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.