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.