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Scotland in the Middle Ages
Chapter VII - Ancient Constitution of Scotland


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 witnesses—and 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.


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