Part 3

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.

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]