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"thinking that, being together, they were more able to give the Council information and satisfaction than by so few, who might be dazzled with difficulty of new propositions and acts not expected.”i In this protestation a new vein of sarcastic remonstrance was struck, to meet a new aspect of the question—the king's assumption of all responsibility. It was maintained that in this the Council libelled his gracious majesty ; yet so well did the protesters know the whole to be the king's own doing as to be fed for some time with the hope that the Council would not pass it. This was so nearly fulfilled, that although the Council did pass it, there were but few members presentnot enough, it was said, to make a regulation quorum. The representatives of the Tables refined upon the charge of libelling the king. To say that the king was the author of the grievances of Scotland, was to put them-his loyal subjects and only honest counsellors—in the false position of acting in enmity to their king.
We have here-perhaps in a more peculiar and effective shape than ever—the influence upon State events in Scotland of those legal forms which serve for the enforcement of private rights. Of the “protestation” or protest, the best known observance in the present day is the protesting of a bill of exchange for failure to accept or failure to pay. Even so applied, it is a formality of ancient descent. It intimates to the world, by a solemn and ancient form, that though the bill is not an obligation which can be enforced by the common-law authority, like a bond under seal, but is a mere counting-house slip of paper between merchant and merchant, yet the holder of it takes solemn protest at the hands of a notary-public of the empire that he holds it a good and veritable obligation, which he intends to enforce by whatever means he may find available to him.
In the absence of anything in Scotland like prerogative procedure in England, the influence expected of the protestations against the royal proclamations seems to have been something like this. If we let the commands con
tained in the royal proclamation pass in silence, we will be bound to obey them, as admitting that they are within the power of the Crown, and they will be a precedent for the future. But if proclamation be made to all the world that we count them nought, we are not compromised. The Crown must prove by old precedent that it has the power to issue and enforce such proclamations—the whole matter lies over for inquiry and discussion. The practice of the times furnished an example in point. When a litigant in the Court of Session considered that he had been unjustly treated, he “ took protestation for remeid of law,” and applied to Parliament for a remedy. Like such a person, the Supplicants took their protestation in the hands of a notary-public, whose intervention brought the affair within the region of diplomacy, since he was a traditional officer of the empire.
The Supplicants themselves had full faith in the effici. ency of their protestations. We shall see presently the efforts they made to get them punctually thrown in as the counterparts of the proclamations. In communicating afterwards with their constituents, they exulted, after the fashion of victorious litigants, over the successful tendering of the protestations. The document in which this is set forth, being an admonition or letter of information circulated from headquarters throughout their own body, is instructive, as showing that in confidential communing among each other, so far as concerns the objects deemed vital in their eyes, they spoke exactly in the terms in which they assailed the Government. We see in this, as in their more solemn annunciations, that they determine to stand by the religion and “the laws and liberties” of their country; that their enmity is against the prelatical members only of the Council; and that they hold the king, as deceived by the prelates, to be personally guiltless of the whole, and worthy of all loyal reverence.1
1 “The noblemen, commissioners of shires, and barons and others convened for this common cause, which concerns the preservation of true religion and the laws and liberties of this kingdom, understand. ing how the prelates, by misinformation of the king's majesty, has,
The document here referred to, called the “Protestation,” was among the most critical and serious of the Scots papers of its time, though its fame has been obscured by that of its companion, the Covenant. The protestation, with due homage to the momentous character of such a document, was carefully drawn by some
after their accustomed manner, procured a proclamation to be made for establishing the Service-book, and discharging all meetings under the pain of treason, have, in God's providence, legally obviate the publication and ratification thereof, by timeous protestations and declinature of the common adversaries, the bishops, at the cross of Stir. ling, the council-table there, the cross of Linlithgow, and the cross of Edinburgh, and are resolved to do the like at other places as need shall be ; wherethrough, in the judgment of such as understand best, their proclamations and proceedings is made of no legal force, to hinder the absolute necessar meetings of all that have interest in this common cause and necessary exigency." This was sent to the selectors of the sixteen who formed the Tables, to be circulated by each in his own district, “so as none may be overpast.”- Rothes's Relation, 68.
Afterwards, when the Duke of Hamilton came as commissioner, and begged that he might be spared the infliction of “a protestation," they said : “A protestation is the most ordinary, humble, and legal way to obviate any prejudice may redound to any legal act, and of preserving our right, permitted to the meanest subjects, in the highest courts of Assembly or Parliament, whensoever they are not fully heard, or, being heard, are grieved by any iniquity in the sentence-which is grounded on the law of nature and nations; that it is the perpetual custom of this kingdoin, even upon this reason, to protest, as it were, in favour of all persons' interest and not heard by any express act. Salvo jure cojuslibet, even against all Acts of Parliament.” And further, the protestation “is a dutiful forewarning the king and his commissioner of our desires and the lawful remedies thereof, the benefits of granting them and evil consequences of refusing them ;. is a sensible exoneration of us before foreign nations ; is a legal introduction of our lawful defences cum moderamine inculpatæ tutelæ; and the most necessar preface to our subsequent declarations in case of extreme necessity."-Ibid., 119.
In this work (p. 83 et seq.) will be found the documents successively issued at this juncture. They are long, with frequent repetition, and cannot be commended to the general reader for liveliness, sublimity, or any other quality likely to engross his attention. Fierce as was the excitement out of which they sprang, this would not be visible in them, nor would anything else of an interesting character, to one not trained in some measure to the forms and phraseology of the Parliament House of Edinburgh.
of the ablest lawyers of the day working together. That it was no empty declamation, but a weighty State paper, was shown by the Council, who endeavoured to evade. the reading of it by stealing a march on its authors. It happened that early on the morning of the 20th of February a footman of Traquair's stepped into a tavern for a cup of ale, and was heard to remark among other matters that his master had just left Edinburgh, Lord Lindsay, who was living in the tavern, heard what was said, and taking immediate suspicion, he sought out Lord Home, and the two took horse, galloped towards Stirling, and overtook Traquair, the treasurer. Finding that the protestation could not be evaded, the Council were in no haste to issue the proclamation; and before it was uttered, seven or eight hundred of the Supplicants had assembled to hear it. The proclamation was read by a herald-one of the class of officers who of old were not deemed the servants of provincial governments, but were franked by the Emperor as his representatives in all countries. The protestation was then read with solemn “ taking of instruments” by a notary, who also was by courtesy and in name at least an officer of the “Holy Roman Empire." When the Council went to Linlithgow to repeat the proclamation, there were the protesters before them. Passing on to Edinburgh, where it was to be made with the greatest amount of solemnity, the Privy Council, when they went to mount the cross, found a scaffolding opposite to it, on which were ranged their enemies, surrounded by a mob of Supplicants. The proclamation was received " with jeering and laughter of the most unmannerly sort." When it was finished, the crowd did not permit the councillors and the heralds to depart. They had to stay and hear the protestation, “as if one authority had claimed equal audience to both.” 2 Wherever the proclamation
i Rothes's Relation, 63. · 2 Gordon's Scots. Affairs, i. 33. This contemporary chronicler gives us this anecdote current in his day : “It is reported that at one of these protestations at Edinburgh cross, Montrose standing up upon a puncheon that stood on the scaffold, the Earl of Rothes, in jest, said to him, — James,' says he, you will not be at rest till you be
was uttered, there the remorseless protesters were in readiness. In all towns but one they had the sympathy of the people. In Aberdeen alone the Supplicants were in the minority, yet here they uttered their protestation.
In every step taken by them the commissioners from the Tables showed themselves to be thorough men of business, and adepts in statecraft, both in its principles and details. Among many able practical lawyers who assisted them, Sir Thomas Hope was supreme in the civil department, and Archibald Johnston of Warriston in the ecclesiastical. It is to Johnston that the world generally has attributed the project of renewing the Covenant.
This was a master-stroke of policy. The Covenant had been drawn under a reign of terror, when the Protestants of Scotland really dreaded the restoration of the old Church, with more than its old powers for avenging itself on insolent heretics. The League was terrible in France. Philip of Spain was preparing the great blow, which fell harmless because too late. The north of England was Popish; and Queen Mary was alive, ever communicating with Papists in Britain or the Continent. The haughty lords of Huntly kept a Papal court in the north, and there were many Popish lords in the western border. Thus stimulated by terror and hatred, the Covenant was a marvel of bitter eloquence. In now renewing it, the Supplicants had all the advantage of its denunciatory rhetoric, while they stood free of all charge of malignant exaggeration. It could not be said they did it-they were but repeating in the hour of their own difficulty and peril what the nation had uttered in a previous time of peril.
We have already seen how fiercely and potently the denunciatory clauses of this document had been drawn.2 A postscript was appended to the old Covenant to
lifted up there above the rest in three fathom of a rope.' This was afterwards accomplished in earnest in that same place. Some say that the same supports of the scaffold were made use of at Montrose's execution.”-Ibid.
i Gordon's Scots Affairs, i. 34. . ? See chap. lviii.