6 - The Preservation of Order

Summary

Amidst the religious and political turmoil unleashed by the European wars of religion, post-Reformation political theorists increasingly distinguished between a normal state of affairs where the rule of law strictly prevailed and a state of emergency which allowed civil authorities unrestricted powers to ensure civil order. Despite a prevailing consensus that absolute monarchical government in Scotland should conform to the rule of law, this precept was increasingly undermined as popular unrest escalated across the country during the late-1670s and 1680s. Acknowledging ‘a distinction of ordinary and extraordinary times’ in a commonplace-book from around 1682, one episcopalian minister nevertheless stressed the need to be ‘cautelous and dextrous’ in devising appropriate policies for such uncertain times. Recognising ‘some kind of undefineable Power’ vested in a sovereign, the Selkirk minister, James Canaries, insisted that such power defied legal expression since ‘only certain extraordinary Emergencies in the State can bring [it] out’. Although Canaries generally grounded obedience on conscience, he warned that no government could rest secure without placing ‘Shackles upon the very minds of Mankind, as well as upon their hands’ and retaining ‘Locks no less to the Doors of their Retirements, than to those of their Prisons’. Responsible for preserving civil order during the later years of the Restoration, the Lord Advocate, Mackenzie of Rosehaugh, thus identified ‘Necessity of State’ as ‘that Supereminent Law to which upon occasion all particular Acts must bow’. Originally developed to counter arguments for resistance in extremis, the application of this ‘supereminent law’ increasingly came to assume theoretical and practical prominence.

It has been argued that historians of late-seventeenth century England are belatedly beginning to appreciate that Restoration political culture was ‘more violent, more sharply divided, more absolutist, and at the same time more radical, than is usually thought’. Paradoxically, however, the increasing pressure to adopt extra-legal measures simultaneously focused intellectual attention on the theoretical scope of the law, reflected in William Blackstone’s eighteenth-century claim that 1679 denoted the year in which ‘the theoretical perfection’ of English law was achieved, most noticeably by the abolition of feudal tenures and the enactment of habeas corpus. In Scotland, by contrast, although Stair and Mackenzie also produced the first codifications of Scots law in the 1680s, there was no writ of habeas corpus, judicial torture was still regularly practised in state trials and the authority of hereditary jurisdictions remained.