'"^'' ■ T H E RIGHT O F T H E ELDEST SONS O F T H E PEERS of SCOTLAND TO REPRESENT THE COMMONS of that Part of GREAT BRITAIN in PARLIAMENT, CONSIDERED. PRINTED IN THE YEAR MDCCXC. n T ri E J 'V RIGHT O F T H E B Elcleft Sons of the Peers of Scotland, >- s C. CSTC. CS/ c. CONSIDERED. THE Houfe of Commons having lately declared a Seat vacant, in confequence of a Rule, fuppofed to have obtained in Scotland, before the Union, that the eldeft Son of a Peer is incapable of reprefent- ing the Commons in Parliament, thofe immediately interefted were led to confider, Whether there really was fuch a Rule of Law, and upon what Foundation a Notion fo fmgular could reft ? A noble Lord * favoured the Public with his Thoughts on the Subjeft, didated by a Regard to his Order, and a Spirit of free Inquiry, which does him honour. Since that Publication, much Light has been afforded by the Refearches and Obfervations of another noble Lord f ; and their Labours make it an eafy Tafk to ftate the Merits of the Qiieftion clearly ':£ and concifcly, for the Information of thofe who have not Leifure or S Inclination to perufe the Argument and Authorities at large. * Lord Saltoun. t Lord Daer. A 2 It ( 4 ) It may be remarked in the Outfet, that thofe who are moil concerned in the Queftion profel's to aim, not at the Acqmfition^ but at the Recovery^ of a Privilege : not to alter a Part of the Gonflitution, but to rejlore it. There is a wide Difference between recurring to theoretical Principles, and aflerting a conftitutional Right once acknowledged, and abolifhed by no Law, the Exercife of which ivS alleged to be fufpended only, either from thofe entitled not claiming it, or from the erroneous Decifions of Judges. The Right of eledling to Parliament cannot be loft by difufe. There are many Inftances in England of Places, which had negledled to fend Reprefentatives for Centuries, being reftored to the Franchife, whenever it was claimed. Much lefs can the Capability of being ele<£led be loft, for that is the Birth-right of every Subject not 1560. excluded by pofitive Law, The Hiftory of Scotland Ihows that the whole Body of Landholders, other than the Nobility, had negledted to attend Parliament, for fo long a Time, that their Right came to be doubted ; but it was recognized as foon as the ancient Practice was afcertained. In later Times, there is an Inftance of a County in that Kingdom being reftored to the Right of fending Reprefentatives after long difufe. A Decifion of the proper Judicature, That a Perfon is incapable of being elected, though it binds the particular Cafe, and the Parties, irre- vocably, cannot alter the Law, even when it profefles to lay down a general Rule. If the Exiftence of the Right is proved in a fubfequent Cafe, no liberal Man will oppofe the Refumption of it ; and if the Error of former Determinations is demonftrated, Judges are bound to reverfe the Principle. Upon thefe Grounds, the Claim of the Eldeft Sons of the Peers of Scotland fhall here be confulered. It is not meant to introduce Argu- ments from Expediency ; to afk. Whether it is reafonable to exclude for a Time, from the Legiflative Body, Men, who, by their Birth, muft one Day make a Part of it ? to exclude them at a Time of Life when they can be moft ufcful, becaufe they may be included at an after 2 uncertain ( 5 ) uncertain Period ? or, Whether a Diftindlion ought to be made be- tween the Sons of Englifh and of Scots Peers, whilft Mr. Hatfell's Pofition is indifputable, that, " It is of great Importance that young Precedents, *' Noblemen fhould pafs through the Houfe of Commons to the Houfe 13. " of Lords, as a School in which they hear the firft Principles of the " Conftitution ably and freely debated, and where they acquire Ideas " of Freedom and Independence, and contradt Plabits of Bufmefs ?" That the eldeft Son of a Peer of Scotland is incapable of being elected to reprefent a County or a Borough in that Part of Great Britain, is a Propofition for which no -written Authority can be produced, except two Refolutions of the Parliament of Scotland ; one in 1685, and ano- ther in 1689, and a Refolution of the Britilh Ploufe of Commons in 1708. There is not a Word in the Statute Book to give Countenance to it. There is not a Syllable to that Purpofe in any Writer upon the Law of Scotland before the Union. Though there is reafon to think, the firfl of thofe Refolutions in the Scots Parliament paffed without Obfervation or Confideration, and the fecond with very little ; though both appear to have originated in Party ; and though the Refolution of the Britlfh Houfe of Commons feems to have had no Foundation but the Scots ones ; it may readily be admitted, that the Refolutions are entitled to Refpedt, efpecially after the laft has been fo long feemingly acquiefced in ; that they are prima facie Evidence of the Law ; and that it lies upon thofe who impugn them, and the Evidence they afford, to Ihow in the moft fatif- fadtory Manner that they were erroneous. If that can be done, it will not be faid that Error fhould be perfifted in. It will not be contended by any Perfon acquainted with legal Principles, that thofe Refolutions have the Force of general Laws, and much lefs that general Law could in that Shape be abrogated. This is what the eldeft Sons of the Peers of Scotland muft under- take to do. And as the Refolutions, though not fujiported by written Law, may be fuppofed to have been founded in unwritten Law or Cuftom, ( 6 ) Cuftom, unlefs the contrary is proved, it is necelTary to fliow what the Law and Cuftom of Scotland, in ancient Times, was in this refpeft. It is therefore propofed here ; ift, To iliew, that by the Confti- tution of the Parliament of Scotland, prior to the Year 1587, when the Reprefentation of the Counties was eftablifhed, the eldeft Sons of Peers, when podeirod of Qualifications, muft of neceJJUy have been, and in fadt were, conftituent A4embers. 2dly, To confider, whether the A£t pafled in 1587, which difpenfed with the Attendance of the Landholders under the Degree of Peers, and required that they fhould appear thereafter, by their Reprefentatives, or any fubfequent Statute, excluded the eldeft Sons of Peers from choofmg, or being themfelves chol'en, parliamentary Reprefentatives of the Landholders. 3dly, To give an Account of the Refolutions and other Tranfadlions in Parlia- ment fmce the Year 1587, which are fuppofed to affe£l the Right of the Peers eldeft Sons ; and make fome Obfervations upon them. And, laftly. To confider the Arguments ufed by Writers and others, who contend for the Exclulion, or fuppofe it a Point fettled. Conftitu- j_ Yhe Parliament of Scotland differed in its Conftitution and Form tion of the Scots Par- of Proceedings from the Parliament of England in feveral Particulars. liameiic from the earlieft Period, down to the Time of the Union, the Lords prior to 1587. and Commons formed but one Houfe, and voted promifcuoufly. The Parliament confifted, however, of three diftindt Bodies or EJIates^ which were a Check on one another, in fome Points, unneceflary to be here mentioned. The lirft EJiate was that of the Clergy, com- pofed of the Prelates and other Dignitaries. Tlie fecond was compofed of all the Landholders, Tenants of the King in capite, whether Lords or Commons, and whether their Eftates were great or fmall, under the Denomination of Barons or Freeholders ; for the Term Freeholder is in Scotland applied only to thole who hold Lands of the Crown. The Reprefentatives of the Royal Burghs made the third Eftate. At what Period they were introduced into Parliament is not known; but, com- paratively with the Barons, it was at a late one. Parliament ( 7 ) Parliament was originally no other than an Aflembly of the King's Lord Vaflals in his Court, as paramount Lord, or Superior, of all the Lands Y_(]-^y^n„ in the Country. The Attendance was an Oblip^ation, neceflarily ariling ^''■".''!^ ^n- •' _ tiquities, from their Tenure, in the fame way as the VaiTals of Meine Lords, and other or Subject Superiors, were bound to give Suit and Prefence in their "tnont.cs. Courts. Hence, none but the immediate Vaflals of the Crown were admitted, or, more properly fpeaking, were compellable to attend Par- liament, and all who held immediately of the Crown were confti- tuent Members. Hence, likewife, the Introduction of the Reprefent- atives of Royal Burghs. The Burgefles held their Lands and Tene- ments feverally of the King, and every one of them was entitled, as his Tenant, to a Seat in Parliament ; but, that being inconvenient, they were allowed to attend by their Reprefentatives. Lord Stair, treating of the Feudal Syftem, writes thus : " In Scotland the King, Lord Stair's , rr J 1 1 ■ rt !■ • Inftitutions, " as fupreme Superior, ruleth by his VaJJals ajjembled in Farltament, in B. 2. Tit. 3. " which, at firft, all were perfonally prefent, who held Lands im- " mediately of him ; as Barons, great and fmall Freeholders of any " Moment, holding a Forty Shilling Land, of old Extent, of the " King, and Prelates for Church Lands. The free Burghs were alfo " reprefented in Parliament by their Commiflioners, as holding the " Burgage Lands, and their Freedoms and Privileges, as Feudatories " of the King : fo that there was not one Foot of Ground in Scotland " whofe Lord was not prefent in Parliament, by himfelf or his De- " legate. But when Feus holden of the King came to be fubdivided " and multiplied, two or more CommilTioners were admitted in Par- " liament, in Name of the meaner Barons or Freeholders." To the fame Purpofe, Lord Bankton : " Originally with us, none had a Seat in Par- Lord Banlf- *' liament but thofe pojfejfed of a Freehold of the King. Thus the Biftiops, ,°te^ 3 " and likewife the Peers, fat in refpedt of their Baronies, all Nobility 1 't- i- § i^« " and Peerage being of old territorial ; and the other Freeholders were " all entitled to fit in Parliament, and bound to attend^ till the Small " Barons, { 8 ) " Barons, as a Privilege, were exempted, and allowed to choofe Com- " iniffioners to reprefent them." The three EJlatcs of Parliament, continued as above mentioned till the Revolution, when the Eftate of the Clergy being annihilated, and it being reckoned neceflfary, as it would feem, ftill to have the Name of i/jree Eftates, the Nobility were feparated from the other Landholders, and made the firft Eftate. The Reprefentatives of thofe other Land- holder?, or Leffer Barons, as they were called (for Reprefentation itl Counties had fome Time before taken place, as (hall be afterwards mentioned), made the fecond Eftate. And the Burgh Reprefentatives continued to be the third. Hereditary Titles of Nobility were conferred by the King, in Scotland, from the moft ancient Times of which any Record remains. It is certain that thefe Peerages were anciently territorial, and pafled with the S the land^ Land ; as the Authorities quoted above, and many others which might by Lord \)q referred to, ftiew. They were afterwards perfonal, conferred by chap. I. Patent, or by Inveftiture in Parliament. Thofe who held fuch Honours, came to be called Noblemen^ Lords of Parliament^ and Greater Barons^ to diftinguifti them from the Freeholders, or Lejfer Barons^ but ftill they continued of the fame E/late, with the general Body of the Free- holders or Barons ; nor is there any Reafon or Authority for thinking, that, /'« Parliament^ they enjoyed any Privilege beyond the Lefler Barons, except that of Rank and Precedency. It may be fuppofed, that after Peerages came to be conferred without Regard to any particular Terri- torv. the Holders were confidered as conftituent Members of Parlia- ment, and that they idXas Peers, rather than as the King's Vajfals; though ■it is fcarcely to be imagined, that there ever was one of them without Lands held of the King, and confequently not entitled to attend Parliament, and to be of the fame EJlate as a Freeholder, independent of his Peerage. The Obligation might thus in Idea be changed into a Privilege, analogous to the hereditary Counfellorfliip annexed to the Peerage ( 9 ) Peerage in England. But,however that may be, the Eflate of the Barond, including both the Greater and Smaller, was ftill confidered as repre- Jcttting the Land of the Khigdom, and they were all, fo far as is known, upon the fame Footing, when met. It is proved Indifputably, by the Records, that before the Introduc- tion of Reprefentatives for the Counties, eldeft Sons of the Peers or Nobles attended Parliament, and were accounted as belonging to the Eftate of Barons or Landholders, Tenants of the King in caplte. Upon this, the prefent Queftion mainly hinges ; and it is therefore hoped, that thofe who wifh to form a fair Judgment upon it, will attend to the Fa£t, and the neceflary Inferences from it. That there Ihould not be many Inftances of the eldeft Sons of Peers attending as conftituent Members, is not wonderful ; becaufe none but thofe who held freehold Lands in their own Right, could attend, or were admiffible. One Inftance, well authenticated, would affoi-d Evi- dence of what is meant to be eftabliflied, as good as a thoufand. But there are many, and in fuch various Situations, as ferve to refute all the Suppofitions of thofe who, forced to admit the Fadt, endeavour to explain it, in Confiftency with the Hypothefis of the Peers Sons not being efficient Members. There are no authentic Rolls of the Members who attended Parlia- ment till the Year 1466, in the Reign of James III. but from that Time, the Records are exifting in tolerable Prefervation, down to the Union in 1707. At the opening of each Parliament, or Seflion, there is generally a Roll containing the Names of the Members then prefent, c q ■ or, in the later Times, containing the Names alfo of all who appear to of the Rolls, have attended on future Days, during the SefFion. pendix. ^ " A Search of the Records has afforded the Names of above thirty eldeft Sons of Peers in Parliament, moft of them fitting in two or three different Parliaments ; fo that, on the whole, there are Inftances to the Number of fifty-feven or thereby, of their being prefent. The firft, is on the ift of March 1478-9, and the laft, on the 29th of ^ November ( 'o ) November IJ5S ; after which, none are mentioned In the Rolls pre- ferved in the pubHc Rcgifter : hut befides thefc, there is a Lift of the IntheCotto- Members of the Parliament or Convention in 1560, well authenticated ; rv. by which it appears, that feveral of the eldeft Sons of Peers then at- tended. That the ekkft Sons did not attend as Proxies for their Fathers, as has been ignorantly alleged, is proved by the Fathers f}tting at the fame Time, in twenty-four Inftances ; and that they fat and aded as conflituent or efficient Members, is demonftrated by tlie Circumftance of their being appointed on Committees ; there is an Inftance particularly of the Earl of Huntley's eldeft Son being of the Committee of Articles, the Importance of which every one, wIiq is the leaft converfant in Scots Hiftory, knows,, and that,, while his Father was alfo attending Parliament. There is no Reafon for fuppofing, that the Peers Sons, who are thus proved to have attended, fat in any other Charadter than that of Lefler Barons, or Freeholders, entitled by their private Properties. Lord Kaims, in his Eflay on the Conftitution of Parliament, favs, Kaims'sEf- " In I'l^er Times (meaning not long before 1587), the Barons by fays, p. 99. « Tenure, v/ho attended Parliament, were- moftly the eldeft Sons of " the Nobility i'lfeft hi (i. e. feifed of) Lands ^ to entitle them to a ** 'Seat there r It is not eafy, at this Diftance of Time, confidering the Change of Property, and the Imperfedion of the Regifter of Charters and Scq/ins, to afcertain what precife Lands were enjoyed by the Peers eldeft Sons who are marked as fitting in Parliament ; but in fun- dry Inftances it can be proved by the Records, that they acStually had, ia their owrr Right, Eftates entitling them to fit as Lefler Ba- rons. According to feudal Principles, if the eldeft Son of* a Peer; pofleflcd Lands held of the King, he muft of Necejfity have attend- ed Parliament or forfeited his Eftate ; unlefs receurfe rs had to fo wild a Suppofition, as that the King in every fuch Cafe difpenfed with the Attendance J and therefore, though the Records had not afforded a fingle Inftance of a Perfon, in that Situation, attending, the only laference would, have been, that no eldeft Son of a Peer had happened to ( 'J ) to be poflcfTed of freehold Lands ; but the Right in Law would have been the iamc. If the eldefl; Son of a Peer fucceeded to a Dignity, or Greater Barony, by the maternal Lnie, or by collateral Succefhoti, it will not be contended, furcly, that he was incapable of fitting in Par- liament, by virtue of that Title, though at the fame Time apparent Heir of his Father's Dignity ; and, by Parity of Reafon, and in precife Con- formity with the Conflitution, if he fucceeded to a Lcjj'cr Barony, or acquired one during his Father's life, he mufl have been inftantly intitltd to a Seat as a Lefler Baron. The Conclufion from all this, may be laid down with perfe<£l Con- fidence, That, prior to the Year 1587, the cldcjl Sons of Peers were adimjjlble to Parliament^ like other Lanaholders^ and ivben there were of that r.Jlate or Clafs whieb correfponds to the Reprefentatives of the Com- mons^ in jnodern Times, n. The next Thing to be confidered, is, the Alteration made in the Alteration Conftitution of Parliament, by allowing Reprefentatives fcr the ftitution of Leffer Barons, inftead of compelling their perfonal Attendance: and 'J'^ .^<^°'^ •^ 1 o r J rarhament. Whether the eldeft Sons of Peers who happened to be Leffer Barons, pofTcired of Freeholds in their own Right, and who had previoufly been entitled to fit in Parliament, were excluded from having a Voice in the Eledion of thofe Reprefentatives, or from being theml'elves chofen. It has been mentioned, that attending Parliament was a feudal Obli- gation or Burden acceflary to the Tenure. The Burden was, of courfe, moft felt by thofe who had fmall PofTeflions, and their Number, by the fplitting of Property, was continually increafing. By an AcH: of James I. in 1425', the perfonal Attendance of all Freeholders, without Dif- tindion, was ftridly required. It is probable that tliis was complained of as a Grievance ; becaufe, within two Years after (1427), another A(£l was pafled, difpenfuig with the Attendance of iht fmall Barons and free Tenants, provided they fent two Reprefentatives or Commifnoners from each Sheriffdom. It was thus left optional to attend in Perfon or by Reprefentation. The Term, Small Barons, in this Ad, is ufed in B 2 the ( ^2 ) the literal Senfe, fignlfying thofe who had fmall Properties, and not, as it came afterwards to be ufed, in Contradiftinftion to the Greater B.irons or Peers. Accordingly, by fublcquent Statutes, in the Reigns of James 11. and IV. the Extent of the Property which intitled tb.e Holder to Difpenfation from perfonal Attendance, and to choofe Reprefentatives, is precifely afcertained. During the Period from 1427 to 1587, the EJlate of the Barons in Parliament might have been dif- \inguilhed into three Clafles. ift, The Greater, or Nobility. 2d, The Barons, or Freeholders, under the Degree of Nobility, but polTefled of Kflates of too high a Value to be permitted to fit by Reprefenta- tives. And 3d, The Reprefentatives of the Small Barons. But, in fafl, the Privilege given by the Ads prior to 1587, was never exercifcd. The Barons Eftate in Parliament was compofed as formerly of the Peers, and Barons under the Degree of Peers, who chofe to attend, including the eldefl: Sons of Peers who happened to be poflelTed of freehold Lands, in their own Right. By the Roll of the Convention Par- liament, held in 1560, there appear to have attended, 2S of the Clergy ; i"}^ of the Nobility, amongft whom are particularly to be remarked, the Earls of Mariihall and Glencairn, and the Lords Som- merville and Lindefay ; loi Lefler Barons, amongft whom are five eldefl Sons of Peers, the Majlers of Mariihall, Glencairn, Som- merville, Lindefay, and Sinclair ; and 22 CommifTioners or Re- prefentatives of Burghs. The eldeft Sons of Peers, at that Period,. were diftinguifhed by their Father's Title, with the Addition of Mcjlcr^ Thus, Lord MariflialPs eldeft Son was ftyled, The MaJIer of Mari- Jhall. His fecond Son would have been called Mr. Keith. James Vr. In the Year 1587, an A£l was paffed which deferves particular At- Farhament ^gj^tiQ^^ It recites the Adt of James I. 1427, ratifies it, and direds, that it fliould be carried into Execution in Time coming. And it enadts, That Commijfioncrs to Parliament fliould thereafter be eleded for each County, and that all Freeholders of the Khtg, under the Degree of Prelates aiid Lords of Parliament, fhould be warned by Proclamation to be prefent at the choofing of the Coramiffioners, and thofe who had 3, . a forty 4 ^ '^ ^ a forty Shilling Land la free Tenantry, holden of the King, fhould have Voices in the Eledion. The Aiit concludes with a Declaration, •' That the Appearance of the fuid Commiflioners of the Shires in Par- ** liaments and general Councils, fhould relieve the Whole other Small •' Barons and Freeholders of the Shire of their Suits and Prefence in " Parliament." Though this A£l does not exprefsly difcharge the Barons and Free- holders, under the Degree of Prelates, and Lords of Parliament, from- perfonal Attendance, yet it was fo underftood. What has been re- peatedly mentioned. That the Attendance was confidered as a Burden,, not as a Privilege, is a Key to this, as well as other Things. They were to be relieved from Suit and Prefence^ if they fent Commiflioners ; and,, as it was not to be fuppofed that any would re.]t€t that proffered Relief,. the Claufe was tantamount to exprefsly debarring perfonal Attendance. Accordingly, from the Time of pafling this Adl, none of the Lefler Barons appear to have fat in Parliament but as Reprefentatives by Eledion, and Reprefentatives were regularly chofen for the Counties. From this Period, the Term Smaller or Lejfer Barons was applied ftriclly to all Freeholders under the Degree of Lords of Parliament,, holding Lands of the Extent mentioned in the Ad, and the Term. Greater Barons diftinguiflied the Peers. But ftill the Greater Barons,, and the Reprefentatives of theLeffer, made only one EJlate in Parliament.. From this Period too, it is admitted, that the Name of no eldeft Son of a Peer is to be found in the Rolls of Parliament that are extant,, nor is there any other Evidence that they fat, or attempted to fit, till the End of the following Century. From hence,, it has been argued, That riiis A£t of 1587 muji have been tinderjlood to exclude them from a Voice in the Election of the Reprefentatives of- the Leffer Barons, and from being thcmfelves eleded. So the Argument, if it deferves the Name, mufl be ftated ; for it cannot be pretended, that the A6t contains one Word, which can be wrefted into any Thing like a dire£l Exclufion, or one ExprefTion which can with any Propriety be faid to be aimed at the Peers Sons in particular. The only Colour which { H ) which the Argument derives from the A£\, is the Comcidence of Its Date, and of the deleft Sons cf Peers ceafing toappear in Parliament. Even this might be difputed ; for, in fad, they had ceafed attending, if their Non- appearance in the Rolls can he called fo, thirty Years before; and there are no Rolls extant for 27 Years after, in which Period there were frequent Parliaments: fo that, for ought that is known, the eldeft Sons of Peers may have been ele£lcd, and have fut as entitled by the Terms of the AQi 1587. The eldeft Sons of the Peers have no Occafion to prevent their Oppo- nents from making any Ufe they pleafe of this Ad, and of every other in the Statute Book. In return, they may found upon it, as decifive of the Queftlon in their favour. It feems a fair Argument, That, whether the eldeft Sons of Peers fat in Parliament before this Time or not, yet, under the general compre- ■henfive Words of the Acl 15S7, which grants the Privilege of eleding, and confequently of being eleded Commiflioners, fo all Freeholders of the King under the Degree of Prelates and Lords of Parlhvnent^ the eldeft Sons of Peers, having Freeholds, are included, becaufe it is impoftible to maintain that they were at the pafiing of this Ad, called or underftood to be Lords of Paj'liament. It might as well be faid, that they were Prelates. Lord of Parliament i^ a Term of Defcription fynonymous with Greater Baron, in contradiftindion to Lefter Baron,or a Perfon of inferior Order, and correfponds almoft exadly to the EnglifliTerm, Peer of Par- liament. In Scotland, when a Perfon of an inferior Order was to be •made a Noble of the loweft Clafs, it was not done by creating him a Baron, or granting him a Barony, as in England ; but it was, by creat- ing him a Lord of Parliatnent, cither by Patent, or by Inveftiture. Baron, .in the legal Senfe of the Term, in Scotland, is a Perfon, whether Noble or Commoner, who holds Lands with certain Privileges ; as the Territory, to the holding of which thefe Privileges are annexed, is called jbe Barony. In parliamentary Language, Baron is a Perfon who holds Lands ia any way of the King, and the fame as Freeholder, By ( 15 ) By the Words, Under the Degree of Lords of Parliament, in the h€t 1587, is meant under the Rank of Nobility ; and therefore, even fuppof- ing it had not been (hewn that the eldefl; Sons of Peers fat in Parliament prior to the Aft 1587, as Lefler Barons, by virtue of their Freeholds ; or that it could be fhewn that they never did ; flill the fair and legal Conclufion, from the Terms of the Aft, would be, that the Privilege of elefting, and being el'efted,. Reprefentatives of the Lefier Barons, was meant to be conferred on them, when poIfelFed of Freeholds, there not being a Syllable in the Aft to exclude them. But without carrying the Argument that Length, and taking the Aft irt the Scnfe in which it has been generally underftood, namely, as intended to draw a line of Diftinftion between the Peers, or Greater Barons, and the Commoners, or Lefler Barons, leaving \hQ. former precifely in the fame Situation they were j that is, confi:ituent Members of Parliament,, whofe perfonal Attendance was required ; and excluding the great Body of the latter^{o that, from that Time forward, they fhouldhave a Right to fit only by their Reprefentatives ; the Aft, when coupled with the in- difputable Faft. of the Peers eldeft Sons having been previoully admitted, and conftantly in ufe, to fit as Lefler Barons, when they had that Cha- rafter in them, is decifive, and what they found upon it may be fl:ated in the Shape of a Syllogifm. By the Aft of 1587, all Perfons then belonging to the FJlate of Ba- rons, under the Degree of Prelates and Lords of Parliament, v/ere ex- cluded from perfonal Attendance ; and, in lieu of it, a Privilege was con- ferred upon them of elefting, and of being elefted, Reprefentatives of the Lefl^er Barons. The eldeft Sons of Peers, being under the Degree of Prelates, and Lords of Parliament, were of the Eftate of Barons, and fat in Parlia- ment when poflxfl'ed of Freeholds, and confequently were of the Num- ber excluded by the Aft from attending perfonally. Therefore by the A(!t, they became, and are, entitled to eleft, or to be elefted, Reprefentatives^ This ( i6 ) This Ad of 1 587 is ftill in force ; and is the Bafis of all the Ele *■-*"!: therein mentioned, excepting Noblemen and their Vaflals. A moie • ■^«" am' imequlvocal Authority upon the Point now under confideratioi- .annot be figured. Refolutlons III- So flood the Law and the Pra£lice, with refped to the eldeft and Lntries 5Qj^g Qf Peers, when the followlns; Entry was made in the Minutes or 111 the Jour- o j ■nalsofPar- Journals of the Scots Parliament: "Edinburgh, the 23d of April, " 1685, liameiu, re- ( ^7 ) " 1685, In refped, the Vifcount of Tarbat's eldefl: Son, eleded one of '''^i^e to the *' the Commiffioners for the Shire of Rofs, by rcafoji that his Father is Pe^rs eldcft " nobilitated. cannot now reprefent that Shire, Warrant was given to ^!:"^' '*'"'* \ ' n Ublerva- " the Freeholders of that Shire to meet and eledl another Perfon in his tions. " Place." Upon this Refolution, or Memorandum, it fhall only be obferved here, that the Vifcount of Tarbat was Sir George Mackenzie of Tarbat, a noted Courtier and Favourite of James II. of England, and VII. of Scotland, who, at the Beginning of his Reign, raifed him to the Dignity of a Vifcount. Lord Tarbat held the Office of Regifter, and as fuch, was Clerk of the Parliaments, and kept and framed the Ads and Minutes. This Entry is made on the firil Day of Meeting ; and tlie Terms of it are taken notice of in no Writer at the Time, nor is there any Rcafon to fuppofe that it was attended to. A new Eledion for Rofsfliire took place, and therefore it muft have been known that Lord Tarbat's Son had vacated his Seat ; but on what Account he vacated, might be known to nobody, nor had any one Occafion to inquire. It is undeniable that the Members of the Scots Parliament were in ufe to furrender their Seats upon the moft frivolous Pretences. In the County, for which he fat, a plaufible Reafon would occur : the whole Eflatc of the Family, a Part of which made • Quali- fication of the Vifcount's eldefl Son, was on the Evj *. ' -jeing dif- joined from that County, as it adually was, within . Weekr. after. All the Hiftorians and Writers agree (and it is particularly ftated by Sir George Mackenzie of Rofehaugh, in his Obiervauons on the Ads of Parliament), that it was the Objed of James VL and his c -icreflbrs to diminifh the Influence of the Nobility, and to thro a^ Weight ..0 the Scale of the Commons in Parliament. To introduce a I'recedent, for depriving the eldefl: Sons of the Peers of their Right to fit in Parlia- ment, was agreeable to this Syftem ; and no Period could be more favourable for it, than this of 1685, as no Minifter could be more pliant than Lord Tarbat. The Charader of this Parliament, in which C he ( i8 ) he was one of the chief Rulers, is given by a fingle Stroke of Mr. Hume'sHif- plume's Pen : " No Courtier, even the moft proftitute, could go Vol.'viii. " farther than they, towards a Refignation of their Liberties." And P* '37' <^ne of the Articles of Grievances voted at the Revolution was in thefe "Words : " That moft of the Laws enadted in the Parliament j4?ii3o 16S5, " are impious and intolerable Grievances." The next, and only other Refolution of the Scots Parliament, refpediiig this Subje«fl, is entered in the Journals of the Meeting of the Eflates or Convention Parliament 1689, in the following Words: " Edinburgh, i8th March 1689, The Meeting of the Eftates having " heard the Report of the Committee for Elections, bearing, that in " the controverted Election for the Borough of Linlithgow, in Favour " of the Lord Livingfton and William Higglns, it is the Opinion of " the Committee, that William Higgins's Commiffion ought to be pre- " ferred ; JirJIy in regard of Lord Livingfton's Incapacity to reprefent a *' Borough, being the eldeft Son of a Peer ; fecondly, in refpedl William *' Higgins was more legally and formally elected by the Plurality of " Votes of the Burgefles, they have approven, and approves, the faid " Report, in both the Heads thereof, and interpones their Authority " thereto." Upon this Cafe, it is to be obferved, that the Petition of Mr. Hig- gins is extant ; and though it is drawn with anxiety, and evidently the Work of no mean Counfel, entering at large into the Proceedings and the Legality of the Votes given for Lord Livingfton, yet the Objection of Incapacity is not taken ; a Proof that it did not occur to the Counfel, or was not confidered as tenable Ground, and that the prior Refolution, in the Cafe of Lord Tarbat's Son, was not known, or not held to be a legal Precedent. The Incapacity appears to have been a Lord Bal- Dlfcovery of the Committee ; and we know from the Hiftorians and An- ml^rl^'.^ S>' "^lifts of that Period, that Party then ram high, and iLowed itfelf particu- moirs John Dal- larly in the Decifion of controverted Eledions. The Revolutionifts, or ditto. Whigs, had the Majority, and were refolved to preferve it, by ftarting 9 every ( r9 ) every Objedlion to thofe of the other Side. Lord LIvingfton was a Tory, and adually in arms for King James. Higg'ms was of ai\ oppolite Complexion, and foon after a Prelbyterian Clergyman. It does not appear that any Defence was fet up for Lord Livingfton ; and it is certain he was not prefent ; for the next Day there was a Procla- mation iffiied, dating that he was at the Head of a Body of Men near Linlithgow, and requiring him to furrender. It may be added, that the Refolution did not pafs in a regular, Parliament, but in the Convention of the Eftates affembled at the Revolution, a Time ill adapted for an Examination into l^Jfer Matters of Right. We pafs next to the Period of the Union. By the 22d Article of that Treaty, it was agreed. That the Number of Reprefentatives for Scotland, in the Honfe of Commons of the Par- liament of Great Britain, fliould be forty-five ; and that thefe were to be eledled in fuch Manner as fliould be fettled by an A£l of the Parlia- ment of Scotland, which Aft was declared to be as valid as if it were a Part of and engrofled in the Treaty. A Bill was accordingly brought into the Parliament of Scotland, and at laft paiTed into a Law, A£l 8th, for fettling the Manner of ele£ting the fixteen Peers, and forty-five n. Anne's Commoners, to reprefent Scotland in the Parliament of Great Britain. Parliament. While the Bill was under confidcration, a Motion was made, to infert a Claufe or Declaration, in thefe Words : " That no Peer^ nor the ** eldeft Son of any Peer, can be chofen to reprefent either Shire or *' Burgh, in that Part of the United Kingdom, in the Houfe of Com- *' mons." This arofe from a prevailing Notion, that the Peers not eleded to reprefent the Nobility in the Houfe of Lords of Great Bri- tain meant to claim the Privilege of being eleded into the Houfe of Commons. The Motion occafioned a great Debate ; and it was moved, in place of thefe Words, to infert the following : " Declaring *' always, that none fhall eledt or be eledted to reprefent a Shire or Burgh *' in the Parliament of Great Britain, from this part of the United *' Kingdom, except fuch as are now capable by the Laws of this King- C 2 « dom ( 20 ) *' dom to ele£l or be ele£led as Commiirnners for Shires or Burghs to " the faid Parliament." It was put to the Vote, V/hether the firjl or the fecond Claufe (hould be adopted ? and the Majority decided for the fecond. In the Scots Parliament, this was the conftant Mode of determining between two oppofite or different Propofitions ; and in this Cafe, it was agreed, That the Votes fhould be marked, and a Lift of the Members, Ihowing how they feverally voted, recorded, and printed. It appears, by the Lift, that there voted, FortheyJ^ow^Claufe, — Officers of State * — 6 Peers - - SS Reprefentativcs of Counties 5 Reprefentatives of Burghs 20 Total 86 For ihtfrj Claufe, — Officers of State - i Peers - - i Reprefentatives of Counties 47 Reprefentatives of Burghs 23 Total 72 Majority 14 Froio. iiciii-t V lo ji-'. , ai. That the Peers confidered xht fecond Ciaufej -vhich vsas adi'pted, as not excluding their eldeft Sons; and fatisfied witn • • ^' '^r ^/O, " a Privilege to fit in the Parliament of Scotland^ and to hear the Tranf- *' aEliotu in the Meetings of the E/lates of the Kingdom^ in order to ft *' them for being icortby Members of that auguf JlJJhnbly^ whcn^ upon " their Fathers'' Death, they floould ft in their Bench ; and that, in " ancient Times, they tvere allotved to ft and vote in Parliament as " Proxies for Peers. But although, for a long Time before the Union, " the eldeft Sons of Peers were not allowed to fit in the Parliament of " Scotland as Reprefentatives either of Shires or of Borough?, the *' Records afford the moft complete Evidence, that, in more ancient D 2 « Times, ( 28 ) " Times, and before the R.eprefentation of Counties canie tobethorough- *' \y eftabiiflied, they fat in the fame Parliaments in which their Fathers *' attended as Peers. Inftances of this are to be found in tlie Parlia- *' ments 1478, 1481, and 1484; and in the Lift of the Parliament 1560, " given in Keith's Hiftory, Page 146, we find William Mafter of Mari- " fliall, John Mafter of Maxwell of Terriglis, Patrick Mafter of Linde- *' fay, Henry Mafter of Sinclair, and William Mafter of Glencairn. " Perhaps they fat on thefe Occafions in virtue of their happening to he " poflefled of landed Property ; and although we meet with no " explicit Enadlment of the Legiftature aboli£hing this Pradice, no " Inftances of its being continued, after the laft mentioned Period, are to *' be found in the Records. It is alfo certain, that, for a confidcrable ** Time before the Union, the eldeft Sons of Peers were underjlood to he *' incapable of reprefenting either Counties or Boroughs \ and as the " A£t 1707, Cap. 8. declared that none fhould be capable to ele£l: *' or to be elected as Reprefentatives of Shires or Boroughs in Scotland, *' but thofe who were entitled to that Privilege by the Law^s and Con- *• ftitution of Scotland, they were thereby effectually debarred from '* having any Voice in the Ele£tion of the 45 Commoners to be re- " turned from that Part of the United Kingdom to the Britilli Par- " liament ; and a Declaration to that EffeiH: was accordingly made by ** a Refolution of the Houfe of Commons in the Parliament of Great " Britain, held in 1708." It is worthy of Obfervation, that Mr. Wight, after laying down the Propofition, That the eldeft Sons of Peers are incapable, refers to Mr. Spottifwoode for the Reafons, without giving any Opinion as to the Solidity of thofe Reafons, and plainly not wilhing to have it fup- pofed that they met with his entire Approbation. What Mr. S )0t- tifwoode has faid, and Mr. Wight has added, as from himfelf, in the Paflage juft quoted, fliall be confidered in the Order in which the feveral Particulars are there ftated. I. The ( 2g ) rft. The eldejl Sons of Peers are qtioft Peers of the Realm. It Is not eafy to annex an Idea to the Phrafe quaji Peers, which is certainly no technical Term, and it is believed occurs no where but in Mr. Spot- tifwoode. According to him, they were Peers, and no Peers. Peers without one effential Privilege of the Peerage ; in every Rei'pedl, and in Law, upon a Level with the Commons, except having Titles, by Courtefy, and walking firft in a Proceffion. It is quite ludicrous to afTign this as a Reafon for their being excluded from having Voices in Parliament. 2d. They have a Precedency allotted to them. It would be unneceffary to fay a Word on this, even if the eldefi; Sons of Peers were the only Coin;noners who had Precedency allotted to them. But what does Mr. Spottifwoode fay to the Cafeof the younger Sons of Peers, and many others,- who have Precedency ? What would the Man who could alTign fuch a Reafon for the fuppofed Exclufion, have faid to the Cafes of Lord Strathnaver and Lord James Murray ? 3d. By their Birth they e7ijoyed the Privilege of Jit ting in the Par- liament to hear the TranfaHions. If this were true, it could afford no Reafon for denying them an ejfficient Seat when poffeffed of a Quali- Ijcation ; but there is no Authority for faying they had the Privilege by their Birth. They were admitted to be Auditors by the Favour of Parliament, jufl; as the Houfe of Lords, at this Day, permit the eldeft Sons of Peers and others to ftand behind the Throne. This appears by an Adt or Refolution of Parliament in 1662, which it would be unne- ceffary to quote here, were it not of fome Confequence in another Part of the Argument, as it proves. That the eldeft Sons of Peers were not in the Language of Parliament called Noblemen, or meant to be defcrlbed by or comprehended in that Term when ufed. It declares that " None (hall be admitted to ftay in Parliament but the " ordinar Members of Parliament, viz. The Archbilhops, Bifhops, " Noblemen, Officers of State, Commiffioners from Shires and Burghs, " aoid the Clerk Regifter, Deputy, and Servants employed by him " to ( 30 ) *' to ferve in the Houfe ; and, bcfides thefe. Admittance is alloived to " the eldejl Sons, and appearand Hdrs male of Kobleinen, to the Senators " of the College of Juftice, to the Knight Marifhall, &c. And it is " ordained, that none prefume to fit in the Benches, y2zi;^ the Nobility " and Clergy ; that the Officers of State fit on the Steps of the Throne; *' that the Commiflioners of Shires and 13urghs fit on the Forms *' appointed for them ; that Noblemen s eldejl Sons and Heirs aforefaidy *''' Jit on the lower Benches of the 'Throne; that the Lords of Seffion fit " at an Table which is to ftand betwixt the Throne and the Cornmif- *' fioners of Burghs." Here the Terms Noblemen and Nobility are applied to thofe who are themfelves Peers in the ftridleft Senfe, in exprefs diflindion from their eldeft Sons. Let this be compared with the Kledion-Law of 1661, referred to above. 4th. In ancient Times they -were allowed to Jit and vote in Parliament as Proxies for Peers. Of this Privilege, though it has been commonly aflerted, there is no Evidence whatever. On the contrary, there is the ftrongeft Prefumption that it never exifted. The AQs of Parliament 1425 and 1503 appear to have allowed in early Times all Members 6f Parliament to attend by Proxy; that of 1587, C. 34, to have put a Stop to it; and that of 1617, to have allowed it again to Peers and Prelates, But no Conftru£lion of any of the Ads, or Commentary on rhem, authorifes the Idea that the eldeft Sons enjoyed a Diftindlion in this Refpedt. The Rolls always mention when any Perfon attended by Proxy, and fometimes give the Names of the Proxies of Peers. In feveral Inftances the Proxies were private Gentlemen, Commoners of 110 Rank ; and not one Injlancc is found of an eldejl Son being Proxy for his Father. But even if it appeared that Peers eldeft Sons Ibmc Times fat as Proxies for their Fathers, it is evident that they frequently fat in a more independent Capacity ; for, in near Half the Inftances of their being marked as attending, their Fathers ivere alfo prcfetit-. 4 So ( 31 ) So much for Mr. Snottifwoode ; who, after this DifcufTion of his Rcafons, will not probably be quoted, on the other Side, as an Autho- rity. It is more probable, that the eldeft Sons of the Peers may refer to his Book, as proving how little the Subjedt was underftood in 1708, when a Scots Advocate, profefiing to write on the Lavir of Eledions in 1 710, difcovers fuch profound Ignorance of Hiftory and the Records J of Parliament. After quoting Mr. Spottifwoode's Reafons in Support of the Rule, That Peers eldeft Sons are incapable, Mr. Wight's Acquaintance with the Records led him, and his Candour obliged him, to flate Fads which prove that two Centuries ago, when all thofe weighty Reafons fubfifted in full Force, the Rule was unknown. He fays truly, " That " there is the moft coviplete Evidence^ that in more ancient Times ^ and before *' the Reprefentation of Counties^ the eldejl Sons of Peers fat in the fame *' Parliametits in "which their Fathers attended." Confequently, they could not have been fitting as their Fathers' Proxies; and by fittings Mr. Wight muft mean as conftituent Members, and not attending as Auditors only. He knew that this alfo was completely proved by the Records. Inftances being given, Mr. Wight proceeds thus : " Perhaps they " fat on thefe Occaftons in virtue of their happening to be pofcffcd of " landed Property^ Mr. Wight felt the neccflary Inference from the Fails he had ftated ; but it is evident that he confidered the Point as fettled by the Determinations of 1685, 1689, and 1708, and doubted of the Propriety of difturbing thofe Determinations. He knew that the Peers eldeft Sons muft have been entitled to fit when pofleffed of Pro- perty ; for nothing is more certain, than that the Parliament of Scot- land was an Aflembly of the Landholders, Tenants of the King ; and the legal conftitutional Idea was, not that they reprefented the People, or particular Orders of the People, but that they reprefented the Land. The Introdudion of Peers by Patent or Inveftiture, without Reference to Territory, and the admitting of certain Officers of the Crown to Seats in Parliament, ( 52 ) Parliament, were Innovations of the Syftem ; but with thel'e Exceptions, and at the Time when the Records prove that certain of the eldeft Sons of Peers were Members, there is not the Shadow of Reafon or Authority for imagining that any Perfon fat, who had not in himfelf a Qualification in freehold Land, by virtue of which he was a Member, and by virtue of that alone. It cannot be too often repeated, that the Attendance was a feudal Obligation, and not a Privilege ; an Obligation, which none but thofe liable to it, could be called on to fulfil, or could think of difcharging. It is undeniable, that eldeft Sons of Peers oc- cafionally attended : It is equally undeniable, that they attended as con- ftituent and efficient Members, being eledted of Committees. Nothing Ihort of abfolute Scepticlfm can therefore avoid the Conclufion, that the Peers Sons fo entered on the Rolls as attending, fat in their own Right as Freeholders, by virtue of their private Properties, in the fame Way as if they had been in the broadefl Senfe, Commoners, or Sons of , .Commoners. Mr. Wight fays, this -was before the Reprefcntation of Counties came lo be thoroughly eflablifhcd^ meaning by the A£l 1587 ; and he takes Notice of the negative Fa£t, of there being no Inftance of a Peer's eldeft Son fitting after that Period. He admits at the fame Time, that there is no expHcit Enadment of the Legiflature abolifliing the former Pra(fl:ice : The Word explicit is here introduced, as the Word perhaps is in the firft Part of the Sentence. If it was meant to infinuate that there was feme uncxpUcit Enadment, or fome A£l pointing that Way Mr. Wight fhould have referred to it. It has been already Iliown, that the A£t 1587, and all the fubfequent Satutes, fo far from abolilhing the Right, confirm it. If the Ad 1587 made no other Alteration whatever upon the Conftitution of Parliament, but that of excluding Ahe perfonal Attendance of the LefTer Barons or Freeholders (under the Degree of Prelates and Lords of Parliament), requiring their Attendance an Time to come by Reprefentatives chofen by all thofe who before had a Title, or were obliged to attend in Perfon ; and if the eldeft Sons of ( 5^ ) of Peers were before that A£l obliged to attend when poflefled of Free- holds, and adually did attend, but were by the AO: excluded as Freeholders, in common with the general Mafs ; it is impoflible to argue, that they were not after the Adt, and under the pre- cife Terms of it, entitled to eledt and to be elected Reprefenta- tives of the Freeholders. If fuch be the fair and obvious Conftruc- tion of the AQ. 1587, where is the fubfequent A(St which either exprefsly or by Implication took away the Right ? No Inftance can be produced of a Peer's eldeft Son fitting in the Scots Parliament, by Eledion, after the Year 1587. But is it a necefl'ary Conclufion, that this arofe from their being confcious, or from its being underftood that they had no Right ? It is otherwife and fuffi- cienlly explained by the Principle fo often alluded to ; tbe Obligation to attend bad ceafcd. There was no Obligation to be eledled a Repre- fentative. Attendance had hitherto been confidered as a Burden from which the Vaflals were glad to be relieved, of which the AQi 1587 aftords Evidence ; for, according to it, his Majefty, in difpenfrng with the Attendance of the LelTer Barons, was beftowing a Fa- vour, and he granted it upon Condition that the Freeholders obferved certain Promifes they had made him ; the Nature of which are now unknown. In the fame Light the being Reprefentative was con- fidered for a long Period ; the Reprefentative was entitled to his Charges, and regularly demanded them. There is not a grofler, and yet not a more common Error, than to eftimate the Manners and Sentiments of a former Age by thofe of our own. To the People of the prefent Times, it feems a natural and almoft irrefiftible Conclufion, from there being no Inftance of the eldeft Sons of the Peers fitting in Parliament, for more than a Century, that they had no Right, or that if they ever had, it muft have been taken away ; but when the Circumftances are confidered, and the Views and Sentiments of the different Times are compared, the Conclufion is altogether fallacious and erroneous. It E was ( 3+ ) was no Obje£l during the greater Part of the Period in Queftion for any Perfon to obtain a Seat in Parliament. It was then fhunned as much as it is now coveted ; and it was lefs an Obje' de Halis Magi- de Erjkyn Dns de Pettrufy Dns de Caldor Dns de Ochiltre Willm"' Edmondftoiin de Duntreth Burgorum CommilTaiii Berwick Jedwort Selkirk Peblis Lanark Dumfres Wigtoun Kirkudbry^ Aire Irwin Dumbretain Strivelyne Linlithgw Edinburgh Hadingtoun North berwic Dunbar Kingorne Innerkethin Caraile Con per Saintandros Perth Forfare Dunde Brechin Monthrofs Abirdcnc Dns ( 42 ) Dns de Auchinkk Dns de Halkete Dns de Dalwoulfy Dns de Haltoun Dns de Cragy Walacc Dns de Lufe Dns de Srobhall Dns de Tulibardin Dns de Elliotiftoun Dns de Halkerifloun liddale Dns de Leflalria; •& N. B. Under the Title Barcnes none oF^'^be Nobility are included. Dcminus de Yeflerj is the Laird of Yefterj or Owner of the Lands of Yefter. There was no fuch Title of Nobility as Yefter at this Period. There never was fuch a Title of Nobility as Bafs. And thus the Mafters of Hales and Erfkin, eldeft Sons of the Lords Hales and Erfkin, are here clafied as Lejer Barons, after the Lairds of Yefter and Bafs. The Original of this Roii, and many others, is iin Columns, and blank Spaces left, as here reprefented. Los Angeles This book is DUE on the last date stamped below. Form L9-25wi-9.'47(A5618)444 IJ^nVERSITY OF CALIFORNIA AT T r»<5 A ■ 661 eldest sons of 44 the peers of Soot- land. uc souiHFRM REGint.AL uawfTr' =;ciirv D 000 743 875 7