The Scottish Parliament: An Historical Introduction

Keith M. Brown, Alastair J. Mann and Roland J. Tanner

War with England and the Bruce Dynasty, 1306-1371

By 1306, when Robert I seized the throne, there might have been some expectation that the prominent role for the community of the realm in the government of the kingdom that had arisen since 1286 would continue. Yet no king voluntarily accepts limits upon his powers, and Robert I restored royal authority, removing the ability of the community to play a significant role in the formulation of parliamentary acts. The king used the rhetoric of community and parliamentary authority that had evolved since 1286 to give his actions a façade of broad support that they often did not have. Parliament became a tool for creating documents designed to validate and augment the king’s authority by the public display of support for his kingship – most famously in the Declaration of Arbroath (1320). A meeting of parliament, therefore, was a useful means of engineering declarations of support for the king, or of manipulating collective decision-making, but, as was clearly demonstrated in the meeting at Ayr in 1315, any large assembly of prominent lords was equally useful. More crucially for the history of parliament, while Robert I was willing to adopt the language of collective authority, there is little evidence of that authority in action during his reign. Instead, there is substantial evidence to suggest he was ruthless in appending indications of community support to documents that were created firmly under the oversight of his chancery. Particularly in the use of the names and seals of the Scottish bishops on key documents, Robert I hijacked the language of collective power for use on documents that were not created in the presence, or with the knowledge of, substantial numbers of the sealers. While the reign of Robert I certainly saw dissatisfaction and opposition manifest itself even among people nominally at the king’s peace – most famously in the Soules conspiracy of 1320 which aimed at removing Robert I – this was not something that evidence suggests was voiced in parliament. As was the case in most of Europe, parliament once again belonged to the king, not the community.[13]3213. Tanner, ‘Cowing the community?’; Brown, Wars of Scotland, pp. 225-6.

However, the actions of Robert I were unable to erase the memories of what parliament had done in the 1290s. Robert I demonstrated something of how a strong king might treat parliament, and later medieval kings like James I and James IV in their own different ways also exercised royal power over the estates. But the discontinuity of personally exercised royal authority that arose after 1286 was to be a prominent feature of the next two hundred and fifty years, ensuring that parliament never suffered from prolonged periods of royal overbearance. The importance of meetings of the ‘community’, ‘three communities’ or ‘three estates’,[14]3214. ‘Tres communitates’ is first used in 1357, and is frequent thereafter (RPS, 1357/11/1). The singular ‘communitas’ continues to be used alongside it (ibid., 1357/11/9) through the remainder of David II’s reign. ‘Three estates’ is first used in 1373, in a phrase which indicates that ‘estates’ and ‘communities’ are synonymous: ‘de tribus statibus sive communitatibus totius regni’ (‘concerning the three estates or communities of the whole kingdom’, ibid., 1373/3), and gradually becomes the norm thereafter. as events when the crown could find itself prevented from pursuing its policies evolved especially during lengthy royal absences, minorities and government by lieutenant. In any period, such circumstances brought parliamentary bodies to prominence as fora where genuine settlements were hammered out between factions that lacked overriding authority. Throughout the late medieval period no royal minority, or a lieutenancy, concluded without a parliament or general council proving a thorn in the side of a faction at least nominally in control of the government.

However, while David II’s reign does show substantial evidence of the ability of parliament to exert its will over the king when the need arose – most clearly over the policy of an English succession favoured by David II after 1346 – this should not be confused with parliament acquiring formally recognised powers to act as a check on the crown. During the king’s prolonged absences, parliaments, or more often ‘plena consilia’ (a phrase whose meaning is hard to establish with confidence, but that implies ‘full councils’ with at least a quasi-parliamentary authority and attendance), were fora for conflict and ‘wrangling’ between rival parties, particularly between the favoured councillors of the king and Robert the Steward (the future Robert II) and his allies. The ‘crown’ side was by no means guaranteed to emerge the victor. As a result, during the first period of direct governance by David II (1341-46), the king did not find it easy to pursue his policy of exerting his authority over the well-established interests of men such as the Steward. Instead, these men were still able to use a council for their own purposes at Aberdeen in 1342, overturning a policy of ‘divide and rule’ pursued by the king.[15]3215. Penman, ‘Parliament lost – parliament regained?’ Their ability to oppose royal policy, however, probably says as much about the confidence and abilities of a young and inexperienced king as it does about the development of parliament.

Following the king’s capture by the English at the battle of Neville’s Cross in 1346, the Steward showed far more ability to use council as a means of implementing his policies, even pursuing policies that only put off the day when David II would return to Scotland. Yet the king at least seems to have recognised the de facto powers of the estates, agreeing concessions to the clergy and the burgesses, and making promises about the powers of parliament, in an attempt to win his subjects over to his plans. Ironically, in opposing David’s plans, the Steward and the estates turned to the rhetoric used in Robert I’s reign of threatening to select another king if he went against their wishes. But even the Steward had to bow to apparent changes in opinion; when he agreed to opening negotiations with England in 1357 he gave ample recognition of the authority of the community. Subsequent to his release in 1357, relations between David II and parliament evolved in response to the difficult problem of paying a large ransom after a period of the king’s absence. Moreover, the language of parliament had made a leap forward since the reign of Robert I, with collective decision-making implied in much of the legislation, in contrast to Robert I’s legislation of 1318 that was clearly an expression of royal policy.[16]3216. Brown, Wars of Scotland, pp. 325-6; Penman, Parliament lost – parliament regained?’; M. Penman, David II 1329-71 (Edinburgh, 2004), passim. ‘Legislation’ is here used to denote the business that in an English legal sense would be called ‘acts of parliament’ (only statutes that establish or alter the law). A Scottish ‘act’ of parliament denotes not just statute law, but any proceeding of parliament, however unimportant.

However, there was a turning point in 1364. After this date a more experienced David II mastered the trick of political management necessary to secure obedient assemblies, controlling the attendance by adopting the ‘licencia recedendi’ (permission to withdraw), and apparently excluding the troublesome and powerful magnates – the Steward, Douglas and March – who had stood in the way of his policies hitherto. As with the Bruce tailzies of 1315 and 1318, those who attended were encouraged to swear oaths, on this occasion to uphold decisions favouring a military alliance with Edward III. The swearing of oaths to the king often implies that loyalty is in doubt, rather than the unanimity that the oaths would like to purport. As in 1315 and 1318, the 1365 oaths probably also indicate the determination of the crown to get its way regardless of objections, and a process of recording the coerced public acquiescence to controversial policies by potential enemies. The repeated grants of taxation during the latter stages of David II’s reign, therefore, suggest that the king ended his reign with almost as much control over parliament as his father had exerted, although the king’s dependence on parliament to provide that taxation should not be under-estimated. While this position of royal strength was largely atypical in the period after 1329, it suggests that parliamentary authority remained reliant on royal weakness, rather than any widely accepted de jure recognition of its position.[17]3217. Penman, ‘Parliament lost – parliament regained?’; M. Penman, David II 1329-71 (Edinburgh, 2004), passim.

Part 3 - The Late Medieval Stewart Monarchy, 1371-1496 >

Footnotes:

13. Tanner, ‘Cowing the community?’; Brown, Wars of Scotland, pp. 225-6.

14. ‘Tres communitates’ is first used in 1357, and is frequent thereafter (RPS, 1357/11/1). The singular ‘communitas’ continues to be used alongside it (ibid., 1357/11/9) through the remainder of David II’s reign. ‘Three estates’ is first used in 1373, in a phrase which indicates that ‘estates’ and ‘communities’ are synonymous: ‘de tribus statibus sive communitatibus totius regni’ (‘concerning the three estates or communities of the whole kingdom’, ibid., 1373/3), and gradually becomes the norm thereafter.

15. Penman, ‘Parliament lost – parliament regained?’

16. Brown, Wars of Scotland, pp. 325-6; Penman, Parliament lost – parliament regained?’; M. Penman, David II 1329-71 (Edinburgh, 2004), passim. ‘Legislation’ is here used to denote the business that in an English legal sense would be called ‘acts of parliament’ (only statutes that establish or alter the law). A Scottish ‘act’ of parliament denotes not just statute law, but any proceeding of parliament, however unimportant.

17. Penman, ‘Parliament lost – parliament regained?’; M. Penman, David II 1329-71 (Edinburgh, 2004), passim.