Part 4

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.

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]