old Statutes of their predecessors ...our Kings received from our Ancestors a power not immense, but within certain limits bounded and ~irnited."~~The argument fell back on the power of the positive law as the factor that placed bits on the sovereignty of the king. The entire issue of bgsbehg inviolable and absolute, due to the "Divine Right" of the king, was deftly avoided even when discussing the kings of ancient Judah : "Now if the Jewish Kings were not punished by their Subjects. they make not much for our purpose in hand. For they were not at fim created by the People, but were by God given them."2j' The importance of this statement mua not be understated. The ''Divine Right of Kings" was exclusively appiied to the Israelites, thereby Divine kingship (based on the Old Testament) was a culturally specific instit~tion.~~If the king was chosen (or instituted) by God, and the King was the law-maker, then the people would be obligated to obey his commands according to that constitution. Buchanan obviously needed to deconstruct this view and, therefore. had his original society choose the king, making the people greater than the king and greater than the laws, as they were the authon thereofU' In order to provide a higher authority Buchanan had God as the source of the urge for coilectivity. Despite the logic of his theory, Buchanan signdy failed to provide examples of positive law that constrained the kings of Scotland. It must be adrnitted though, that he was trying to validate a constitutional form of government and not the specific legal codes of any particular country. It would be mendacious to assen that positive law had no " Ibid. p. M. " ibid.. p. 55. " Not king a theologian Buchanan was loath to becorne embroiled in a theological argument: the farthest he was wviiling to go was an explication of Paul in Romans 13 :1. whicli reiterated the view of Calvin and Knox conceming lesser magistrates. Obviously. Buchanan \vas no1 denying that king were chosen by a systern that was pleasing to God who had given people the urge for collectivity. he was stating Lhat a-sacrosanct king kvas the product of God's creation al1 king Lhat were not dikctlY relateci to those of the Old Testament were the product of the people's wi11 and thus no1 candidates for Oie Divine Righi. 233 Buchanan. De Jure Regni. p. 59. influence simply because Buchanan failed to quote it. He was not. fier d,a lawyer. Scotland did contain a common law, which was continually made manifest in statute law, that characterized the discussion of fùndamental Iaws and ancient constitutions. Buchanan attempted to prove that a system, flowing fiom the people and expressed in parliament, created laws that controlled the hg. This syaern was based on parliament (which made positive law) and its laws were the restraining force on the king.u" When the people established their king he was made to swear an oath to obey the laws and the people, in tum, promised obedience to the king in keeping with those same laws. Buchanan believed that: "There is then a mutuai paction betwixt the King and his Subjects," this mutual pact held each component, King and people, to the rule of law and, if broken: "The Bond then being loosed, which did hold fast the King with the People. whatever priviledg or right did belong to him, by that agreement and covenant who looseth the same, 1 suppose is l~st."~~Once the covenant was broken the people were in a position to remove the king and replace hirn with another who would uphold the mutual pact. The actud removal could be accomplished through the actions of lesser magistrates, tyrannicide, an uprising, or any other means that would remove the offending der. The idea that the laws were not always sufficient to contain the lusts of a king who had become a tyrant was implicit in Buchanan's treatise. However, those laws, if abrogated, =-U Mason. "Rex Sroicus". pp. 9-33. Roger Mason's argument in this article is diametricatly opposed to these ideas, He believes that Buchanan's Lheoq reiied on divinehaturd law; 1 disagree Tor tuo reasons: 1) Parliament was not creating divine law. they were making positive law and these were the laws Buclianan referred to. laws from the people. 2) Mason quotes Morton (the Regent after Mary's deposition) as appealing to divine and natural Iaw. however. in this samç quote Morton defends the deposition with reference to "the laws and institutions of our country.- (p.27) What were these laws and institutions if not positive law enactrnents or customs? The problem arises from too sirong an emphasis on the foudations of Buchanan's legal and not enough emphasis on the man-rnade law chat was clearl? meant to govem subsequent activities. 3 5 Buchanan. De Jure Remi. p. 66. were sufficientto jum the lawful resistance and removai of a tyrant. It was, therefore, a constitutional position that inverted the traditional view of rebeilion. Instead of identifymg the rebels as those resisting legitimate royal authority, Buchanan had the king rebelling against the lawful authority of the people. Natural law was the origin of the people's sovereignty and positive law was the condition upon which the king and his subjects were covenanted with each other. As a constitutional theory, which adroitly sidestepped the Divine Right of Kings, the De Jure Re@ Apd Scotos was a powerful assault on the sovereignty of kings. In his treatise The Trov Law of Free Monarchies ( 1598) James attempted to outline the powers that a king possessed within his kingdom. This work is divided into three sections, the fkst of which deals with scriptural support for monarchy, the second with the fundamental laws of the kingdom, and the third with the law of nature. James was quick to establish the divine ongin of kings. In so doing, he also outlined the duties that were incumbent on a Godly monarch. The Christian monarch was bound by an oath or covenant made at his or her coronation. The monarch's primary duties under this covenant were to protect the established religion, "to maintaine al1 the lowable and good Lawes made by their predecessours," to protect the country fiom invasion and intemecine stnfe, to work with the knowledge that kings were ordained for the people, to know that for any abrogation of his duties he was "countable to that great God, who placed him as his Lieutenant ouer them" and to do al1 these thgs because "this oath in the Coronation is the clearest, ciuill, and fundamental Law, whereby the Kings office is properly defined."36 36 James W and 1. Political Writinrzs. p. 65. Given James' own endorsement of these duties as the definitive expression of a monarch's role, they demand closer inspection. Ln maintaining the lovable laws of his predecesson, James was dowing the positive law a constitutional role in the kingdom. If he were to stop following the "olde lowable laws of the co~ntre~,"~~James would break his covenant with the people and with God. Accordingly, absolutism received its fkst serious limitation. The King, according to the oath, was to remember that he was ordained for the people; this is also a constitutive element, James was ordained by God for the people. He was not elected, but rather Divinely appointed through succession. Furthennore, should he behave contrary to the demands of the coronation oath, he was not fiable to earthiy deposition - that power remained with God alone. The King's covenant, though it concemed his scriptural duty toward his subjects, was not made with the subjects alone, but also with God. Since the king was bound by his covenant to obey the fundamental laws it was necessaiy to assess how those laws were created. James asserted that: "the ground must first be set downe of the first maner of establishing the Lawes and forme of gouernement among vs;" this referred to the original constitution of ~cotland.*~In his atternpt to provide a proper context to his discussion of fundamental laws, James admitted that in sorne communities in the past men picked a king fiom among them, based on his having certain desirable traits, and imbued him with law-making power."g However, this did not take place in Scotland, James suggested, because "our Chronicles," related that Scotland ibid. 38 ibid.. p.72 Given this çtatement by James it is difficult to understand J.P. Somerville's assertion. in Peck's The Mental Worid of the Jacobean Court p.65. that James's political thought was entirel' facking any reference to an ancient constitution. James. quite clearly. was well ver& in ancient constitutional discourse long before his arriva1 in England. was conquered by the Irish king Fergus who "made himselfe Kuig and Lord ... first established the estate and forme of gouemement, and thereafler made laws by him~elfe."~" This represented an excellent attempt to dissemble. The elective principle of George Buchanan was verified in particular circumstances, however, it was simply not applicable as Scotland was constituted in a diferent manner, by conquest. For James, the kings of Scotland preceded the estates and parliament and thus kings made laws of their own initiative and a~thorit~.~'' George Buchanan had argued that: "The authonty of Scottish kings denved from the law: the kingdom was not accuaorned to be mled by the whims of one person, but according to the written law and with the consent of the nobility.""' There are three conclusions that arke from this statement of limited monarchy. First, Buchanan accepted monarchy as a viable and desirable constitutional form. Second. the law was above the king and third that the king's will was tempered and restricted by the nobility. James' view of hinory, which lacked the forty deposed mythical kings of Buchanan's version, directly attacked the idea that the law was the source of royal a~thorit~."~In James' typology the king of conquest preceded pariiaments, nobles, and law, and thus the king was author and genitor of laws which derived their authority from his person.2u James aiso believed that his subjects owed him fealty: "the whole subiects being but his vassals 533 Ibid.. pp. 72-3. '" ibid.. p. 73. "" Ibid. This view of the conquering king who pdedlaws is sharply at variance with the views of -Buchanan - who suggested that such a king tvas nothing more Lhan a Qrant. -'-George Buchanan. ^Remm Scoticorum Historia*' in W.A. Gatherer (ai.).The Tvrannous Reim of man^ Stewart. (Edinburgh: University Press. 1958). p. 99. '" For the classic article that traces the debunlang of Buchanan's forty mphical king by Humphrey Lhuyd see H.R Trevor-Roper -George Buchanan and the Ancient Scottish Constitution". The Enplish Historical Review. S upplement 3. ( 1 966) pp. 1-53. James VI and 1. Political Writines. p. 74. and From him holding al1 their lands as their ouer-l~rd."~"~There was, t herefore, agreement between these two divergent conceptions concemuig the 'monarchical constitution' - that monarchy was the best fom of govemrnent - but not on 'constitutional monarchy'. In fie Tme Lawe of Free Monmchies, James extended his view of the king- through-conquest typology into Engiand, which he considered a particular example of this system. England's laws were also viewed as corning from its kings.246 The discussion of fundamental laws and the constitution is characterized by the need to establish the obligations and limitations under which the monarchy functioned. In The Trew Law of Free Mo~~archiesJames unequivocaily voiced his conception of the king as absolutely sovereign (and through Divine Right inviolable), with the Parliament as a forum for suggesting and advising on laws: And according to these fundarnentall Lawes already aileged, we daily see that in the Parliament (which is nothing else but the head Coun of the King and his vassals) the laws are but craued by his subjects and onely made by him at their rogation, and with their ad~ice.~~' James was not arguing that he made laws arbitrarily, or even absolutely, but rather that the law-making authority derived from the king, who had absolute power to initiate and validate the law as over-lord. However, the fundamental laws which established parliament also constrained the king. Parliament could not validate a law unless the king put his scepter to it. Nor could parliament initiate legislation; whereas the king could daily conceive of statutes and laws that should be made, he did not need to convene a "' Ibid.. p. 73. 'u Ibid.. p. 74. "- Ibid. parliament to fornulate legislation, he needed parliament to discuss acts and vote."' James clearly stated that any law he initiated needed to be subjected to the consideration and advice of Parliament in order to ascertain its applicability and desireability. Thus, for James, the law denved its authority nom the king in consultation with his Parliament. Given the picture James provided, one could conceptualize the constitution of Scotland as a symbiotic relationship between the king and parliament. However, James and his parliament (even when working in concert) were not in a position to enforce and administer justice throughout the kingdom. James was aware of the Limits that private individuals placed on the power of king-in-parliament, as he noted in the Basiiikon Doron: "But the greatest hinderence to the execution of Our Lawes in this countne, are these heritable Shirefdomes and Regalities, which being in the hands of the great men, do wracke the whole countrie."" Clearly pradcal politics placed real lirnits on the king's absolute power. Nor could the role of parliament be divorced frorn these sarne 'great men' who aiso composed one of the estates and who, as Jemy Wormald has argued, were part of a parliament that has too often been portrayed as a servile body.Eo The traditional view of the Scottish Parliament as a weak body is lied to the assumption that the English Parliament, in contrast, was a strong body that necessitated an alteration in James's discursive methods. Revisionkt studies have begun to deconstruct this view of the English Parliament as a unified oppositional force yet sorne writers insist "that the whole idea of Parliamentary sovereignty which grew up in England was alien to ibid. '" ibid.. p.29 See le- Wormald "lames VI and 1: Two Kings or One?". p. 194. and Mason "RexSmicus ", pp. 24- 5 wbich correctiy Iocate the nobles (as Buchanan's checks on the king's power) in the Pri~yCouncil, the Parliament. and the Conventions. ~cotland."~'Contemporaries seem to have viewed Scotland's parliament in a different light . In considering the power of the law to limit a hg's actions, which would confer a constitutive power to the fundamental law, it is helpful to distinguish between the theory and praaice of absolute power. George Buchanan believed that the king was primzrs hzer pares and thus was bound to obey the law as "laws were deafto prayers and threats alike, and kept one unswerving course."z52 Thus the king who swerved from the course of the law was a tyrant and liable to removal by his magnates. The law, for Buchanan, had a prirnary role in controlling the king's actions. For James this view was utter nonsense. A free monarch, as the originator and authority behind the law, could not, theoreticaily. be limited by the ~aw.~~In practice, however, a good king would allow himself to be subject to the laws of his realm "for certainely a king that gouemes not by his lawe, can neither be countable to God for his administration, nor haue a happy and established raigne."25" The absolute power of the king allowed hirn to ignore the laws, but the consequences of such a course led him to volitionaily render himseifsubject to the laws. Thus his pragmatic rule was not that of an absolutist kingz5 James also framed his role in the terminology of '5' S.J. Davies. "The Courts and the Scotush Legal Systern 1600-1747: The Case of Stirlingshire". in V. A.C. Gatrell, et ai. (eds.). Crime and the Law: The Social Historv of Crime in Western Europe since 1500, (London: Europa Pubfications Ltd. 1980,) p. 12 1. "'George Buchanan The Art and Science of Govemment Amone the Scats, Tram by D.C. Macnciil. (W. Maclellm 1964). p. 31. Y3 lames Vi and 1, Politicai Writints p. 75. 54 ibid. -S5 James Balfour. Practicks. Balfour included a statute fiom King David which is illustrative of this process: "nor na uther Iudge or OfIiciar of law. sall put to executioun on? command direct to thame under the greit seill. prhle seill. secreit seiil. or signet. conlrare to law. equitie and justice." (p. 281) This is a clcar e.u;unpIe of the king with parliament, placing restrictions on lis own powcr. natural law when he referred to hùnselfas the father to his people and the head to their body; the loss of the father or head would upset the natural order?' James VI used the last few pages of his treatise neTrov Lmve of Free Monarchies to counter some of the exiaing arguments that limited the exercise of fiee monarchy. His argument in favour of a king's power contained explicit constitutional limitations. Privileges once given could not be reclaimed: For if a Prince cannot iustly bring back againe to himself the priuiledges once bestowed by hUn or his predecessors vpon any state or ranke of his subiects; how much lesse may the subiects reaue out of the princes hand that superioritie, which he and his Predecesson haue so long brooked ouer hem?*' Passages such as this one are infrequentiy quoted as they clearly rnitigate, hotrefute, any absolutist reading of James's constitutional thought. He also elaborated a theory of kingship that sharply dxerentiated between the power of 'kings of origin' and those who were constrained by precedents that composed the ancient constitution, or 'constitutional kings'.2sg James had admitted that his absolute power was justly limited by the constitutions of his predecessors; he attempted to situate that constitutional discourse within a larger fiamework that conferred a similar obligation on those who would clah power over kings. Withh the realm of fundamental laws, particularly positive law, a mutual relationship existed. There were obligations on both parties, as the coronation 36 James VI and 1. Political Writin~s,pp. 76-8. James was searching for the same congruence among the laws as was Buchanan. James beliwed that he was subject to all the laws: "And the agreement of the Law of nature in this our ground \?th the Lawes and constitutions of God. and man already aliedged." p. 76. --5- Ibid.. p. 80. '' Christimon. "RoyaI and Parliamentary VoiceS'. pp. 7 1-95. Christianson has correctiy identifiai James's conception and has kibelled it "constituûonal monarchy created by kings". 1 agrec with this definition. however. 1 do not believe. as Chnstianson does, that it was the produci of "the language of tiic common hw.- nor thal James -%xded and employed a Merent discourse wlien dealing with the governance of England. " (p. 72) The mat ri.^ of James's ideological discourse was dready evidenl and lus absoiutism clearly mmed lq the above-mentioned conditions that James placed on his theory. oath suggested, but the judgement of a breach in that pact was within God's sole pu~ew.259The subjeas were bound to obey the king as God's anointed ruler but also "by the tùndamentaii lawes of the kingdom: For, as hee is their heritable ouer-lord, and so by birth, not by any right in the coronation, cornmeth to his ~rowne."~~'James claimed a secular and legal right to the crovm, and was wihg to actively refer to the ancient constitution in order to strengthen his position. The constraints of his ancestors meant that James was not exercising absolute power, as they originally did, but a power that conformed to his oath and feudal priviledges. The parliament played a prominent role in the king's conception of the fundamental laws of the kingdom. In the Bmiikon Dorou which he wrote for the guidance of his heir Prince Henry. the role of parliament and the nobles was clearly articulateci. James asserted that: "Parliaments haue bene ordained for making of Lawes," but a king should only make laws for the public good and be certain that he could execute t hem2" The parliarnent, which consisted of the t hree estates compnsing the church, nobility, and burghs, was part of the "ancient and fundamental policie of our kingdom.""2 It is clear fiom this statement that the ancient constitution of Scotland included parliarnent as an integral part of the Iaw-making process. Hierarchy and corporate endeavour were the keys to a properly constituted kingdom; parliarnent represented a tangible manifestation of this et ho^.^^^ James considered laws to be an essential component of a '' James VI and 1. Political Writings, p. 8 1. %id.p. 82. 2s 1 Ibid., p. 2 1. Ibid-. p. 25. '63 ibid.. p. 26. James condemned. -paritie the mother of confusion. and enemie to Vnitie. which is the mother of order." Quite concerned about the importance of laws in maintaining a king's oficc. lie frequentiy referred to iaws in the Basilikon Doi-on as the means of keeping peace. justice and equity. His king3 office. Indeed. the difference between a ladlking and a tyrant lay in the "making and executing of ~awes."'~As he had asserted in the lrew Lm, kings were ordained for the good of the people and: "A good King, thinking his highest honour to consist in the due discharge of his calling, emploieth ail his studie and pains, to procure and maintain, by the making and execution of good Lawes, the well-fue and peace of his people."2" The good king was to foiiow his own laws or risk being attainted and condemned as a tyrant. James advised his heir: "let it not be said, that ye comrnand others to keepe the contrary course to that, which in your owne person ye practice... let your owne life be a Iaw-booke and a mirrour to your people; that therein they may read the practise of their owne ~awes."'" This must be viewed as an attempt to differentiate between the absolute power of original kings and a self-imposed and limited power that characterized kings who were coeval with James. Of the three estates who helped make law, the nobles had the greatest temporal power and thus were the greatest potential threat to a unified kingdom and to the king's power. The nobility, to whom Buchanan had ascribed the role of guardians of the law and whom he saw as a corrective power over the king, were themselves guiity of enga_@ng in feuds despite the king's laws. Accordingly James urged Henry to teach the nobles - as he felt he had begun to do - to keep the King's law.*" 7t was James' hope that the noble lords could be removed fkom a position of intercessory intervention with the law and discussion of Parliament which he considered the lm-making body. tas exuemely Limited; perliaps he took its role to be seXevident and in need of little e.uplanation as i! should be calleci "but seldome." for the making of nav laws. (p. 2 1) 264 Ibid.. p. 20. :65 bid. '"I Ibid.. p. 34. '" ibid-. p. 28. fundion instead as the bulwarks and enforcers of the King's ~aws.~~'In this instance, Buchanan's righteous nobles would themselves be nibject to the same laws as the king: "by their naturall dewtie; they are oblished to obey the lawe, and keepe the peace all the daies of their We see in these actions not the proclamations of a despot, but rather the centralizing impulses of a king supporthg the strict adherence to a received constitution that placed priority on statute law. It should be apparent fiom this analysis that James VI and Scotland were far From being constitutionally naïve in the late sixteenth-century. Though ideologically inclined to a theory of absolutia monarchy, James VI clearly articulated a theory of kingship that contained very serious and concrete limitations on the power of kings. Both George Buchanan and James VI agreed that laws promulgated with the approval of the people were binding on the der. The divergence between them arose from a dispute over the source of authonty which sanctioned those laws and the nature of the "contract". or pact, that bound the mler to his subjects and the subjects to the ruler. The existence of the monarchy was therefore not a contentious issue, but the division and source of power in the kingdom certainly was. The appeal to an ancient constitution was the source of discord between the King's position and the origin of power put forth by George Buchanan. If the king abrogated the laws of the kingdom, the power of correction - and the locus of that power - became pertinent topics of discussion. This analysis of James VI's theories reveded that he had been engaged in constitutional discourse, which contained serious limitations on the der, long before he became the King of England. Ibid.. pp. 283 263 Ibid.. p. 28. Conclusion Let every sou1 be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of Gd: and they that resist shall receive to themseives damnation. For ders are not a terror to good works. but to the evil. Wiit thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same: For he is the minister of God to thee for good. But ifthou do that which is evii, be afiaid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute mthupon hun that doeth evil. Romans 13:14 Shifis in ideology are predicated on, and produced by, changes in political circumstances, religious or spiritual convictions, and alternative explanatory paradigms. Changes to the cosmology or mental worid of an entire culture, or even a sub-group of a larger political body, involve considerably more variables. James VI attempted to establish an ideology that was both ancient and innovatory; he wanted to re-establish the power of the king through an emphasis on the power of a king's laws. In a society based on obligations incurred as a result of birth, aliegiance, or band, this attempt to establish respect for the rule of law, and concornitantly the power of the centrai authonty. was certain to rneet with claîms of innovation and absoltitism. Any social group with established relations of power is loatb to usurp, or alter, the system which validates its social position and power within a circumscribed community. The history of Scotland from 1567 to 1 598 is illustrative of this process of accommodation and conflict between, and among, various groups responding to what they envisioned as an aggrandizement of power and authonty by the king. Power, legai ri&, and judicial initiative had been alienated by many Kings in Scotland as a means to exert a vicarious fom of social control. James VI's entire kingship was spent attempting to regain power that had been 'fmed-out' by his predecessors. It is not a question of the nobles taking power, but rather of power being devolved on them. Stephen Davies did not wnsider this process to be the result of poor kingship: This devolution of judicial power was not the product of reprehensible or irresponsible behaviour by the Crown. In the later Middle Ages, kings alienated their regaiian rights to local lords and magnates principally because they were not powefil enough to exercise them on their own beha& and in the intereas of law and order it was better for the rights to be granted to one who could put them into effect2'* A legal system that is placed in the hands of factious individuals may provide a rough measure of justice within a particular faction, but it fails to provide order and justice between factions and fiirther fails to apply the law universally. The acceptance of parliament as the highest court and source of law in the land revealed that the machinery of a responsive and universal legal system was within reach. James VI however, had to ovemirn centuries of royal weakness in order to reinvigorate the power of the law, of parliarnent, and ultimately to reinvigorate his own power as the head of the system. It is apparent that this ideological shifi evoked an immediate, and frequently violent, response from the nobles who had enjoyed considerable individual power and influence, and also a response fiom radical members of the Kirk of Scotland who felt that their rights and influence permeated all aspects of the State. The response Rom these groups helped to shape the constitutional position of James VI. The tribulations of James' minority were indicative of the real power wielded by the nobles. It has been demonstrated that the language of the ancient constitution - primarily of the binding power of fundamental laws and the role of parliament - was fiequently invoked to justify the actions of a rebellious nobility. In refemng to fundamental laws the nobles had suggested that the king was bound by natural and divine law; by claiming that the laws and traditions of the king's forebears constrained the present king the implication was that James was bound by the positive law as weil. This practical expression of a theory of limited monarchy did not state that ultimate authority resided in the "people", as the theories of George Buchanan and Thomas Craig suggested, but it did suggest that the nobles' predilection for forcibly changing the govemment was a constitutional prerogative. It was, in essence, a powerful manifestation of the authority and power of the "people" as expressed by the leaders of society. There was a consensus between Buchanan and James VI that kingship was a contractual relationship. The discussion of the remedies for a breach of this contract revealed a sharp daerentiation between these two constitutional positions. For Buchanan. a breach of the contract meant that the King could be rernoved through the sovereign power of the people; for James however, any theory of kingship which left the king at the mercy of the subjects was antithetical to the concept of a Divine Right King. Kings, to James, were appointed by God, and their covenant was tripartite: the king was to be a Godly derwho obeyed his own laws, but the king was also God's emissary, for good or evil, who must be obeyed and was thus beyond the recriminations of the people; the role of the subject was to simply obey the king and God. It was From this relationship with the authority of God that the religious challenges dunng James' reign arose. The Melvillian rninisters clearly believed that they, as representatives of the Kirk, had the sole right to interpret the will and word of God. They believed themselves free to condemn the secular derwhen that ruler appeared to behave in a manner inimicai to the "tr~e'~faith, as they interpreted it. It was suggested that this codict between certain Kirk members and the King contributed substantially to the use of a constitutional vocabulary in Scotland. It is apparent that the genesis and delineation of radical political ideologies in Scotland, as in France and Gerrnany and among the Jesuits, was powerfully conditioned by the Protestant Reformation. When the religion of the "peopie" differed from that of the king, eveiy action and proclamation of the king could seem a breach of Buchanan's contract and an act of tyranny. When, to the detriment of the faith, a king did not conform to the dictates of the church, he was surely fighting against God. The theones of resistance this dichotomy engendered in Scotland can be seen in the writings of John Knox, George Buchanan, Johnston of Wariston, and Samuel Rutherford. This thesis has taken cornmon conceptions of the Scottish political climate under James VI and tested them against contemporary evidence. The result has been a portrait of a political atmosphere suffused with legal and ancient constitutional discourse, and further characterized by religious factors, which permeated dl facets of the social fabric, strongiy interacting with, and conditioning, political events in Scotland. Actions based on self-interest, greed, envy, and a lust for power stiil played a role, but justification was to be found in religion and, irnportantly, in the appeal to an ancient constitution. Even the well known "absolutist" James VI, believed that an ancient constitution controiled the practical and pragmatic exercise of power in Scotland. According to lames, the fiee monarchy of original kings was absolute; however, James never clairned those powers to himself as he viewed his power as hereditary and thus derivative. This thesis does not purport to provide the answers to the historical debate on kingship in Britain. It has been an attempt to generate questions; focused and contextually generated questions?that will help both Scottish and English historians to look beyond the preconceptions of a later age and analyze the reign of James VI on its own merits. ifwe insist on looking to the past for the path to, or justification oc the present, we owe it to the past - to the men and women who lived and died in our subject matter - and to ourselves. to approach history in a contextually valid and complete manner. Primarv Works Acts of the Parliament of Scotiand. Thomas Thomson and Cosmo hes (eds.). (Edinburgh: 18 14- 44.) Balfour. James. The Practicks of Sir James Balfour of Pittendreich. Peter G.B.McNeill (ed.). (Edinburgh: The Stair Society. 1962.) Buchanan George. De Jure Remi Apud Scotos or. A Dialome Concerning the due Privile&e of Govemment In the Kingdom of Scotland. Translated by Philalethes. (London: Richard Baldwin, 1689.) 'Remm Scoticorum Historia- in W.A. Gatherer (ed.) The Tvrmnous Reim of Man. Stewart. (Edinburgh: University Press. 1958.) The Art and Science of Government Amone the Scots. Translated by D.C. Macneill. (W. Maclcllan, 196.1 .) Caldenvood, David. The TmHistory of the krk of Scotland. (Menston. Yorkshire: Scolar Press. 1678 editioa. 197 1.) The Histort. of the Kirk of Scotland. Thomas Thomson (4,).(Edinburgh: Wodrow Society, 1843 .) Cameron Annie 1. (ed.). The Warrender Papers. Vo1.2. (Edinburgh: Scottish Historicai Society. 1932.) Craig. Thomas. De Unione Reaiorum Britanniae Tractatus. C .S. Terry (ed. and tram.). (Edinburgh: Scottish Historical Society, 1909.) Scotland's Soverei-qtyAsserted. Translated by George Ridpath. (Edinburgh: Andrew Bell, 1695.) Hope. Thomas. Hom's Maior Practicks 1608-1633. J.A. Clyde (ed.). (Edinburgh: The Stair Society- 1937.) James VI. King; James VI and 1: Political Wntings. J.P. SomeMlle (ed.). (Cambridge: Cambridge University Press. 1994.) Knox John. 'Apellation to the Nobiliw' in M.A. Breslow (ed.).nie Political Wntuies of John Knox. (Washington: Folger Books, 1985.) Macdonald Alexander (ed.).Letters to the Arwli Famih: From Elizabeth Oueen of Endand. MF Queen of Scots. King James VI. King Charles L King Charles II. and others. (Edmburgh: AMS Press. 1839.) Masson David (ed.). The Rester of the Priw CounciI of Scotiand. (Edinburgh: H.M. General Register House. 1880.) Melville. James. The Autobiographv and Diarv of Mr. James Meld. Robert Pitcairn (ed,). (Edinburgh: Wodrow Society. 1842.) Spottiswoode. John. History of the Church of Scotland. (Edinburgh: Spottistt'oode Soci-185 1. ) Brown (Wodd), Jemy. 'S~omshPolitics 1567- 1625.' in A.G.R- Smith (ed.) The Reim of James VI and 1. (London: Macmillan, 1973.) pp.22-39 Burns. J.H. The True Law of Kingstiip: Concmts of Monarchv in Earlv Modem Scotland. (Mord: Clarendon Press. 1996.) 'The Political Ideas of George Buchanan' Scottish Historical Review. Vol -30: No. 109. April 195 1 pp.60-68 Chnstianson. Paul. 'Royal and Parliarnentary Voices on the Ancient Constitution c. 1604- 162 1.' in L. Lay Peck (ed.). The Mental World of the Jacobean Court. (Cambridge: Cambridge Univers* Press. 199 1.) pp.7 1-95 Cooper. Lord. 'From Davis I to Bruce. 1124-1329.' in An Introduction to Scottish Leml Hinom. By varîous authors. (Edinburgh: Stair Society. 1958.) pp.3- 17 Davies. J. 'The Courts and the Scottish Legai System 1600- 1 747.' in V-A-C. Gatrell et al. (eds. ). Crime and the Law: The Social Historv of Crime in Western Europe since 1500. (London: Europa Publications. 1980.) pp. 12 1- 154 Donalcison. Gordon. Scoùand: James V to James W. (Edinburgh: Oliver & Boyd 1965 .) Elton. G.R. 'A High Road to Civil War.' in Studies in Tudor and Stuart Politics and Government: Papers and reviavs 1946- 1972. (Cambridge: Cambridge University Press. 1974. ) Eventt. Man. The Communitv of Kent and the Great Rebeliion. (Leicester: Leicester University Press. 1966,) GaIloway Bruce. The Union of Scotland 1603-1608. (Edinburgh: John Donald Publishers Ltd.. 1986.) Gardiner. S.R.History of Endand from the Accession of James 1 to the Outbreak of the Civil War: 1603- 1642. (London: Longmans. Green. and Co.. 1884- 1908.) Hill. Chistopber. The World Tumd Upside Dom: Radical Ideas during the Endish Revolution. (London: Temple Smith 1975. ) Lee. Maurice. Great Britain's Solomon: James VI and 1 in Ws Three Kinedorns. (Chicago: University of Illinois Press, 1990.) Levack, Brian P. 'Law, sovereignty and the union,' in Roger Mason (ed.) Scots and Britons: Scottish Political Thou& and the Union of 1603. (Cambridge: Cambridge University Press, 1994) pp.2 13-23 7 Levack, Brian P. The Formation of the British State: Endand. Scotland and the Union 10034707. (Mord: Clarendon Press, 1987.) Llofi H.A. 'Constitutiooalism,' in J.H. Burns (ed.) The Cambridrre Histoe of Political Thought 140-1700. (Cambridge: Cambridge University Press. 199 1,) Mason, Roger. 'Rex Stoxm: George Buchauan. James VI and the Scottish Polity.' in J. Dyer et al .(ais.), New Pers&ves on the Politics and Culture of Eariy Modern Scotiand. (Edinburgh: John Donald Publishers Ltd.. 1982.) pp.9-33 Mcilwain. Charles H. (ed.).The Political Works of James I. (New York: Russell & Russell [nc.. 1965.) Morrill, John, The Revolt of the Provinces: Conservatives and Radicals in the En-dish Civil War 1630- 16%. (London: Allen &Untvin 1980.) Murdoch. Alexander. 'The Advocates, the law and the Nation in Early Modern Scotland- in Wilfrid Prest (ed.). Lawvers in Earlv Modem Europe and America. (New York: Hoh& Meier Publishers Inc.,) Notestein. Wallace. 'The Winning of the Initiative by the House of Gommons.' Proceedings of the Bnrish Academy, 1924-25 ( 1 1). pp. 125- 175. Philip. J.R. 'Constitutional Law and Histop.' in An htroducton. Survev of the Sources and Literature of Scots Law.By various authors. (Edinburgh: Stair Society, 1936.) pp.356- 369 Pocock J.G.A. The Ancient Constitution and the Feudal Law: A Studv of English Historical Thou& in the Seventeenth Century. (Cambridge: Cambridge University Press. 1987.) Rait, R.S. The Scottish Parliament before the Union of the Crowns. (London: Blache and Son. 1901.) Ranke, Leopold. The History of the Popes: Their Church and State in the Sixteenth and Seventeenth Centuries. (London: Whitiaker and Co.. 1863.) SornrnerviIle, J.P. 'James 1 and the Divine Right of Kings: English Politics and Continental Theory', in Linda L. Peck (ed.) The Mental World of the Jacoba Court. (Cambridge: Cambridge University Press, 199 1.) pp.55-70 Tem. C.S. The Scottish Parliament. Its Constitution and Procedure 1603- 1 707. (Glasgow: J. MacLehose and Sons. 1905.) Trevor-Roper. H.R. -George Buchanan and the Ancient Scottïsh Constitution' The English Histot-ical Rwiew. Supplement 3. 1966 pp. 1-53 Williamson, A.H. Scomsh National Consciousnws in the Age of lames VI. (Edinburgh: John Donald Publishers Ltd.. 1979.) Wooten, D. (ed.). Divine Ri.& and Democracv: An Anthoioev of Politicai Writinn in Stuart E@and. (New York: Penguin Books. 1 986.) Womiald, Jemy. Court, Kirk. and CommUnjfY: Scotland 1470- 162%(London: Edward Arnold. 198 1.) 'lames VI and 1: Two Kings or One?- History. Vo1.68. L 983 pp. 187-209 'James VI and 1, Basilikon Doron and The Trew Law ofFree Monarchies: The Scottish Context and the Engiish Translation,' in L.L. Peck (ed.), The Mental World of the Jacobean Court. (Cambridge: Cambridge University Press. 199 1.) pp.36-54