Historical Introduction

The Scottish Privy Council

When historians mention ‘the Scottish government’ in the sixteenth and seventeenth centuries, they are usually referring to the privy council. For most of the two centuries before its abolition in 1708, the Scottish privy council was the single most important institution of central government. It was the executive branch, handling day-to-day responsibilities in tandem with the monarch, although each ruler before 1603 had his or her own way of interacting with it. James V (r.1512-42) and his daughter Mary I (r.1542-66) were often absent from the council table, while her son James VI and I (r.1566-1625) was almost obsessively diligent, being the single most frequent name found in council sederunts before 1599. The closest parallel is the modern cabinet, in which ministers of state discuss and make high-level policy decisions.

Origins and Development

Medieval monarchs sought counsel from the great men of their realms in making judgements on disputes brought to the king by his lieges and in making decisions on what we might now call government policy, from waging war to reforming administration, and we know that Scottish kings had counsellors from the earliest times. From such meetings emerged a range of institutional bodies, including parliament, central courts of law, and the privy council. Written records of the deliberations and decisions of these early councils are, however, lacking for much of the medieval period and, indeed, where we do have such records, the most obvious thing about them is how hard it is to discern the precise nature of the body that issued them. The principal reason for this is that the clear institutional differentiation so familiar in later centuries had simply not yet occurred.

Something that looks very like the Scottish privy council emerges into the light of day in the late fifteenth century. The oldest surviving conciliar records date from the 1470s and consist of judicial decisions, while the earliest records for the council’s civil deliberations date from the beginning of the sixteenth century. However, there is evidence that still earlier records once existed but are now lost. One of the challenges for the historian of medieval Scottish government is the fact that records can evolve at a different rate from the institutions whose decisions they preserve. Thus, in amongst the records of the king’s council are found those of ‘general councils’ (later known as ‘conventions of the estates’). These were augmented meetings of the king’s council, often akin to parliaments in their composition, though less formal. They were summoned at short notice, usually to deal with pressing matters of state, and their decisions might later be confirmed in the next full parliament. Indeed, it was not until well into the reign of James VI that an attempt was made to create a separate register for conventions of the estates, although that was only partially successful, as many records of later conventions are to be found in among those of the privy council.

One might be forgiven for assuming that the formal creation in 1532 of a central civil court, the college of justice, more commonly known as the court of session, would have led to the privy council losing its judicial functions. In spite of this deliberate differentiation of two aspects of the function of the king’s council, the privy council continued to act as a court of law, receiving complaints and making judgements. The common origin of the two bodies was preserved in the judges of the college of justice being usually referred to as ‘the lords of council and session’.

A key function of the privy council was to provide continuity in government. While the Stewart succession remained reasonably secure throughout the later middle ages and even down to the end of the seventeenth century, a long succession of monarchs succeeded as minors. As the one permanent institution of government, the council provided the stability required to weather the transitions from minority to majority and back again, as happened six times during the sixteenth century. James V, Mary I and James VI all had long minorities, during which the council carried on the business of government, working under the various regents appointed to rule on behalf of the underage monarch. This quality also provided a remarkably smooth transition into absentee monarchy in 1603. The council might also provide welcome stability in turbulent times, as was the case under Mary, a Catholic who sought compromise through retaining a Protestant-dominated council on her return to Scotland in 1561, both to signal her acceptance of the Reformation settlement and to avoid the risk of reopening the civil war of 1559-60. On the other hand, the council’s striking failure to provide an effective response to either of the two revolutions in the seventeenth century (in 1638 and 1688/9) testifies to the fact that it struggled to retain its credibility when it could not properly represent the inclinations of the powerful men of the kingdom but instead sought to promote the agenda of an out-of-touch monarch.

 

In many ways, the privy council came into its own during the long personal reign of James VI (c.1585-1625), a period which would cement its role as the key organ of government. In his early years, James was careful to balance its personnel to mollify factions within the nobility, and to obtain regular parliamentary approval each time its makeup was changed, or its procedures reformed. The most striking feature of its development in this period was what could be described as its professionalisation, culminating in the reconstitution of the council at the end of 1598. After that date, the frequency with which it met and the volume of its business increased substantially, setting the foundations for its enhanced role after the regal union of 1603 and James’s departure for London. A core of diligent administrators came to dominate council sederunts, while many heads of great noble houses took a back seat. Indeed, one of them, the earl Marischal, was thrown off the council for poor attendance. Communication with the monarch in London was frequent, but the council often had to take the initiative itself, for it took nearly two weeks for even the fastest message to get to London and for the king’s reply to return to Edinburgh. Under Charles I (r.1625-49), however, this system broke down. Much of the responsibility for that lay with the king himself, who was strikingly impervious to good counsel, but it also reflected the council’s own inability to mediate between a distant monarch and an on-the-ground political elite whose outlooks were growing apart. When crisis erupted in the form of the revolution of 1637-8, therefore, the council lost control entirely.

The throughgoing constitutional reforms instituted by Covenanting parliaments after 1639 led to the council’s partial eclipse, with the emergence of the committee of estates, appointed by parliament to govern the kingdom between parliamentary sessions. While it continued throughout the 1640s, it was a shadow of its former self, and its substantially diminished role is reflected in the drastic reduction in the volume of its business. However, it was not until the conquest of Scotland by the English Commonwealth in 1651 that what could have been the coup de grace was dealt to the Scottish privy council, as it was swept away, along with the Scottish parliament by a Cromwellian regime which sought to incorporate Scotland into a new, united British republic. Yet the Commonwealth, and its successor, the Protectorate, proved to be short-lived and the Restoration in 1660 of Charles II (r.1649-51; 1660-85) saw a decisive reassertion of royal power. The privy council was restored to its central role in the government of the kingdom and, over the next three decades, it carried out that role with more vigour than ever before. While it continued to execute all of its previous functions, it was now much more focused on dealing with religious and political dissent. This arose because many Scots (clergy and laity alike) remained loyal to the values of the Covenanters and sought to practise their religion outside the Church of Scotland, which was back under the control of bishops, as it had been before 1638. Yet now the council had at its disposal a state apparatus that far surpassed the resources and effectiveness of its pre-Covenanting predecessor, ironically largely because of the state-building efforts of that regime. The Scottish state could now raise revenue and deploy military force at short notice to deal with disorder and dissent. While this did not ensure complete domestic quiescence – Charles II’s government faced two armed insurrections, in 1666 and 1678 – it did allow the council to build up government authority significantly. Just as with Charles I, however, when James VII (r.1685-9) sought to impose unpopular religious policies on Scotland in the later 1680s, the council was once again unable to steer a middle course between implementing the king’s wishes and maintaining control of the kingdom.

Revolution and beyond

The revolution of 1688/89, which saw the Catholic James VII and II replaced by the Protestant William II (r.1689-1702), along with Mary II (r.1689-94), had administrative as well as political and religious significance. In the second session of the revolution parliament in 1690, the parliamentary steering committee known as the Lords of the Articles was abolished. This committee, which had existed since the fifteenth century, was a management group that had allowed the crown to control the business of the Scottish parliament. Its existence was seen as a grievance by many of those who favoured the Williamite revolution. Although new standing committees were then created in parliament, the privy council attempted a more enhanced role in maintaining the crown agenda, but in the face of an increasingly independent-minded parliament. The same 1690 session also abolished episcopacy (church government by bishops) and gave renewed statutory authority to presbyterianism. The General Assembly of the Church of Scotland, which had not met since 1653, now reappeared and entered into regular communication with the council. The council found itself having to support a resurgent presbyterian Church while at the same time, as encouraged by King William, seeking to promote a policy of toleration and to moderate the financial pressures and physical intimidation (or ‘rabbling’) exerted on the now marginalised episcopalian clergy.

Consolidation for the new revolutionary regime was clearly not merely about administration and religion. The most exigent questions before the council, particularly from 1690 to 1698, concerned security. Initially this meant tackling the counter-revolutionary campaign of Jacobites supported by the French, but this had mostly dissipated by late 1692. The second, and more sustained security issue was meeting King William’s demands for army and navy recruits from Scotland to help prosecute his wars against Louis XIV of France, which continued until 1697. In 1692 and 1693, for example, the council had to balance the urgent need for naval recruits and ensuring that port towns cooperated in the recruitment drive, with having to restrain over-enthusiastic ‘press gangs’ from unreasonable behaviour. Also, officers had to be commissioned, troops paid, and garrisons maintained and supplied at Fort William and at Dumbarton, Edinburgh and Stirling castles. The security situation seemed to improve by stages after the defeat of the French invasion fleet at the Battle of La Hogue in May 1692 and the Treaty of Ryswick of 1698, which ended the war.

However, concern for continued Highland lawlessness saw the council focus increasingly on domestic law and order and clan behaviour. This was famously associated with the Massacre of Glencoe in February 1692, where 40 or so MacDonalds of Glencoe were slaughtered by government forces. Justified on the grounds of tackling Jacobite sentiment, the massacre also spoke to long-standing governmental prejudice against Highland society, and the council was deeply enmeshed in the whole affair. Subsequently, the council oversaw the development of a new judicial commission for pacifying the Highlands, established in 1694, and by the end of the decade it had also established its own standing subcommittee on Highland affairs. Attempting to uphold law and order in the Highlands, and indeed elsewhere, would remain among the council’s most central roles right up to its abolition.

The law and order remit emphasised the judicial function of the council, which was particularly to the fore in the period from 1689 to 1708. In fact, its judicial function had four elements: as a court of first instance (unlike the English privy council), as an appellate court, as a granter of judicial commissions, and as a supervisory body for the judicial system. Of course, the majority of cases were heard in other Scottish courts, and the council often remitted cases to the high court of justiciary for criminal cases, the court of session for civil cases, or even to the various lower jurisdictions.  Criminal cases handled by the council typically concerned ‘riot’, an elastic term meaning any offence with implications for public peace, and especially riot related to matters of government. Subcommittees were set up to investigate cases before reporting to the full council, and in the post-Revolution period the Lord Advocate, from 1692 to 1709 Sir James Stewart of Goodtrees, and other council members who were senators of the college of justice, such as Sir John Lauder of Fountainhall, were tasked with interviewing witnesses and gathering evidence.

However, the council’s main judicial role was as a conduit for judicial mercy. Following the revolution, growing numbers of petitions were received asking for sentences (often of death) to be reduced to banishment or other lesser punishments. Some of these came from political prisoners, such as Jacobites and French troops, but many were submitted by ordinary criminals, seeking, through the council, to obtain the privilege of royal clemency – often successfully. In addition, the council took a close interest in censorship, regularly forming censorship committees to police the circulation of anti-government publications at a time when the press engaged with controversial subjects like Glencoe, Darien and the Union debate and also started to produce regular newspapers.

The council was also largely responsible for economic policy, sometimes taking its direction from parliament and often responding to petitioning from the convention of royal burghs, an ancient association of the main Scottish towns that met in Edinburgh and was usually represented on the council by the provost of Edinburgh. The council’s engagement in economic matters in the Restoration period is reflected in the offshoot of the privy council, the Council of Trade of 1681, chaired by James VII and II when in Scotland as duke of Albany and York, which advised parliament on economic affairs. But by the 1690s, Scotland’s economy had got worse, not better. The levers of economic policy, such as they were, existed in the context of the prevailing belief in mercantilism, that is using tariffs to maximise exports and minimise imports, and thus we see the council granting monopolies and patents, imposing price controls, and import and export duties, and ensuring the gathering in of taxation. The economic background was indeed very difficult with the near collapse of the Bank of Scotland in 1704, only established in 1695, and also the failed Darien scheme of 1698-1700, that final attempt by the Company of Scotland to cure Scotland’s economic woes by a costly and crippling plan to set up a trading colony at the Isthmus of Panama. This venture collapsed for a variety of reasons, including insufficient funds (even though Scots investors lost a quarter of Scotland’s liquid assets), the impracticality of sustaining a colony across the Atlantic on land claimed by the Spanish, and a lack of logistical help from King William and his colonial officers. The Darien fiasco and the general weakness of the Scottish economy explains in part why negotiations over Anglo-Scottish parliamentary union began in 1706, although the surviving records of the privy council indicate that the body played little part in the process, leaving it to the Scottish parliament. Nevertheless, transitional arrangements had to be made, and in two stages in April and September 1707 the council wrestled with the matter of the Scottish coinage and mint as affected by the Treaty of Union.