I.—Origin, Membership, and Method
1. The two most important dividing lines in Scottish history between the tenth century and the sixteenth are the reign of David I (1124-1153) and the War of Independence, which forms a distinct period not less in constitutional than in political history. Before the reign of David I, the Scottish kings had a council of seven mormaers or earls; but it is difficult to assign to these any definite status or power, and we are unable to speak definitely of a General Council till the mormaers had become feudal barons. The change is to be attributed to the work of David I. His Saxon mother, St. Margaret, had made many changes in her husband's kingdom, and, by bringing Scotland into line with other European nations in ecclesiastical matters, had prepared the way for her son, who was to place his people under the sway of the great feudal impulse which was transforming the nations of Europe. Under David, the new influences were Norman rather than Saxon. Norman adventurers, like those who had made for themselves kingdoms in England, in Italy, and in the Holy Land, came to the Scottish court, and received grants of land in the south and east of Scotland. In this connection, we find, first of all, names which were to be the most illustrious in the annals of the country. To David I the Bruces owed their lands of Annandale, and the Fitzalans, who were to become the royal house of Stewart, received from him their earliest possessions in their future kingdom. By such grants of land Scotland was transformed from a tribal into a feudal country, and there arose a royal council formed on the normal feudal theory. The "sair sanct for the crown" completed his work by adding five to the four already existing bishoprics, and by founding the great abbeys which were to gain for him the honour of popular canonization. Thus bishop and abbot and prior could come with earl and baron to take counsel for the weal of the land. Burghs arose and became prosperous; but two centuries had to elapse ere the burgesses found a place among the advisers of the king.
Many of the charters after the time of David I describe, in somewhat vague terms, those who gave their consent and attestation; and their descriptions have been interpreted so as to afford ground for a theory of popular representation in the great council which developed into the Scottish Parliament. Gilbert Stuart convinced himself that he had proved that Scotland possessed a full parliament long before the English burgesses found a place at Westminster.[16] Even the more cautious Hill Burton considered that "these curious intimations stand by themselves, an acknowledgment—sincere or not—of the admission of popular influence in the actions of the government."[17] The claim to have anticipated the mother of parliaments rests, however, upon a misconstruction. The phrases on which it is founded are of three kinds. Some of them are vague words used by chroniclers, into which an exact constitutional meaning has been read. Others are the commonplaces of diplomatic, used without any appreciation of their strict signification.[18] The rest depend upon a misreading of the texts from which they are taken. The most important term which comes under the last-mentioned head is one on which Stuart laid special emphasis. The phrases "all gude men of the kynrik" and "all the community of the kynrik" are frequently found in the assizes.[19] The king statutes "be the counsel of the communite." But there is an assize of William the Lion, which is quite definite as to the meaning of the word. It was made at Perth, on St. Augustine's Day, 1184, and it bound "byschoppis, abbotis, erlis, baronis, and thanys, and all the communyte of the kynrik ... for to seyk and to get all misdoaris."[20] The penalty for disobedience was the loss of a manorial court. "Gif ony of thaim be attayntit of brekand this assyse, he sall tyne his court for evirmar." The whole "community" were lords of manors. The king, the prelates, and the barons, great and small, were "the community of the kingdom."
The burgesses had, indeed, a method of communicating with the king. Fordun tells us that in 1211 "King William held a great council at Stirling, when there were present his optimates, who gave him ten thousand marks, besides six thousand marks promised by the burgesses." It was with this quotation that Stuart clinched his argument. But the chronicler's words do not imply that the grants were made at the same meeting. We know, too, that each town sometimes treated separately with the king; and that for centuries before they were represented in the Great Councils the burgesses met in purely burghal assemblies. The "four burghs" of the South,[21] of which Edinburgh was the head, and the "Hanse burghs" of the North, which grouped themselves round Aberdeen, held their own conventions, legislated for themselves, and dealt directly with the king.[22] There was no necessity for their representation in the council. Beyond statements of chroniclers about the whole people's choosing a king[23] and so forth, we have absolutely no evidence that the Great Council, before the War of Independence, was anything more than a strictly feudal assembly, attended by such tenants-in-chief as chose to be present.
2. We pass now to consider the membership of the Scottish Parliament after the War of Independence. The first instance of the use of the word "parliamentum" is in connection with the treaty of Brigham, made in 1289 between Edward I of England and the Scots; but the terminology is obviously due to English influence, and there is no evidence whatsoever of any popular representation. It is not till the year 1326 that we find a complete parliament, containing lords and commons, and this must be kept in mind while we proceed to the consideration of the normal form of the "Estates of Scotland."
In the first place, we have the clergy. Bishops, abbots, and priors possessed, as tenants-in-chief, the same right of attendance in councils as secular freeholders had, and they could more easily make use of their opportunities. At the Reformation, the bishops who became protestants, the lay commendators, and the "tulchan bishops," seem to have kept their seats. But acts between 1560 and 1597 speak of the "decay of the ecclesiastical estate," and we know from the lists of Lords of the Articles that the clergy almost ceased to be an essential portion of the Scottish Parliament. Presbyterianism neither desired nor claimed any such right. Its aim, as we shall see, was higher. We do, indeed, find that in 1567 Parliament
thocht expedient ... that thair be adjoynit unto thame in treating of the thingis concerning the kirkis, thir personis underwritten, to wit, Maister John Spottiswood, Maister Johne Craig, Johne Knox, Maister Johne Row, and Maister David Lindesay or any three or foure of thame.
This, of course, was a special arrangement to meet a particular contingency. But in 1597 James VI, acting on his principle of "No bishop, no king," found himself strong enough to enact that
sik pasturis and ministeris ... as at ony tyme his maiestie sall pleis to provyid to the office, place, title, and dignitie of ane bischoip, abbott, or other prelat sall at all tyme heirafter haif voitt in Parliament.
Next year, the ranks of "sik pasturis and ministeris" produced three bishops and five abbots, and thenceforward they increase in numbers, being reinforced by the Act of 1606 which established Episcopacy. The Parliament of 1640, acting on the claim of the General Assembly of the Church, that "the civill power and place of kirkmen" was "predjudiciall to hir Liberties, and incompatible with hir spirituall nature," ordained "all parliaments to consist of noblemen, barronis, and burgesses," and of these alone. At the Restoration, bishops again formed one of the Estates; but they appear for the last time on the rolls of Parliament in 1689.
The place of the greater lords in the Scottish Parliament has long been understood. The brilliant pen of Professor Innes and the accurate investigations of Mr. Robertson have, in this respect, added little to the statement of the case made by George Wallace more than a century ago.[24] The earl or the duke had just the same right to sit in Parliament as the smaller freeholder. His title gave him only rank, not power. It did not even necessarily entail jurisdiction, for we have instances of earldoms being raised to the position of regalities.[25] The king in creating an earldom did not directly confer the title upon the new possessor. He created the lands into an earldom. When the lands were sold the title fell to the purchaser. Territorial honours could descend to a female—although no female might sit in the king's council—and could be borne by the husband of the female possessor. In criminal trials, lairds were the peers of earls. Had the Act of 1427 been carried out, it would have led to an assimilation to the English system of peerage. The actual change is to be attributed to the Act of 1587. Really, as we shall see, this act was a guarantee that the freeholders should have some influence in Parliament; theoretically, it involved the abolition of their right to sit in person, and so converted that right, as it remained to the greater barons, into the essentials of a peerage. Personal honours were certainly known in Scotland before 1587;[26] but they were not peerages in the English sense. The bearers of these purely personal titles—the earliest of which belong to the fifteenth century—sat in Parliament in virtue of other claims. But, after the Act of 1587, all honours became personal, and the rules of descent were altered.[27] In 1689, the Scottish nobles obtained a strictly legal recognition of their rights as possessors of peerages.
The right of the smaller barons to attend councils as tenants-in-chief of the king had never been denied; but there was little to induce them to take advantage of their opportunities. Travelling was expensive and dangerous, and unpleasant incidents were not unlikely to occur in their absence. Their power in Parliament was small. Most of them felt that they were sufficiently represented by the great lord to whose person and interest they had attached themselves. We frequently find them appearing by procurators. When King James I returned from his long imprisonment in England he adopted the policy of using the smaller barons against the too powerful nobles. He had been captured by Henry IV, and educated amid the influences of Lancastrian constitutionalism. His aim in Scotland was to introduce a "new monarchy," and he determined to make the existence of Parliament the main weapon in the encounter with his rebellious lords. Accordingly, in the year 1425, we find that all prelates, earls, barons, and freeholders, "since they are holden to give their presence in the king's parliament and general council," are enjoined to appear in person "and not by a procuratour, but if that procuratour allege and prove lawful cause of his absence." The result perhaps surprised the king. There were many "lawful causes." We have no record of the form they took; nor do we need any record, for the political history of the period is clear enough. All that the rolls of Parliament can tell us is that the experiment was unsuccessful, for two years later James adopted a much bolder plan, and introduced a serious modification of the constitution:
Item, the king, with consent of his whole council general, has statute and ordained that the small barons and free tenandry need not to come to parliament nor general councils, so that of every shiredome there be sent chosen at the head court of the shiredome, two or more wise men after the largeness of the shiredome, except the shiredomes of Clackmannan and Kinross, of the which one be sent of ilk ane of them, the which shall be called commissioners of the shire.
It was not, of course, the English system of representation. The English voter had no right to be present in Parliament. His representative did more than merely save him the trouble of attendance. King James did not propose to extend the franchise as it had been extended in England. His proposal was much more conservative. But it was never operative, and, in a few years, it was completely forgotten. The smaller barons continued to be regarded as bound to give attendance in Parliament, and occasionally some of them were punished for absence.
There is here no indication of the rise of a constitutional spirit. It was a method of private revenge, and measures were passed to relieve the smaller barons. In 1457 Parliament declared that "all freeholders under twenty pounds" were exempted. The limit was raised in 1503 to "a hundred marks of this extent [i.e. assessment] that now is." All whose holdings were under that amount might send procurators, unless they were specially summoned by the king's own writ. The procurators were to attend "with the barons of the shire or the most famous persons." The phraseology suggests that the "procurators" might be merely retainers of the greater lords. All "above the extent of a hundred marks" were bound to attend "under the pain of the old unlaw." These acts are generally regarded as freeing the lesser barons from the burden of attending Parliament. From all that is known, alike of the political and of the constitutional condition of the country, it seems much more likely that the real burden from which it freed them was that of "the old unlaw." The distinction is not without a difference. It was a protection from the occasional arbitrary employment of a partially obsolete penalty. The result was the entire absence of the smaller barons from the meetings of Parliament. In 1560, when a great question fell to be decided, and the leaders of the revolutionary party desired the presence of the freeholders, the old right was so far doubtful that a petition was laid before the Estates, in which the smaller barons claimed—adopting unwonted language—that "statutes which they had not been required and suffered to reason and to vote at making, should not bind them."[28] The proceedings of the parliament of that year were not confirmed, and our knowledge of them is incomplete. But we learn from a letter written by Randolph, the English ambassador, to Cecil, that among the acts passed on the first day of meeting was this: "That the Barons, according to ane old Act of Parliament, made in James's tyme the first, the year of God 1427, shall have free voice in Parliament. This Acte passed without aine contradiction as well of the Bishopes, Papysts, as all other present."[29] Randolph has not merely recorded the fact: he has given us the key to the situation. It would not have surprised him if the "Papysts" had objected to the proposal. The smaller barons were notoriously attached to the reforming party, and the reassertion of their right was a precaution taken to secure an overwhelming preponderance for the new movement. In 1567, Parliament was again divided. There was a "queen's party" and a "king's party." It is not improbable that the experience of 1560 led the insurgent lords to enact that, because "the barons of this realm ought to have vote in Parliament as a part of the nobility," each sheriff was to be instructed to summon the barons of his shire "by open proclamation at the market cross of the head burgh of the same, to compear within the Tolbooth upon eight days' warning ... and there to choose one or two of the most qualified barons ... to be commissioners for the whole shire." Once again legislation was fruitless, and the fact confirms the suggestion that it was a mere party move. But it called attention to a constitutional grievance, and twenty years later the matter was taken up in earnest. It is not easy to believe that action was taken in 1585 purely out of love for constitutional principles. A keen religious contest was in progress, and the smaller barons were, as in 1560 and 1567, on the side of the General Assembly. One is therefore inclined to infer that the "article" which was presented to Parliament urging how "necessary it is that his highness and they be well and truly informed of the needs and causes pertaining to his loving subjects in all Estates, especially the commons of the Realm," originated in ecclesiastical quarters. It was decided to reaffirm the "gude and lovable" Act of 1427. The details of machinery need not detain us. There was to be an election of "two wise men being the king's freeholders resident indwellers of the shire of good rent," chosen by "all freeholders of the king under the degree of prelates and lords of Parliament," who have "forty shillings land in free tenandry of the king and their actual dwelling and residence within the same shire." The act was ratified two years later, when his Majesty had reached "his lawful and perfect age of twenty-one years complete"; and it was added that the shires should be taxed to pay the expenses of their commissioners. No other alteration of principle took place until the Reform Act of 1832. In the reign of William and Mary the proportion of members to each shire was readjusted. But the Acts of 1585 and 1587, succeeding where the Act of 1427 had failed, detached the small barons from the greater freeholders and created a new "Estate" of the realm.
3. We have seen that down to the War of Independence there is no ground for believing that burgesses attended the great council of the kings. When the first Scottish "Parliament" met after the battle of Bannockburn, there was no indication that anything had happened in the interval to change its constitution. In 1314, and again in 1315, in 1318 and in 1320, we read of "full parliaments," the members of which are described in the old terms. At none of these meetings, so far as we know, was any momentary business transacted. But in 1326 King Robert summoned to meet him, at the Abbey of Cambuskenneth, associated with the victory of Wallace, and almost within sight of the field of Bannockburn, a parliament which was to settle the pecuniary relationships of king and people, and reimburse the king for the expenses of the war. To this parliament King Robert called not only noblemen, but "burgesses and all other free tenants of the kingdom." To the agreement then made, the seals of the burghs were appended. To what circumstances are we to attribute this development? It is, of course, natural that the royal burghs should come to be represented in a council of tenants-in-chief, as the "barons of London" and the imperial cities found their way into the Parliament of England and the Diet of the Empire. But the institutions of the Courts of the Four Burghs and of the Hanse Burghs offered an alternative line along which the development of burghal representation might have gone; and, in point of fact, the Convention of Royal Burghs did continue to possess and to exercise certain powers which appear to us proper to Parliament. The meeting at Cambuskenneth in 1326 is thus, to some extent, a critical point, and its importance is increased by the king's attempts to render burghs dependent on great nobles instead of upon the Crown.[30] These attempts were rendered illegal by Parliament in the reign of David II; but plainly, if they had not possessed, at this juncture, a voice in Parliament, the history of the burghs might have been widely different.
We may hazard a guess why King Robert did not negotiate with the burghs in the accustomed way. In 1305, when the chances of the independence of Scotland seemed very small, Edward held a parliament in London, which was attended by Scots representatives—by whom elected or chosen, we do not know. Robert the Bruce was also present, as an English lord. Possibly he found his model in the burgesses who thronged the English Parliament. It must also be recollected that, since the end of the war, King Robert had entered into a new relation with a burgh. Hitherto the Scottish kings had spoken of the burgesses rather than of the burgh. But, in 1319, Robert I gave a charter to the city of Aberdeen, in which he recognized it as a corporation, and granted it certain possessions, on condition of an annual payment, assessed by the burgh itself.[31] Edinburgh received a similar charter in 1329.
It is generally assumed that the presence of burgesses at Cambuskenneth in 1326 was an admission of their right to a share in the work of Parliament. "From henceforth," says Professor Innes, "undoubtedly, the representatives of the burghs formed the Third Estate, and an essential part of all parliaments and general councils."[32] The records, as we possess them, do not bear this out. It is true that the "parliaments" of Edward Balliol refer to the "assent des Prelatz Countes Barouns Chivalers et toux autres assemblez":[33] but this is merely a return to the older nomenclature. In 1339, Robert the Steward of Scotland speaks of the prelates and magnates of the kingdom alone as constituting a "full parliament." Two years later, a "full parliament" was held at Aberdeen, and although part of its business was to grant a charter to the burgh, only bishops, lords, and freeholders ("milites") were present. Similarly, in 1358 and 1359, we have no record of the presence of burgesses. The Parliament of 1363 speaks of the "three estates," but we know that there were present only the "prelati et proceres" of the realm.[34] But in 1356-57, and again in 1363, councils were held at which burgesses were present. On both these occasions the subject under discussion was the raising of money. It is probable that the constitutional theory at this date was that the burghs were to be consulted only on pecuniary matters. In confirmation of this view, we may point to the wording of the record of the Council of 1363. It tells us that the lords were present as usual, and that there were also summoned others "who are wont to be called to a council of this kind," i.e. a money council. Three years later, money was again needed. A convention was held at Holyrood in May 1366, to consider the terms of peace with England, which involved considerable pecuniary adjustment. The nobles decided to call a parliament and to summon the common people "who will not be present and will not promise to be present."[35] Bishops, abbots, and lords were called "in the accustomed manner," and there attended "from every burgh certain burgesses, who were cited for this purpose." They were represented in 1367, in June 1368, possibly in March 1368-69, and certainly in February 1369-70 and March 1371-72. It is possible that from the end of the fourteenth century the burgesses took their place in every parliament; but there are many instances between 1372 and 1455 in which we cannot trace their presence. From 1455 onwards they are found in every parliament and on the regular committees.[36]
It remains, in this connection, to determine how far the burgess members were elective or representative in the strict sense of the word. In the early references to the presence of burgesses in Parliament, we have no hint of any idea of a definite representation constituted by a form of election. To the Cambuskenneth Parliament of 1326 the burgesses seem to have come as other free tenants came. There attended "burgesses and all other free tenants of the kingdom." We know nothing of the conditions of attendance of the burgesses in 1356-57; and in 1366, as we have seen, "certain burgesses" were present, who had been specially summoned. In neither case, nor anywhere else, do we find any suggestion that the burghs chose representatives. We are brought, therefore, to the year 1367. In that year, when the Estates met, it was found that so many burgesses attended that their presence would interfere with harvesting operations, and, accordingly, "certain persons were elected to hold parliament, and permission was given to the rest to go home, because of the harvest." This, then, is the first record of the election of a committee to do the work of Parliament. The wording of the record is important. "On the part of the burgesses there were elected: from Edinburgh, Adam de Bronhill and Andro Bec; from Aberdeen, William of Leth and Johne Crab; from Perth, Johne Gill and Johne of Petscoty; from Dundee, William of Harden and William of Inverpeffer," and so forth. Burgesses were present in considerable numbers—at all events, in such numbers that two members could be chosen (electi) to represent each town. Similarly, in the next instance (1369), "it did not seem fitting that the whole community should be kept in attendance," and two committees were appointed, one for the general work of legislation, and the other to conduct the judicial business which belonged to the Estates. It seems not improbable that we have here a system according to which any burgess that chose might attend. If so, these elections to committees were really the earliest efforts at parliamentary representation in Scotland.[37] In short, the evidence, positive and negative, warrants, perhaps, the conjecture that, at the first, the burghs chose no representatives, but that such burgesses as cared to attend were the representatives of the burgh; that the appointment of committees formed really the germ of the elective idea, by necessitating a choice after Parliament met; and that, in course of time, it became apparent that the election might as well be made at home as in Edinburgh or at Scone.[38] The earliest records of parliamentary elections that we possess are statements, in burgh accounts, of payments made to commissioners to the Estates. It is significant that they date from the beginning of the fifteenth century, by which time the device of appointing committees had been frequently employed.
There are two other points in the membership of the Scottish Parliament which must deserve mention. The great officers of state[39] possessed ex officio seats in Parliament. It was an arrangement which had much to commend it; but there was a tendency for it to become burdensome; and in 1617 an act was passed prohibiting more than eight officers of state from possessing official seats in Parliament. It was customary also, from an early period, for the eldest sons of the great nobles to be present at meetings of the Estates.[40] They were in no sense members of Parliament. They had no right either of speaking or of voting. But had circumstances been more favourable to the growth of the power of Parliament, the conception of such a training for legislative responsibility might have been rich in practical results.
The composition of the Scottish Estates offers a tempting parallel to that of the German Diet after the Great Interregnum. Constitutional development ran in the two countries on somewhat similar lines: the position of the king of Scotland was often analogous to the place held by the emperor; nobles and prelates correspond to the temporal and ecclesiastical princes, and the royal burghs to the free cities, while in neither assembly were there any members like the English "knights of the shire." But there does not seem to be any ground for regarding the likeness as more than a coincidence, or for disputing the "orthodox" theory which declines to admit the existence of German influence over Scotland before the sixteenth century. Had we any definite constitutional life to record, it would be of interest to discover in what relation the three Estates stood to each other. But as to this we have almost no evidence. The first instance of the occurrence of the term the "three Estates" (tres communitates) in the acts belongs to the year 1357.[41] In mediæval times, the three Estates are the clergy, barons, and burgesses. When James I attempted to introduce commissioners from shires into Parliament,[42] he really contemplated the creation of an additional Estate, and after his scheme was actually carried out by James VI[43] there were three or four Estates according as the clergy were represented or not.[44] The word "Estates" is not specially appropriate, and the Estates of the realm of Scotland must not be confused with the English use of the word.
It has been surmised that the clergy and the burgesses acted with the Crown, in opposition to the nobles; but to state such a formula is to read English ideas into Scottish history. The historian can point to scarcely an instance where the nobles were definitely ranged in a body against the king. If nobles were the most prominent opponents of the Crown, nobles were also its most prominent supporters, although the personnel of both parties constantly varied. The bishops, as we have seen, were often dependent upon the great lords. As to the burgesses, it seems to be clear that the three or four of them who were included among the Lords of the Articles acted with the party in power. Only thus can we explain the fact that alike when the Douglases and the Boyds and the Hamiltons ruled the land the administrative enactments of Parliament progressed without any difficulty. These acts were frequently passed "by request of the burgesses," and they were obeyed only in the towns. The people of the towns had small reason to oppose either noble or king. The hand of the great lord lay heavy on the inhabitants of the country, but the burghs knew no such pressure.
4. Scarcely less important than the membership of a parliamentary body is the method of its deliberation. In this respect the Scottish Parliament was widely different from that which sat at Westminster. The three Estates met in one chamber. In the centre was the seat occupied by the sovereign, when he was present in person; in later times, by his commissioner. On the left hand sat the noblemen and barons; on the right, the prelates and the representatives of burghs. The Estates voted together. The president was, in general, the lord chancellor. He was, at the first, nominated by the king for the purpose, but he gradually came to hold the position ex officio. The absence of a speaker for the Commons deprived them of much of the power possessed by the third Estate in England. The Act of 1427, to which we have already referred, included among its provisions the creation of this office; but, like the rest of the act, this clause was not enforced, and it was never resuscitated. The theory of the three Estates was practically complete by the year 1400, although we have occasional instances of legislation without this formality. A parliament of James II, for example, made a statute regarding merchants "with consent of the clergy and barons alone," and in 1449, on a question of heirship, the prelates and burgesses were "removed" before the decision was made.
The relations of the Estates to the Crown were in an unsatisfactory condition. In times of stress the Parliament had no hesitation in appointing its own president. Randolph, in his letter to Cecil,[45] mentions that, in 1560, Lethington was "chosen harangue-maker." In 1640, again, Robert, Lord Burley, was elected "president of this court and session of Parliament, in the absence of the king's commissioner." In strict legal theory both of these meetings were probably invalid. It is difficult to understand how far the royal assent was necessary to the validity of acts. In ordinary circumstances, a necessary condition of a valid parliament was the presence of the regalia, and the king gave his approval by touching the bills or "articles" with the sceptre, whereupon they became acts of parliament. The want of constitutional life prevented the question from arising in a definitely constitutional manner. When the difficulty did appear, it was, like the similar problem of the presidency, settled without any debate; and we have no instance except in times of revolution. There is an interesting passage in Knox's History[46] in which he discusses the matter in connection with the great Parliament of 1560, which established the Protestant faith, and which did not receive the royal consent till it was ratified in 1567, when the Earl of Murray had assumed the regency for the infant whom he had made James VI. The historian tells us that Francis and Mary withheld their consent. "But that we litill regarded or yit do regarde; for all that we did was rather to schaw our debtfull obedience, than to beg of thame any strength to our Religion." The point is thus contemptuously dismissed, but Knox considered it necessary to give more attention to a possible objection that the Parliament was not legally summoned in the first instance. "But somewhat most we answer to suche as since hes whispered, that it was bot a pretended parliament." He solved the matter by a legal quibble, and proceeded to affirm, in addition, that it was the only free parliament which had been held: "In it, the votes of men were free and gevin of conscience; in otheris thai war bought or gevin at the devotioun of the prince." Such sentiments as these can scarcely be said to represent any advance in constitutionalism. We may place alongside of them the views of King James VI, as he expressed them to his English Parliament in 1607.[47]
For here I must note unto you the difference of the Parliaments in these two kingdomes, for there they must not speak without the Chancellor's leave, and if any man doe propound or utter any seditious or uncomely speeches, he is straight interrupted and silenced by the Chancellor's authoritie.... About a twentie dayes or such a time before the Parliament, Proclamation is made throughout the kingdom, to deliver into the King's Clearke of Register all Bills to be exhibited that Session before a certain day. Then are they brought unto the king, and perused and considered by him, and only such as I allowe of are put into the Chancellor's hand to be propounded to the Parliament. Besides, when they have passed them for lawes, they are presented unto me,[48] and I with my Scepter put into my hand, by the Chancellor, must say: "I ratifie and approve all things done in this present Parliament." And if there bee anything that I dislike, they rase it out before. If this may bee called a negative voyce, then I have one, I am sure, in this Parliament.
The contradictions find, as usual, their reconciliation in fact: King James described the forms normally used; Knox regarded them as not in any degree essential to the validity of Parliament. The rules of procedure certainly tended to a despotic monarchism. But they owed their existence simply to custom, and could not be regarded with any peculiar reverence, when the popular party was uppermost. There had never been any definite settlement. They governed who had the power; they kept the forms who could.
5. The most characteristic portion of the procedure of the Scottish Parliament was the devolution of the work of legislation upon committees. The origin of the committee which became famous under the title of the Lords of the Articles is one of the standing puzzles of Scottish history. The date of its first appearance is well known, but how or wherefore parliamentary procedure took this peculiar form has been a standing problem.
The first instance of the appointment of a committee (1367) has been already quoted. The record for that year mentions that certain persons were elected by the Estates to hold the Parliament, and leave was given to the rest to go home, on account of the harvest.[49] As we have seen, burgesses found a place on the committee. The next Parliament met in June, 1368, and it contained burgesses among its members, but there is no mention of a committee. In March 1368-69, certain persons were again elected to hold Parliament,[50] and the reason for allowing the rest to go home is stated to be the political and economic difficulties of the time. On this occasion burgesses do not appear on the list of the committee, and we have no definite assurance of their presence. In February 1369-70 we know that burgesses were present,[51] and we are told that when Parliament met it did not seem expedient that the whole "communitas" should take part in the business ("universalis communitas ad deliberationem huiusmodi intenderet seu eciam expectaret"), and two committees were appointed—one to deal with general business and the other with matters connected with the administration of justice.
At this point it may be well to state the kind of business transacted at these various parliaments. In 1367 financial matters formed the most important portion of the business of Parliament, and we are therefore prepared to find burgesses on the committee. In March 1368-69, when we have no assurance that burgesses were present, the most important item of business was the pacification of the Highlands; but an enactment was made which was of special interest to the burghs, for Lanark and Linlithgow were given places in the Court of the Four Burghs, instead of Berwick and Roxburgh, now held by "our adversaries the English." In 1369, when burgesses were elected to the Committee for Justice, that committee had to deal with a dispute between the town of St. Andrews and the guild of Cupar, while the committee for general business, on which they do not appear, dealt with the question of the king's debts, taxation, police, and the war with England. There is little in all this to give us any guidance as to the origin of committees. The facts, so far, seem equally compatible with the unwillingness of burgesses to attend, of which the nobles had complained in 1366, and with an attempt on the part of the nobles to reduce the burgess element and to monopolize the efficient power of Parliament.
The subsequent history of these committees proves that, whatever was their origin, they did become an instrument in the hands of cliques of nobles. The next instance is in March 1371-72, when the precedent of 1369 was deliberately followed,[52] and two committees were again elected—one for justice, and the other to treat and deliberate upon special business as a preliminary to its being brought before the great council.[53] It is simply stated that leave was given to the rest to go away. There are no lists of members of either committee, nor is there any record that the "special business" was ever submitted to a parliament. The statutes promulgated by the committee bear that they have been made by the consent of the three Estates, or by persons elected in the same parliament to transact business.[54] An oath to observe the statutes was taken after they were passed, and it is remarkable that only the barons are mentioned as taking it. This is suggestive of the absence of burgesses from the General Committee, in accordance with the precedent of 1369, and the very first clause[55] in the recital of the actions of the General Committee gives some indication that it was desired to exclude certain persons from it. It was ordained that no one who had been elected a member of the committee should bring to its meetings anyone not so elected, except a member of the Privy Council. The business included an act which is summarized by an assertion that the commands of the king are not to be obeyed in preference to the law of the land ("Mandata Regis non exequenda contra statuta vel formam iuris"). The weakness of Robert II, already an old man, and the general political history of the time, render it impossible to accept this as a constitutional claim, and the overwhelming probability is that Parliament was, as so often afterwards, in the hands of a small clique of nobles, who used it for their own purposes. Possibly, the barons who were really responsible for the misgovernment of the country, wished to avoid meeting, in the committee, anyone who might be bold enough to draw attention to the real facts of the case. At all events there must have been some reason for following the precedent of 1369 instead of that of 1367, and thus excluding the burgess element.
Between the year 1371 and the return of James I from exile we have no information regarding Parliament. There are references to the three Estates in 1384, and again in 1398; but we are without any hint of the method of conducting business, and almost the only records that have come down to us are charters. In 1424 the old phraseology reappears: Certain persons were elected to decide upon the articles submitted by the king ("Electi fuerunt certi personae ad articulos datos per dominum regem determinandos"). This is the first recorded instance of the term "Articles," by which the committee was to be known. In March 1425-26, there is no record of any such committee. In March 1425-26, in May 1426, and in September 1426, we find committees which are said to be elected by the whole counsel of the three Estates. In July 1427, in March 1427-28, in July 1428, in April 1429, in March 1429-30, and in April 1432, we have again no record of their existence. At a parliament held at Perth in October 1431, a committee was appointed for special police and judicial purposes, and it met in May 1432 and passed certain acts. In March 1433, we read of no committee; in October 1434, only of a committee for justice, which included burgess members; and in 1436, of no committee. From the second year of the active reign of James I to his death we have, then, no trace of the General Committee of the Articles.
Between the murder of James I, in February 1436-37, and the fall of the house of Douglas, in February 1451-52, there are records of several meetings of Parliament, but there is rarely any evidence of the presence of burgesses at all. In connection with the coronation of James II, there is a formal document, of uncertain date, which revokes grants of land made by James I without consent of the three Estates, and commissioners of burghs are mentioned as being present at this "general council." The revocation is of political importance, and has no real constitutional significance. When Parliament met, in March 1437-38, the three Estates are mentioned, but only nobles and barons and freeholders went to Holyrood to crown the young king.[56] These are just the formal occasions on which it was desirable to have the unquestionable legal authority of the "three Estates," and burgesses may have been really there, though it is strange that they were not present at the ceremony in the Abbey. There is no trace of their presence till 1449, and, in their absence (if absent they were), we find no hint of the existence of committees. They were present at the Parliament which met in January 1449-50,[57] when the young James II first asserted himself by procuring the forfeiture of the Livingstones. It is equally significant that committees were not elected on this occasion; it is becoming evident that the device of the Articles was employed, not in every case when burgesses were present, but only when their aid was not desired by the predominant party in Parliament. During the final struggle with Douglas there is again no reference to burgesses, but in August 1452, when the king had defeated the great house, we find burgesses represented in Parliament, and there is again no mention of the Articles. In August 1455 the dress of burgess members is regulated by statute, and their attendance is regarded as normal. During the personal rule of James II, which continued till his death in 1460, burgesses are constantly represented, and the only committees of which we read are for justice alone, to which burgess members were elected.
During the first few years of the minority of James III the policy of the late king was continued under the strong hand of Bishop Kennedy, and it is not till after his death, in 1465, that the Lords of the Articles reappear. In 1467, Lords of the Articles were appointed, and thenceforth their power and importance greatly increased. In 1469, they were empowered to report, not to the whole Parliament, but to a committee constituted on the analogy of the Lords of the Articles themselves, "with power committed by the whol Estates ... to advise, commune, and conclude." Two years later the membership of this plenipotentiary committee became almost identical with that of the Lords of the Articles, who thus, practically, received power to report to themselves and to ratify their own conclusions "upon all matters concerning the welfare of our Sovereign lord ... and the common good of the realm." "Our Sovereign lord" was, at the time, a captive in the hands, at first of the Boyds, and afterwards of the Hamiltons, and the rapid development of the powers of the Lords of the Articles is explained by the desire to exclude any adherents of the opposite faction from voice or vote in Parliament, and, as such, it continued to be employed.[58]
On a general review of the evidence several points are clear. The device of superseding Parliament by a committee was employed for the first time under a weak king, and precisely at the moment when burgesses were first appearing as an integral part of Parliament. After it was elaborated in 1369, the method continued to be employed on every occasion on which burgesses were present, and, so far as we know, only when burgesses were present, till the return of James I from England; and its usual result was to exclude the burgess element from the effective work of Parliament. From the date when James I had established his power to the time of his murder, in 1436-37, burgesses were regularly present, and there were no committees, except for judicial purposes, and on these burgesses were represented. The ordinary business of Parliament was transacted by the three Estates meeting in their full numbers. Between the death of James I and the fall of the house of Douglas, in 1451-52, we are again uncertain as to the presence of burgesses in Parliament, and there were no Lords of the Articles, so far as can be ascertained. The one occasion on which we know that burgesses took a share in the work of Parliament was in January 1449-50, when the young James II first asserted himself by procuring the forfeiture of the Livingstones, and here, as under the strong rule of James I, the presence of burgesses is no longer accompanied by the existence of the committees which occupy so prominent a place when burgesses are present and the barons are in power. So, again, after the king had defeated the great House, and had begun to rule in person, we find burgesses regularly present in Parliament, and the only committee was the judicial one, on which they find a place. During the first few years of the minority of James III the policy of the late king was continued by Bishop Kennedy, and it is not till after his death that the Lords of the Articles reappear. During the years of intrigue and faction which followed the death of Kennedy in 1465, the Committee of the Articles was developed and established as a normal part of parliamentary procedure.
The invariable correspondence between the presence of burgesses in Parliament and the use or disuse of the system of committees, according as the king was weak or powerful, suggests as a possible explanation that the origin of the Committee of the Articles may be traced to an attempt of the barons to exclude the burgesses from Parliament. This view is confirmed to some extent by the fact that in 1371-72, within two years of the first employment of the device, the committee for the general business of Parliament seems to have been used for the purpose of excluding certain persons, while, both in 1369 and in 1371-72, burgesses were present in Parliament and were not elected to the General Committee. It was, further, only in this indirect way that Parliament could control the number of burgess members, for there is no evidence of the passing of any act dealing with burgess representation, and, as late as 1619, the Convention of Royal Burghs[59] ordered that every burgh, except Edinburgh, should send only one, instead of two, members to Parliament, and the resolution was carried into effect without even the formality of consulting the Estates. It cannot, however, be said that the evidence excludes the alternative explanation that these committees originated simply in the unwillingness of the burgesses to attend Parliament, and were afterwards employed by the barons for purposes of faction. But it is difficult to reconcile this view with the fact of the appearance of burgesses, in 1367, in such numbers that a choice of two members from each town could be made from among them, and with the instances of their retention for judicial purposes only, as well as with the concomitance, just pointed out, of the presence of burgesses and the election of Lords of the Articles.
The next development in the history of the General Committee belongs to the year 1535, when King James V dispensed with the cumbrous device of two committees, and the Lords of the Articles entirely superseded the three Estates. As the Crown chanced to be strong, the committee was not allowed to deal with "all matters" as in the days when the king was weak, but only with such matters as it might "please his grace to lay before them," and King James reserved to himself the power of summoning all his prelates and barons if he should so wish. The new scheme was only for occasional use,[60] but it familiarized people with the all-sufficiency of the Lords of the Articles, and during the next reign Parliament ratified, without comment and as a matter of form, what they had done. Randolph, the English ambassador, has preserved for us a record of the proceedings in 1563.[61]
Their Parliament here has begun. On the 26th ulto. the Queen, accompanied with all her nobles and above thirty picked ladies, came to the Parliament House, her robes upon her back, and a rich crown upon her head. The Duke [Chatelhérault] next before her with the regal crown, the Earl of Carlyle the sceptre, and the Lord of Murray the sword. She made an oration to her people.... The Lords of the Articles are chosen, and sit daily at the Court, where ordinarily the Queen is present, in debating all matters. Upon Friday next, she comes again to the Parliament House to confirm such Acts as are concluded upon, and to prorogue the Parliament.
During the early part of the reign of Charles I, and between the Restoration and the Revolution of 1689, this was the normal procedure. The Parliament met in full only on the first and the last days of its meeting. It was of small value that every liege had free access to the Lords of the Articles, to lay his complaints before them, but even that privilege seems to have been occasionally doubtful.[62]
The importance of the Lords of the Articles clearly depended upon the method of their election. It has been supposed that, at first, each Estate elected its own representatives. But the non-appearance of burgesses on the General Committee in 1369 is, perhaps, an indication to the contrary. In 1524, the spiritual lords were chosen by the temporal lords. We know this only from certain protests which were made, and it is not easy to draw any inference from it.[63] Randolph,[64] to whom we owe so much of our information regarding Scottish affairs in the latter half of the sixteenth century, described to Cecil the method in vogue in 1560. His words imply that it was the ordinary custom. "The lords proceeded immediately hereupon to the chusing of the Lords of the Articles. The order is that the lords spiritual chuse the temporal, and the temporal the spiritual, and the burgesses their own." From 1592 to 1609 the selection is said to be made by "the whole Estates"—whether collectively or independently is not stated. In 1606, 1607, and 1609, King James nominated the members who were elected, and in 1612 he devised a very characteristic arrangement which, in part, reverted to the method described by Randolph. There were at this date very few prelates, and they were all his own creatures.[65] The lords temporal, therefore, could not but choose lords spiritual agreeable to the king, and they, in turn, could select from the nobles men as obsequious as themselves. The representatives of the prelates and nobles must select suitable men from the Third Estate. Such was the royal scheme. We hear of it first in 1612.[66] We are fortunate enough to possess an account of the "Ordour and Progres of the Parlement, October 1612," from a manuscript in the handwriting of Sir Thomas Hamilton, the secretary.[67] When the Estates had met, and had listened to a sermon by the archbishop of Glasgow and a speech from the king's commissioner, the prelates and noblemen were instructed to retire, to choose the Lords of the Articles. The secretary intimated privately to the lords temporal the names of the prelates whom the king wished to be chosen. They "debaited the mater verie preciselie," having first dismissed the secretary, "and after many discourses of the necessitie of the mentenance of thair privilegis and libertie, be pluralitie of votes, changed so many of the roll of the prelates as they had men to make chainge of." The bishops, on the other hand, received "the roll of the noblemen whom his Maiestie recommended to be upon the Articles, whilk thay presentlie obeyed be thair electioun." When the prelates and noblemen met to choose the commissioners of barons and burgesses, both maintained their attitude, "and maid sum chainge, so far as the noblemen could." This method did not become fixed till 1633, but it represents more or less accurately the condition of matters between 1612 and 1638.
The usurpation of all parliamentary power was, of course, bitterly resented. As early as 1524 we have evidence of opposition; but the dispute of that year was rather personal than political, and not in any sense constitutional. The first constitutional protest dates from the year 1633.[68] But even this is rather a remonstrance against the decisions of the Lords of the Articles than against their election and procedure, although there are references to these. Burton guardedly describes the incident as containing "distinct vestiges of a constitutional parliamentary opposition."[69] In 1640, Parliament, no longer under royal control, ordained that the Lords of the Articles should be "ane equall number of all Estates, and ... chosen by the haill bodie of the Estates promiscououslie and togidder, and not separatlie, by ilk ane of the thrie Estatis apairt." In 1663, by command of the king the older method was restored, and it continued in force till the Revolution. The parliament of 1690 abolished the Lords of the Articles, and declared that "the estates may appoint such Committees as they choose, there being an equal number of each estate." Such is the history of that important body.[70]
The history of the Judicial Committee has been often told, and need not detain us long. We have already seen the first appointment of a commission to undertake the judicial work of Parliament. From 1368 to 1532 this cumbrous method was maintained, although the membership of the committee of the "Lords Auditors" was frequently altered, and the acts of parliament contain many references to their sitting. James I introduced a modification into the system. In 1425 the lord chancellor and "sundry discreet persons" of the Estates received power to "examine, conclude, and finally determine" all complaints. In the next reign the judgment of these "lords of session" was declared to be as decisive as that of the Lords Auditors themselves. In 1503 the judicial work of the King's Secret Council was organized and a co-ordinate court was instituted, chosen by the king, and endowed with full powers, so that there were three courts of justice to deal with the numberless grievances of the lieges. The judicial system took its final shape from France. In 1532 King James V proposed "to institute ane college of cunning and wise men baith of spiritual and temporale estate ... to sitt and decyde upon all actiounis civile." The Estates thought this "wele consavit"; and accordingly the cunning and wise men were created into a College of Justice, with a president at its head. It was sanctioned by the Pope, and confirmed by Parliament in 1540, when the Estates granted "to the President, Vice-President, and the Senators power to make such acts, statutes, and ordinances, as they shall think expedient for ordering of process and hasty expedition of Justice." It then consisted of a president, with seven spiritual and seven temporal lords of session,[71] and, with slight modifications, the Court of Session continues to decide all civil cases in Scotland. It represents the Lords Auditors or the original committee of the Estates to which judicial powers were entrusted, and not the judicial work of the Secret Council. So strongly was it felt that the College of Justice was a committee of Estates, that, at first, it did not sit during the meeting of Parliament, which the Lords of Session were expected to attend. Exceptions to the rule occur frequently, and as early as 1538. The High Court of Justiciary was instituted by James VI in 1587, to supersede the old jurisdiction of the justiciar, and was remodelled in the reign of Charles II.
6. We know, from various sources, something of the pomp and circumstance which accompanied a meeting of Parliament. The dress of the members was strictly prescribed,[72] and formed often the most expensive item[73] in a member's account-book. The Stewart sovereigns, with scarcely an exception, loved display, and the meeting of the three Estates afforded an unusually good opportunity. Queen Mary's personal beauty gave an additional splendour to the meeting of Parliament in 1563, and as she rode in procession the populace of the capital could not restrain their enthusiasm, and hailed her with shouts of applause, "God save that sweet face!"[74] Her son took strong measures to prevent what he termed the decay of the majesty of his parliament. In 1600 he enjoined that all members "rydand on horseback, clad with fut mantellis, and utheris abuilzementis and clething requisit for the honour of the present actioun, repair, attend, and accompany his Majesty" to and from Holyrood and the Tolbooth, "and that nane schaw themselves unhorsit or vantand fut mantellis under the pane of tinsell of thair vot and place."[75] The procession was marshalled in reverse order of precedence. First came the commissioners of burghs in their black gowns. They were followed by the commissioners of barons, members of the privy council, and officers of state not being lords. The clergy came next, priors, bishops, and abbots, being alike attired in silk gowns, and immediately after them, lords and earls with their mantles of velvet. Trumpeters preceded pursuivants and heralds, and the Lord-Lyon-King-at-Arms in his gorgeous apparel, walking "him alane," immediately in front of the honours of Scotland. Behind his sword, sceptre, and crown, rode the king himself, between the captain of his guard and the constable of the kingdom. The chancellor and the great chamberlain were in immediate attendance upon their master. Last of all came the marquesses and the royal household. After the Reformation the work of Parliament was invariably preceded by a sermon. When the full Parliament met again to ratify the proceedings of the Lords of the Articles, the "Lyon Herauld" solemnly presented the sceptre to the king, who touched the articles. Prayers followed, and the House was dissolved. It was small wonder that the citizens of Edinburgh felt some regret when the glory of the Parliament House departed.[76]