The Scottish Parliament Before the Union of the Crowns

by Robert S. Rait

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]