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 Scottish Parliament Before the Union of the Crowns · 第 3 / 9 段