sequent to the Reformation, the Church occasionally was not specially represented in the great council of the nation, and at last was completely excluded from all direct representation in the king's parliament. This latter state of matters may be fixed as having taken place on the final establishment of Presbyterianism in the reign of Charles II. When the doctrines of the Reformation were adopted, this exclusion was neither intended nor anticipated.

For

some time after the supreme authority of the pope in church matters had been overthrown in this country, there was a vacillation between the Presbyterian and Episcopal forms of church government. When Episcopacy was in force the bishops had seats in parliament; but, by the lay impropriations of the church lands, the prelates were shorn of their former wealth and lustre. Indeed, from the time of the Reformation the episcopal order virtually ceased to have any influence on the affairs of the nation. Still, I ought to say that in 1597 (15 James VI. c. 235) it was enacted that all pastors and ministers upon whom the king conferred the office, place, title, and dignity of a bishop, abbot, or other prelate was to have a vote in parliament as fully as any ecclesiastical prelate had in any time theretofore. Three years afterwards, the Presbyterian Church passed a resolution that it might be represented in parliament by certain of its members chosen by the king, and that they were to resign their power to the general assembly of the Church every year.

203. Creation of peers.—With regard to the greater barons, the right to sit in parliament became

less than ever based on tenure of land, and more on titles conferred by the sovereign as the fountain of honour. The result of this has been that there is not a single nobleman in Scotland entitled to a seat in parliament by virtue of tenure, that is to say, by his holding land immediately and directly from the crown, and there is only one English nobleman who can make even a plausible claim to a seat in the British House of Lords by virtue of his title to a landed estate. One mode of conferring an hereditary peerage was by the king issuing a writ commanding one of his subjects to appear in parliament, and by this summons being followed by the actual presence of such person in the high court of parliament. If he never took his seat, neither he nor his heirs were entitled to the honours of the peerage. Another mode was by the issuing of royal letters patent conferring the rights of the peerage upon the patentee and his heirs.

204. Peers could nominate proxies.-An act was passed in 1617 (22 James VI. c. 7) declaring that any lord of parliament, who was lawfully excused for absence from parliament, might give power to another lord of parliament of the same estate as himself to reason and vote for him. This statute did not extend to commissioners of shires or burghs.

205. Life peers in Scotland.-That there were life peers in the Scottish parliament is not to be doubted. For example, the earl of Athole was made earl of Strathern for life in 1427; the earl of Crawford made duke of Montrose for life in 1489; the lord Douglas made duke of Hamilton for life in 1666; Sir Walter

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Scott made earl of Tarras for life in 1660; and Francis Abercromby made lord Glassford for life in 1685. It ought to be observed that only one of those life peers was a simple commoner.

206. The British House of Lords must either surrender its appellate jurisdiction or allow judicial life peers to be created.—Life peers, except bishops of the English Church, have been, in recent times, declared by the House of Lords to be opposed to the laws now existing as to parliament; but how far this resolution ought to remain a part of the constitution is extremely doubtful, and might, with advantage to the interests of the nation, be again discussed. For my own part, I can see no objection to the highest officials of the state, whether judges of the supreme court, or high executive and military officers, at home or abroad, being placed in the same position as the great dignitaries of the English Church. It is perfectly clear that, if the House of Lords is to continue as the supreme court of appeal in civil causes, some measures must be adopted to obtain the highest legal talent of the country without compelling the appellate judges to be burdened with the serious responsibilities of the hereditary peerage. The truth is, the legislature must adopt one or other of two courses, namely, it must either legalize life peerages, or agree to the abolition of the civil appellate jurisdiction of the House of Lords, and to the establishment of a new and independent court. Considering the historic glory of the House of Lords in relation to the administration of justice, and the confidence placed by the people in the integrity, wisdom, and learning of those who have hitherto

presided in this august tribunal, I hope that the present jurisdiction will be retained, and that the creation of life peerages will be sanctioned. (Vide 39 and 40 Vic. c. 59, 1876).

207. The lesser barons.-As early as 1427, James I. authorised the lesser barons to choose representatives to act for them in parliament; but this privilege long remained in abeyance. It was not till 1587 that the representation of the counties was placed on a satisfactory basis and really became operative.

208. Qualifications of electors and commissioners of counties, and payment of expenses by counties.-By 11 James VI. c. 114 (1587) the act of James I. was ratified, and the king's freeholders, who had 40s. a year in land, and actually resided in the county, were ordered to elect two wise men, who were freeholders of the king, had their dwellings in the shire, were possessed of good rents, and well esteemed, to act as commissioners of each shire, and have power to act in place of the shires. The freeholders of the county were to be taxed for the expenses of the commissioners.

In 1661 it was enacted that, besides the 40s. heritors in capite, all heritors, life-renters, and wadsetters holding of the king, and all others who held their lands formerly of the bishops or abbots and then of the king, and whose yearly rent amounted to ten chalders of victual, or £1000 Scots (all feu-duties being deducted), should be and were capable of voting in the election of commissioners of parliament, and to be elected commissioners to parliament, "excepting

always from this act all noblemen and their vassals." The allowance to the commissioners was fixed at £5 Scots a day, and was to be paid by the whole freeholders, heritors, and life-renters holding of the king and prince, according to the value of their lands and rents within the shire; but noblemen and their vassals were not liable to pay any part of it.

In 1681 (3 Charles II. c. 21) it was declared, in reference to the election of commissioners for the counties, that where the lands do not appear to be of 40s. of old extent, the right to vote shall belong to all who are infeft in land which is liable in public burdens for the king's supplies upon £400 of valued rent, held of the king or prince; and further, that liferenters and husbands, in respect of the freeholds of their wives, or as having a right to the life-rent by the law of courtesy, should claim their votes; and if they did not, the fiar should have a vote. The fiar and life-renter could not both have votes, unless for distinct lands of the holding, extent, and value already mentioned.

209. Exposition of parliament in feudal times.— This last act, perhaps as clearly as any hitherto in the statute book, discloses the grounds upon which the representation in the Scottish parliament was based. Possession of land was the basis of the whole structure, and an essential condition was that it should be held directly from the king. Thus the dignified clergy sat in the feudal parliament as freeholders or barons in capite, and the greater barons also appeared as freeholders of the king, and not till afterwards as peers created by the sovereign power. Moreover at