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.