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Early Tenures Bruce charter Dundas charter Charter to the Steward
The Stewarts' charters Legal fiction that all property belonged to
the Crown First Stewart charters Early tenures The Baron's court
Suit, and service Composition of the king's court National Council;
its composition in early times Communitas regni Taxes, how imposed
of old Parliament, when first so called Burgesses in Parliament
Grant of aid Conditions of the grant Committees of Parliament
Committee of Articles Judicial committee Institution of Court of
Session The Lords of the Articles Representation of small
freeholders Representation of burghs Officers of state with seat in
Parliament All sat together Defects of the Scotch Parliament.
There is something
melancholy in considering the constitution of an ancient and independent
kingdom, when it has been absorbed in a greater. School our minds to it as
we will, sum up all the benefits of the Union, and dwell with all truth
upon the ancient miseries of war between the sister nations, and the
degrading and demoralizing of the later provincial government of our end
of the island, no Scotchman can look back without some sadness to the
independence of his country so dearly won, and of which we still idly
cherish the memory.
A different feeling at
first weighs upon the historical inquirer. The origin of our constitution,
our ancient parliamentary usages, can no longer be appealed to as
precedents, or quoted authoritatively as rules of practice. They are in
this view mere matter of antiquarian curiosity, or to be used only as
illustrations by analogy. The machinery of our system of government is of
a different origin, and has reference to the history of another people.
But when we look deeper, we come to regard those ancient foundations of
our political system as a part, and an important one, of that which has
formed our national habits and character, which separate us so widely from
the rest of the world, and distinguish us somewhat even from England.
In a feudal kingdom the constitution of
legislation and government is intimately connected with the tenures of
estates, and we therefore look with much interest to the earliest
specimens of charters or title-deeds of lands.
I mentioned before that Scotland has no
charters nor writings of any description so early as the reign of Malcolm
Canmore. In the reigns of his sons who preceded David I., we have a few
grants to religious houses, but none to individuals or laymen. These first
appear in the reign of David, but very few of that reign have been
preserved to our time.
It may perhaps be too rash to conclude that
there were no written titles of land at an earlier period of Scotch
history, but, at any rate, we must abandon all discussion or speculation
as to their form and character.
When we first become acquainted with the
charters or writs by which estates and lands were held and conveyed in
Scotland, they exceedingly resemble, I may say they entirely coincide with
those of a parallel date in England. They consist of a grant by the king,
or some lord of the soil, to an individual and his heirs of certain lands
described, and they specify a reddendo, or a certain amount of military
service. There is nothing to distinguish these early charters from those
of Norman England, or, indeed, of any strictly feudal kingdom. They are
distinguished from modern conveyancing by nothing so much as their
brevity. Take first one of the very few extant charters of David I. to a
lay-man: "David, by
the grace of God King of Scots, to all his barons and his men and friends,
French and English, greeting: Know that I have given and granted to Robert
de Brus, Estrahanent (Strath Annan) and all from the bounds of Dunegal of
Strath Nith to the bounds of Randulph Meschines. And I will and grant that
he have and hold that land and its castle well and honourably with all its
customs, to wit with all those customs which Randulph Meschin ever held in
Carduilh and in his land in Cumberland, on that day in which he had them
best and freest. Before these witnesses, Eustace fitz John and Hugh de
Morvil, and Alan de Perci and William de Sumervill, and Berengar Engain
and Randulph de Sulis, and William de Morvil and Hervi fitz Warin, and
Aedmund the chamberlain, at Scone." [Original charter preserved in the
British Museum.]
Here, again, is a charter of the whole estate of Dundas, near Edinburgh,
granted by a subject I . believe nearly as old as the reign of David.
The granter is Waldev, son of Gospatric, Earl of Dunbar or March. The
original charter, still preserved, is of course in Latin :
"Waldev, son of Cospatric, to all his good men
and all friends present and to come, greeting: Know that I have given and
granted, and by this my charter confirmed to Helias son of Huctred, Dundas,
for half the service of a knight (militis), to be held by him and his
heirs, of me and my heirs in fee and heritage, in moors, in waters, in
ponds, in mills, in meadows, in pastures, with all their right bounds and
pertinents. I grant also, and will and command, that the foresaid Helias
have and hold that land as quietly, as freely and as honourably, as any
knight holds of a baron in the whole land of the King of Scots. Done
before these witnesses, John son of Orm, Waldev son of Baldwin, Robert of
St. Michael, Helias of Hadestanden, William of Copland, William of
Hellebot, Aldan the Steward, Gerard the knight, John of Gragin."
A more important charter of Malcolm IV. gives
us the same form and all the essentials of feudalism in a grant of the
sovereign :
"Malcolm, King of Scots, to bishops, abbots, earls and barons, justiciars,
sheriffs, bailies, and servants, Frenchmen and English, Scots and
Galwegians, clerks and laics, and to all men of his whole land, greeting:
Know that, after I received knighthood (postquam arma suscepi) I gave and
granted, and by this charter have confirmed to Walter fitz Alan, my
steward, Birchinside and Leggardswode, by their right bounds, to wit, as
fully and wholly as king David my grandfather held the lands in demesne. I
have given also to the foresaid Walter, Molle, by its right bounds and
with all its just pertinents; To have and to hold to him and his heirs, of
me and my heirs in fee and heritage, as freely and quietly, amply and
honourably, as any earl or baron in the kingdom of Scotland holds and
possesses any land of me: Doing for the said lands to me and my heirs the
service of one knight. Given in presence of these witnesses Ernald
bishop of St. Andrews, Herbert bishop of Glasgow, John abbot of Kelso,
William abbot of Melross, Osbert abbot of Jeddeworde, Walter, the
chancellor, William, the king's brother, Richard de Morevill, Gilbert de
Unframvill, Waldev, son of Earl Cospatric, Jordan Ridel, at Rokesburgh."
Some of the old MSS. which used to be cited in
court by the Scotch lawyers, before the great work of Stair had banished
such myths, have a capitular styled "The Laws of Malcolm M'Kenneth," which
commences thus "Here follow the laws of Malcolm M'Kenneth, the whilk was
maist victorious king over all the nations of England, Wales, Ireland, and
. Norway. And he gaif all the land of the kinrik of Scotland till his men,
and nocht held till himself but the kingis dignitie and the Mute hill in
the toun of Scone." Sir John Skene, the first editor of our old laws, sets
himself to prove that chapter to be the authentic enactment of Malcolm
II., who began to reign in 1004, drawing his proofs out of recent acts of
Parliament, corroborated by the historical authority of Hector Boece! It
is not necessary to controvert his assertion, and to prove that there
never can have been a time when all the land belonged to the Sovereign.
The story was introduced evidently to support a law fiction convenient
in itself, and the basis of our system of conveyancing that all property
flows from the Crown. Such was the form of conveyancing, undoubtedly, from
the earliest of our charter history; and it could not have been more
systematically feudal if the country had really been conquered, the
natives driven out or enslaved, and the invader, now sovereign, had
proceeded to partition the territory among his victorious army. That many
of those early charters which we still have of Malcolm IV. and "William
the Lion, were really new grants of lands fallen to the Crown by reason of
forfeiture or otherwise, we have every reason to believe; but many others
of them were, beyond all doubt, a mere formalizing of the tenure grants
according to the fashionable feudal manner, of property already held by
the grantee. Observe, for instance, the grant by Malcolm IV. to Walter
fitz Alan of the office of High Steward and lands which he had held under
David I. "Malcolm,
King of Scots, to bishops, abbots, earls, barons, justices, sheriffs,
bailies, servants, and all other good men of his whole land, clerks and
laics, French and English, Scots and Galwegians, present and future,
greeting: Be it known to you all that before I received knighthood (priusquam
arma suscepi) I granted, and by this charter have confirmed, to Walter
fitz Alan, my steward, and to his heirs in fee and heritage, the donation
which King David, my grandsire, gave to him, namely Renfrew and Passeleth
and Polloc and Talahec and Kerkert and the Drem and the Mutrene and
Eglisham and Lochinavche and Innerwick, with all pertinents of these
lands. And likewise, I gave to him in heritage, and have confirmed by this
charter, the office of my steward {meam senescalliam), to hold to him and
his heirs of me and my heirs freely, in fee and heritage, as well and as
amply as King David gave and granted to him his stewardship (senescalliam
swam), and as he himself best and most amply held it. Moreover, I myself
gave, and by this same charter have confirmed, to the same Walter in fee
and heritage, for the service which he did to King David and to myself,
Prethe as much as King David held in his own hand, and Inchenan and
Steintun and Hadestonden and Legardswode and Birchinsyde, and farther, in
every one of my burghs, and in every one of my demesne dwellings (dominica
gista), through my whole land, an entire toft to make him a residence
there, and with each toft twenty acres of land. Wherefore I will and
command that the same Walter and his heirs hold in fee and. heritage of me
and my heirs in chief all the fore-named subjects, both those which he has
by gift of King David and those which he has of my gift, with all their
pertinents and rights, and by the right bounds of all the foresaid lands,
freely and quietly, honourably and in peace, with sac and soc, with tol
and them and infangtheefe, in vils and shealings, in plains, in meadows,
in pastures, in moors, in waters, in mills, in fishings, in forests, in
wood and plain, in roads and paths, as any one of my barons most freely
and quietly holds his fief of me; Rendering to me and my heirs for that
fief, the service of five knights. Witnesses, Ernald bishop of St.
Andrews, Herbert bishop of Glasgow, John abbot of Kelso, William abbot of
Melros, Walter the chancellor, William and David the king's brothers, Earl
Gospatric, Earl Duncan, Richard de Morevil, Gilbert de Umphramvill, Robert
de Brus, Ralph de Sulis, Philip of Colevil, William of Sumervil, Hugh
Riddell, David Olifard, Valdev, son of Earl Gospatric, William de Morevil,
Baldwin de la Mar, Liolf son of Maccus. At the castle of Roxburgh, in the
feast of St. John the Baptist, the fifth year of our reign."
But I could not give you a better specimen of
one of those ancient simple conveyances than a charter of William the Lion
a grant to the ancient family of Seton. It conveys three great baronies
confers all baronial privileges fixes the reddendo at one knight's
service expresses the formal authentication of a goodly array of
witnessesand is comprised in seven short lines. The original is in
possession of the Earl of Eglinton and Winton.
Among the essentials of a feudal holding,
though not always expressed in our ancient charters, was that the vassal
should be bound to give suit and service in the court of his lord (facere
seclam et sequelam curica). In the court, so composed of all the vassals
of a baron the suitors or sectators of a barony were discussed the
affairs of the barony and the suitors, and there were tried all causes,
civil and criminal, of which the lord had jurisdiction by his tenure.
As by the feudal theory all land was held of
the Crown, every estate of land was represented by some one who was the
immediate vassal of the Sovereign: and of these Crown vassals was
originally formed the King's Court. Such at least was the constitutional
theory as early as we can trace any constitutional principle in Scotland.
The early Crown charters, however, which specify suits of court as part of
the vassal's obligation, for the most part limit it to the attendance and
service in the king's courts in the nearest shire, town, or royal
residence. It must indeed have been impossible and most undesirable to
assemble all the Crown vassals in such a council at once. The attendance,
in fact, in the king's court, seems to have consisted chiefly of a few
churchmen, the great officers of state, and a portion of the nobility and
great barons. A few
instances will show both the notion at the time, of the legal constitution
of the King's Court, and the actual members who attended it.
In 1184, William the Lion held a court at
Perth, of which the members are described in the record as, "the bishops,
abbots, priors, earls, barons, and other good men (probi homines) of his
land." In the same
king's reign, an assize or statute was made, which was sworn to be
observed by "the bishops, earls, barons, thanes, and whole community" {tola
communitas). So much
does this vary, however, that in following statutes, we find the style
run: "It is statute by the king, with counsel of his great men"
(magnates). "The king and the community of the kinrik has statute." There
was certainly, then, no means for the commons of the kingdom to express
their counsel or assent; and I think all that can be safely inferred from
such forms of expression is, that some memory perhaps remained of the old
Saxon, and, indeed, general Teutonic principle, which looked to the
assembly of the whole nation as the source of law and of all power.
Of the persons noted actually attending the
King's Courts, whether on legislative or judicial business, we may take at
random one or two instances.
Between 1190 and 1196, in a Court of King
William at Edinburgh, were present, the Bishops of Glasgow and Dunkeld,
Earl David the king's brother, the Earls of Fife and Stratherne, the High
Constable, two abbots, and ten barons. In 1208, on the octaves of the
apostles St. Peter and St. Paul, King William held a plein cour (plena
curia domini regis) at Selkirk, for the determination of an important
dispute between the House of Melrose and the Earl of Dunbar, at which were
present the King and Prince; Ralf Bishop of Doune in Ireland, who had
formerly been Abbot of Melros, and seems to have had an affection for his
old country; Bricius Bishop of Moray (he was a son of the family of
Douglas, and the first who raised into importance that afterwards
illustrious house); David Earl of Huntingdon, the king's brother; Eustace
de Vesci; William and Oliver, two of the king's chaplains; Robert de
Londin, the king's natural son; William de Boscho, Hugh de Prebenda, Adam
de Kingorn, Gilbert de Stirling, the king's clerks (an office of
importance and confidence, for several of these rose to be chancellors of
the kingdom); and the following barons Gervase of Avenel, David de
Lindesay, Hugh de Normanvil, William de Valoins, Philip de Moubray,
Ingelram de Balliol, David the Marshal, Robert de Mortimer, Patrick, son
of the Earl (of Dunbar), Patrick de Witham, Nes de Walghton, Roland de
Grenelaw, Roger de Merlai, Philip and William de Colevil, Thomas Fraser,
with the usual clerkly addition of "many others."
Such information as we have regarding the
individuals present in the national councils is not to be overlooked. In
1230, we find statutes which bear to be enacted by the advice and consent
of the magnates of the realm and of the whole community; but the list of
those present, which is preserved in several manuscripts, gives us no more
than the names of one bishop, two earls (one of them Justiciar of proper
Scotland), one prior, the Justiciar of Lothian, the High Steward, and one
other baron. In 1244 the attendance is somewhat larger two bishops,
three abbots, seven earls, of whom one is the High Constable, and eight
great barons, one of whom is the Chamberlain. In this assembly, the barons
seem to be identified with the "probihomines." In 1255 an important
national convention, which, however, from the circumstances in which it
met, excluded one great party of the nobles, numbered four bishops, four
abbots, four earls, and thirteen great barons. Many of these barons were
of equal importance and possessions with several of the earls. At the head
of the list are the Steward of Scotland and Robert de Bruce. The assembly
of nobles which acknowledged the Maiden of Norway as heir to the throne,
at Scone, on the 5th day of February 1288, consisted of thirteen earls and
twenty-four great knights and barons. Finally, the great convention of
Briggeham in 1289 was composed of the four guardians (two of whom were
bishops), of ten other bishops, twelve earls, twenty-three abbots, eleven
priors, and forty-eight barons. In none of these is there any mention of
representatives of burghs.
Whatever the communitas regni meant, it
certainly did not imply the presence of a class of burghers or burgh
representatives in Parliament. The Burghs, indeed, were already protected
by privileges, and several of them were of consequence enough to have been
entitled to the honour, or bound to the duty, of sharing in the national
councils. But long before the principle of representation was known in the
high court of Scotland or in England, the burghs of our country had
established their own council apart, . and sent their deputies to a
burgher Parliament where they framed laws for their own government.
The power to impose taxes is the first
criterion of what we consider the constitutional power of Parliament. I
have mentioned the ancient and ordinary sources of the revenue of the
kings of Scotland. When an emergency occurred requiring more extensive
supplies, they were obtained by means of an auxilium or "aid," raised from
the people. We have evidence of a national aid or tax imposed on Scotland
during the reign of Malcolm IV., but no indication of the authority by
which it was imposed. Its purpose was to defray the marriage and dowers of
the king's daughters a proper and established feudal burden due by the
vassals, and which may have been demanded from a court of vassals, as well
as from a parliamentary or legislative assembly. Half a century later,
King William held a great council, where he claimed from his magnates (optirmates)
an aid to enable him to pay his heavy debt to King John of England. The
magnates meaning, I think, the clergy and barons gave him 10,000
marks. The burghs, says our historian, 6000 marks. Lord Hailes remarks,
that "from this passage it may be concluded that as early as 1211,
burgesses gave suit and presence in the great council of the king's
vassals, although the contrary has been asserted with much confidence by
various authors."
With all the reluctance to dissent from Lord Hailes' opinion that every
one must feel who has experienced the benefit of his accuracy and
learning, I confess I cannot arrive at that conclusion. I think the
separation of the sums, and the turn of the sentence in Fordun, [Hoc anno
rex magnum tenuit consilium, ubi petito ab optimatibus auxilio,
promiserunt se daturos 10,000 marcas; praeter burgenses regni qui 6000
marcarum promiserunt. Ford. VIII. 73.] lead more to the belief that
while the magnates or great men of the king's own court voted their 10,000
marks, the court of the burghs separately and independently granted an aid
from their constituents of 6000 marks. The words of Fordun seem to me to
indicate that the burgesses did not vote or deliberate in the same
assembly with the "optimates."
The term Parlement, first used in France,
under Louis VII., first occurs in England in the preamble to the statute
of Westminster, 3 Edw. I.
The magna charta of John,
points to the theory of the constitution of Parliament. But the earliest
Parliament that can be proved by extant writs to have resembled the
present legislative constitution of England by summons of citizens and
burgesses is 49 Hen. III.
The first time that Wyntoun gives to the
National Assembly of the Estates of Scotland the name of Parliament, is in
mentioning that in which the six Wardanes were appointed. [Wynt., VIII.
1.] By the treaty of Brigge-ham, it was covenanted that no parliament
should be held without the boundaries of Scotland, as to matters
respecting the kingdom. The term had very recently been introduced in
England, and was not, till some time afterwards, the word of style for all
solemn National Assemblies of the Estates.
The Parliament assembled by John Balliol at
Scone, on the 9th day of February 1292, was probably the first of the
National Councils of Scotland, which bore that name in the country at that
time, although later historians have bestowed it freely on all assemblies
of a legislative character. We have no reason to believe that any change
in its constitution occasioned the adoption of the new term, which soon
became in Scotland, as in England, the received designation of the great
Legislative Council solemnly assembled.
Hitherto we may conclude no burghs had sent
representatives to the king's proper court of magnates. But their
importance was on the increase, and the circumstances of the country, the
long and costly war of independence, required to extend the sources of
national supply. Still we have no c evidence that the representatives of
the burghs formed a part of the solemn Parliaments of Robert I. in 1314,
1315, and 1318, although a remarkable change of style in the second of
these, seems to indicate the introduction of a new element in the National
Assembly. In the parliamentary settlement of the crown on Edward Bruce in
1315, the members present are classed as "bishops, abbots, priors, deans,
archdeacons, and other prelates, earls, barons, knights, and others of the
community;" and seals are affixed by the prelates and nobles, and by the "majores
communitatum," a phrase which it might be rash to assert, meant the
burgesses, if it were not for their undoubted appearance so soon
afterwards. Finally, in the famous Parliament at Cambus-kenneth, held on
the 15th day of July 1326, when Bruce claimed from his people a revenue to
meet the expenses of his glorious war, and the necessities of the state,
the tenth penny of all rents, according to the old extent of King
Alexander III., was granted to the monarch by the earls, barons,
burgesses, and free tenants, in full Parliament assembled. The change had
taken place silently, perhaps gradually; but from thenceforth,
undoubtedly, the representatives of the burghs formed the third estate,
and an essential part of all parliaments and general councils.
It is remarkable that, in
this Parliament, where we can for the first time ascertain the presence of
the Third Estate, we have the first development of what are now considered
the fundamental principles of a representative constitution. There was a
compact between the king and the three Estates; a claim of right, redress
of grievances, a grant of supplies, and a strict limitation of the grant.
The three estates acknowledge the great merit of the king, and all that he
had undergone for restoring the liberties of all. The grievous burdens of
the people, through arbitrary taxes, are pointed out; sustentationem non
habuit absque intolerabili onere et gravamine plebis. The king is to
impose no other "collectas" and to mitigate his legal exactions of prisae
et cariagia. On the other hand, the Estates grant him the tenth penny of
all rents, a gift which they declare shall be null if the king defeats its
application to the public service by any remissions granted beforehand;
and the grant is to cease with the king's own life.
The next important change in the constitution
of our Parliament arose from pure accident. The frequent meetings of the
national council, and their long deliberations, had been felt extremely
burdensome, especially by the class of small freeholders, among whom, as
yet, no representation was established. Many of these attended with
reluctance, and could not continue during the session without much
inconvenience. To ease that class, and also to avoid the inconvenience of
popular discussion of certain questions, for the consideration of which
expressly the national council was summoned, Parliament devised the plan
of delegating its power to certain committees of its members.
In a Parliament held at Scone, September 27th,
1367, the record bears, that "convocatis tribus com-munitatibus regni
congregatis ibidem, quedam per-sone electe fuerunt per easdem ad
Parliamentum tenendum, data aliis, causa autumpni, licentia ad propria
redeundi." In the Parliament at Perth in the March of the following year,
the Three Estates, on account of the inconvenience of the season, and the
dearness of provisions, elected certain persons "to hold the Parliament,"
who were divided into two bodies: one to treat of the general affairs of
the king and kingdom, and another smaller committee to sit on appeals from
inferior courts "super judiciis contradictis." And in the following
parliament held at Perth, on the 18th February 1369, two committees were
appointed; the first, "ad ea que concernunt communem justiciam," namely,
appeals, and pleas, and complaints, which of right ought to be decided in
Parliament; the other, "to treat and deliberate on certain special and
secret affairs of the king and kingdom, previous to their being brought
before the whole Parliament; since," says the record, "it is not expedient
that the whole body should assist at a deliberation of that kind, nor be
kept in attendance." In these arrangements we perceive the origin both of
the "Committee of Articles," which afterwards became an essential and
remarkable part of the constitution of Parliament, and of that judicial
committee which, under various forms and regulations, became in like
manner a permanent institution, and terminated in the establishment of a
separate and supreme Court of Justice. That these were novelties in the
reign of David II., is evident from the words of the records already
quoted; and as such they were avowedly used as a precedent in the reign of
his immediate successor, Robert II. In a Parliament held at Scone, March
2, 1371, the form of procedure in that of 1368 was literally copied "Imitando
videlicet ordinem ilium et modum qui servabantur in Parliamento tento apud
Perth tempore venerande memorie domini regis David anno regni ipsius
quadragesimo." There
were various attempts to establish a court of supreme Civil Jurisdiction
from the time of James I. downwards. In 1425 it was ordained that the
Chancellor, and with him certain discreet persons of the Three Estates to
be chosen by the king, should sit three times in the year, to examine,
conclude, and determine all complaints, causes, and quarrels that may be
determined before the King's Council. The Parliament, 1457, enacted that
the Lords of the Session should sit thrice in the year, "ilk time forty
days, in thir three places: Edinburgh, Perth, and Aberdeen." "The noumer
of the persons that sall sit sall be nine, of ilk estate three." In 1503,
because there had been great confusion of summons at each Session, so that
leisure nor space at one time of the year might not have been had for the
ending of them, it was statute that "thair be ane consale chosen be the
kingis hienes quhilk sal sit continually in Edinburgh, or quhar the king
makes residence, or quhar it plesis him, to decide all manner of sumoundis
in civile maters, complaints and causis, daily, as thai sal happen to
occur, and sal have the same power as the Lords of Session." All these
attempts seem entirely to have failed. Each successive Parliament
appointed its judicial committee, or "Dominos ad causas et querelas," who
not only exercised an appellate jurisdiction, but decided causes in the
first instance. Their jurisdiction is in no respect distinguishable from
that of the King's Council. In 1467 it was ordered by Parliament "that all
summondis and causis that is left undecidit in this Parliament sal be
decidit before the Lords of Counsaile, the summondis standing as they now
do." And, accordingly, causes that commenced in the one court frequently .
were disposed of in the other, while the clerks seem to have had no clear
notions of the distinction between them; and frequently, in engrossing the
proceedings of the one, use the style and form of the other.
The functions of both these judicial bodies
were at length united in the Court of Session or College of Justice,
established by James V.
The institution of that court seems to have
originated with the king himself, who, intending " to institute ane
college of cunning wise men, baith of spirituale and temporale estate, for
the doing and administration of justice in all civile actiouns, therfor
thinks to be chosen certaine persouns maist convenient and qualifyit
therfor to the nowmer of xiii persounes, half spiritual, half temporal,
with ane president. . . The Three Estates of this present Parliament
thinkis this artikle wele consavit, and therfor the kingis grace, with
avise and consent of the said Three Estates, ordanis the samin to have
effect." It was
perhaps to be expected that the new "College of Justice" should for some
time be unpopular; but the hatred and rage with which its institution and
first proceedings were received, are not to be explained either by the
dilatory and cumbrous working of a new procedure, nor by ignorance or
incapacity of the members of the Court. It may be that the smaller number
of judges rendered it more open to solicitation and the coarser modes of
influence which at that time, and for very long afterwards, tainted the
fountains of justice.
Of the original mode of electing the Lords of
Articles there is little evidence. It is probable each estate chose the
part to be taken from its own number. James VI. applied his whole
ingenuity to secure for the Crown the permanent control of their election;
and though he might overstate his power when, in his speech at Whitehall
to the Parliament of England, he boasted that in Scotland, "such bills
only as I allow of, are put into the Chancellor's hands to be propounded
to Parliament; and after this, before I put my sceptre to a law, I order
what I please to be erased" the desired result was fully obtained during
the reigns of his successors. In 1621, the Lords of Articles consisted of
eight from the clergy, eight from the nobility, seven officers of state,
eight small barons, and seven commissioners of burghs. They were appointed
to meet every day in the inner house of the Tolbuith, at ten morning. The
whole Estates were ordained to await in the town of Edinburgh till the end
of Parliament. The Lord High Commissioner and the Lords of Articles sat
every day, advising on the articles presented in Parliament, from July
21st to August 4th; on which day the Parliament met and passed one hundred
and fourteen Acts, and was thus concluded. In 1633 the method of election
gave rise to much discussion. The King and Estates being convened in the
Parliament House, the Parliament fenced and suits called the king having
retired to the inner great room of the Exchequer House, the clergy to the
little Exchequer House, the nobility to the Inner House, where the Lords
of Session sit; for Lords of the Articles, the nobility elected eight of
the clergy, the clergy chose eight of the nobility; and thereafter, the
persons chosen of the clergy and nobility, being-convened together in the
Inner House of Session, chose, jointly, eight of the commissioners of
shires, and as many of the free burghs; and the King having entered into
the said Inner House in presence of the nobility and clergy, named eight
officers of state, besides the Chancellor and President; and the King,
clergy, and nobility, re-entering the Parliament House, and his majesty
being set upon the throne, and the whole estates having taken their
places, publication was made of the election. The King and the Lords of
Articles sat daily within the said Inner House of the Tolbuith, and
advised on the whole articles, petitions, ratifications, acts, statutes,
laws, and others, presented to them in Parliament, from the 20th to the
28th of June; on the which last day the King, with the whole Estates of
Parliament convened, concluded the Parliament, the whole Acts being read
and voted by the Three Estates to stand as Acts ( of Parliament; the king
assenting and confirming the same by touching them with the sceptre, as
presented to him by the Lord Clerk of Register. And in 1663, it was
enacted that the same form and order should be kept in all time coming.
A system of representation of the small
freeholders was attempted to be introduced by James I. upon his return
from England, which for the time was wholly ineffectual. No
representatives were actually returned to Parliament, and acts were passed
for more than a century for the relief of the small barons, successively
raising the amount of fortune below which they should not be obliged to
give personal suit and presence in Parliament. The project was renewed in
1567, and again, with more success, in 1585 and 1587; and from the latter
period, the representatives of the small barons or freeholders formed a
considerable proportion of every Parliament, where they were classed and
treated as a separate estate, though by the theory of the constitution
they formed a part of the baronage.
The clergy, as one of the Estates, may be said
to have disappeared with the Reformation. The laymen, who continued for
some time to sit in virtue of grants of the great Church benefices, were
in no respect distinguished in interest or feeling from the other barons.
During the periods when Episcopacy was again established, the bishops
alone formed the clerical estate.
Each of the royal burghs was at first required
to send at least two representatives to Parliament and though the number
actually attending was generally small, it was not till 1619 that they
were relieved of a part of the burden. From that time, by an order of the
convention of burghs as it appears, unsanctioned by Parliament one
member was returned for each burgh, except Edinburgh, which continued to
send two representatives.
Certain great officers of the Crown had a seat
in Parliament in virtue of their offices, The number of these "offices of
the State" admitted, was, in 1617, limited to eight.
There was no division of houses in the Scotch
Parliament: all the Three Estates sat and voted together; an accident
unfavourable to the independence of the Third Estate. The Committee of the
Lords of the Articles soon engrossed the whole legislative business and
power of the Parliament; a result not so mischievous even from its
throwing into the hands of a party the initiative of all measures, as from
entirely quelling the freedom of parliamentary discussion, which became
impossible when a multitude of bills, hitherto kept secret, were laid at
once before Parliament, and forthwith put to the vote in a mass.
The mode of the election of the Committee of
the Articles was necessarily a subject of great interest, and, in later
and worse times of the Scotch Constitution, the devices of politicians
threw it entirely into the hands of the Government. It formed the first
subject of the list of grievances presented by the Estates of the kingdom
after the Revolution; and in the first Parliament of William and Mary,
"the Committee of Parliament called the Articles" was abrogated.
Circumstances were most unfavourable to the
growth of a sound representative constitution in Scotland. It was James's
wish to have a Parliament like that of France, a court to register his
decrees; and while the system of representation was still in its infancy,
his accession to the English Crown seemed to give him the power to carry
his wishes into effect. The succeeding Stuarts, though they never found
Scotland so easily governed as James boasted, were successful in
extinguishing all parliamentary discussion. The period between the
Revolution and the Union was too short to give the habits or the spirit of
an independent legislature; and the superior importance attached to the
proceedings of the English Parliament, had by that time thrown Scotland
somewhat into a provincial position. It was rather from the accidents of
its government, than by reason of any radical defect in its constitution,
that the Scotch legislative assembly never fulfilled the highest end of a
Parliament in possessing the confidence of the country. Certainly, at no
period of her history can it be said, that the people of Scotland looked
to the Parliament for redress of grievances, or as the defender of their
rights. |
