Is a Scottish baron a commoner? Not in Scots law

In English law everyone below a peer is a commoner, however grand. Scots law drew the line lower: its nobility took in the barons, the knights and the gentlemen. The Union of 1707 sent the barons’ members to the House of Commons, but it did not change the law of rank. This paper sets out both meanings of “commoner” and the record for each.

The short answer

• “Commoner”, in the sense of anyone who is not a peer, is English law. Blackstone wrote in 1765 that all below the peers are “in law peers, in respect of their want of nobility”.
• Scots law drew the line lower. Sir George Mackenzie, Lord Advocate, wrote in 1680 that the nobility is “greater” and “lesser”, and that “Under the Word Baron all our Nobility are comprehended”. An Act of 1540 names “every noble man, such as an earl, lord, knight and baron”.
• Noble, though not peers of Parliament. Mackenzie: “though all these be not Peers of Parliament, yet they are all Peers to one another”. A nobleman had to accept a gentleman’s challenge to a duel as his peer.
• A barony ennobles. Mackenzie: “a Barony, as we call it, do ennoble; for Baronies are establisht only by the Prince’s Erection or Confirmation.”
• Before the Union, Scots did not use the word for rank. A “commoner” was an arbitrator. The common people were, in Mackenzie’s word, “Plebeians”.
• “Commoner” measures the peerage, not nobility. A foreign baron in London is not called a commoner. A British one was: Lionel de Rothschild, a baron of the Austrian empire, sat in the House of Commons from 1858.
• The Union changed Parliament, not Scots law. Scotland’s forty-five members went to the House of Commons, and the printed Act of 1707 that settled their election calls them “commoners”. The Treaty kept Scots law.
• The Lyon Court said so in 1943. It found that the minor barons are “recognised as a ‘titled nobility’”.

Two meanings of “commoner”

England divides its people in two. Blackstone, the great writer on English law, put it like this in 1765:

“The commonalty, like the nobility, are divided into several degrees; and, as the lords, though different in rank, yet all of them are peers in respect of their nobility, so the commoners, though some are greatly superior to others, yet all are in law peers, in respect of their want of nobility.”

William Blackstone, Commentaries on the Laws of England, 1765

In English law, then, the nobility is the peerage. “The first dignity after the nobility”, Blackstone goes on, is a knight of the Garter. Baronets, knights, esquires and gentlemen are all commoners, and that is how the word is used today: a commoner is anyone who is not a peer. Even so, a page later Blackstone still calls the baronets and knights an “inferior nobility”.¹

Older Scots had no such word. The Dictionary of the Older Scottish Tongue, which covers Scots up to 1700, gives “commoner” only as an arbitrator. In 1591 Edinburgh named two of its assessors as arbitrators (“commoneris”) for the town in a dispute with the Kirk of Leith.² The common people were “the commoun”, and one of them was “a commoun”.³

“The greater and the lesser Nobility”

Scotland’s rule was set down by Sir George Mackenzie of Rosehaugh, Lord Advocate, in his treatise on precedence of 1680.

The lords of parliament are the greater nobility. Knights and gentlemen are the lesser. All of them are “Peers to one another”, though not all are “Peers of Parliament”.⁴ Mackenzie says England divided its nobility the same way, and an English writer had said so a century earlier: Sir Thomas Smith, in 1583, called England’s knights, esquires and gentlemen “the second sort of gentlemen which may be called Nobilitas minor”.⁵ English law later drew the line at the peerage. Scots law did not.

Then Mackenzie gives the word that covers them all: “Under the Word Baron all our Nobility are comprehended”. “Baron” was once the common name of the whole nobility, as “peer” is now, because the greater nobles held baronies too. In Lord Clyde’s words, Scotland distinguished “the greater barons and the lesser barons, the former acquiring such titles as Duke or Earl”.⁶ The dukes, earls and lords were the great barons, and the small barons had no greater title: “Now the Lords are called the great Barons, and the rest are called small Barons”.⁷

His proof is the wording of the old Parliaments: James V’s first Parliament sat with “the prelates, the barons and the commissioners of the burghs”, and Robert I’s with earls, barons “and other great men”, so that there were great men below the barons.⁴

The statute book agrees. An Act of 1540 on arms and armour begins with “every noble man, such as an earl, lord, knight and baron”.⁸

What made a baron noble was the Crown’s grant, not his acres. Owning land, Mackenzie writes in his Science of Heraldry, “doth not nobilitate in all Cases … for else a rich Man might ennoble himself”. But “such Feus as had a Jurisdiction annext to them, a Barony, as we call it, do ennoble; for Baronies are establisht only by the Prince’s Erection or Confirmation.” Those who held their lands of the Crown “were called Lairds”; those who held of a subject, “though they were large, and their Superior very noble, were only called Good-men”.⁹ See Lairds, lords and barons.

Below the gentlemen came everyone else. Mackenzie’s word for them is “Plebeian”. He asks, for instance, whether “a Knight Baronet’s Lady marrying a Plebeian, could thereafter recover her Dignity if she marry a Gentleman”.¹⁰

A baron by barons

Nobles were judged by their equals. Quoniam Attachiamenta, one of the old books of Scots law, says that no man should be judged by a man of lower rank than his own peer: an earl by earls, a baron by barons.¹¹ “Peer” here means an equal in rank, and a baron’s peers were barons.

David Hume, professor of Scots law at Edinburgh, put it plainly in 1800: “the order of noblemen and other barons, or immediate vassals of the Crown, were truly one and the same, and therefore peers to each other in the strict sense of law”.¹² The baron’s right to be tried by men of his own rank outlived the Union: see Trial by barons.

A duel at Carberry Hill

Rank decided who could fight whom, as well as who could judge whom.

On 15 June 1567 the Queen’s army faced the lords who had taken up arms against Bothwell, at Carberry Hill near Musselburgh. Bothwell, the Queen’s husband, rode out “with a defie to any that would fight with him”. James Murray took it up, and Bothwell refused him, “alleadging he was not his equall”. Murray’s elder brother then offered himself.¹³

“William Murray, Laird of Tullibardin, answered, That he would fight with him, as being his better in estate, and in antiquitie of house many degrees above him; yet Bothwell refused him, saying, That he was not a Peer of the Kingdom, as he was”

The History of the Reformation in Scotland, Book V, printed in 1644

Lord Lindsay offered next. Bothwell, “seeing that there was no more subterfuge nor excuse”, had the Queen forbid the fight, and she surrendered to the lords the same day.¹³

Bothwell drew the line at the peerage, and it kept him out of the fight. A century later Mackenzie set down the rule the other way: “a Nobleman is obliged to accept of a Challenge from a Gentleman as his Peer, where Duels are lawful”.⁴ That did not make a baron a peer of the realm; it meant a nobleman could not refuse a gentleman’s challenge (a gentleman being untitled nobility, if armigerous) as beneath him.

A Parliament without commons

Scotland’s Parliament sat as one house. Its estates were the clergy, the barons and the burgesses. There was no estate of commons.

The small barons owed attendance in person, and in 1428 each absent baron or freeholder was “adjudged in an amercement of £10 for their contumacy”.¹⁴ For a small baron with a small estate, far from Edinburgh or Perth, the seat was a burden: the journey was long, and the fine for missing it, the “old unlaw”, could be levied at will. An Act of 1428 let each shire send two or more commissioners instead, but it “remained practically inoperative”;¹⁵ an Act of 1504 spared the smaller men, those within 100 merks of land, from being “compelled to appear in person”.¹⁶ The historian R. S. Rait read these Acts less as taking the barons’ seats away than as “a protection from the occasional arbitrary employment of a partially obsolete penalty”.¹⁷ In 1587 James VI revived the shire commissioners, whose attendance would “relieve the whole remaining small barons and freeholders of the shires of their suits and presence owing”.¹⁸

Whether that ended the barons’ own right to sit was argued for the rest of the century. In 1673 the barons pleaded that the Act did not bar them, but only excused their absence.¹⁹ Mackenzie called them “originally heritable Counsellers to the King, as Members of Parliament, and not debarred”.²⁰ In his Science of Heraldry he put it more plainly: the barons “were Members of Parliament with us, as such, and never lost that Priviledge, though for their convenience, they were allowed to be represented by two of their number”.²¹ The claim was made to the end. On 7 January 1707, as the Union was voted, George Lockhart of Carnwath protested that nothing in the treaty “shall prejudice the barons of this kingdom from their full representation in parliament as now by law established, nor in any of their privileges”.²²

What the Union changed

The Union of 1707 made one Parliament, with a House of Lords and a House of Commons. Article XXII fixed Scotland’s share: sixteen peers in the Lords, and “45 the number of the Representatives of Scotland in the House of Commons”.²³ The printed Act of 5 February 1707 that settled how they were to be chosen calls the forty-five “commoners”. For the first Parliament of Great Britain, they were to be “chosen by the peers, barons and burghs respectively”.²⁴

From then on a baron who sat in Parliament sat in the Commons, as baronets and knights did. The Scottish Parliament chose its thirty shire members on 13 February 1707 under the heading “Of the barons”, among them “Hugh Rose of Kilravock”;²⁵ at home he was “baron and laird of Kilraock”, and Lord Lovat wrote to his son, “My dear Baron”.²⁶ In Parliament’s sense the barons became commoners in 1707, in a House of landowners chosen by landowners: see Did Scottish barons sit in the House of Commons?. Nothing else in the Treaty made them so.

• Article XXIII protected the peers. They became peers of Great Britain, with “Rank and Precedency next and immediately after the Peers of the like orders and degrees in England”, and were to be tried as peers.²⁷ No article spoke of the barons.
• Article XVIII kept Scots law. No alteration was to be made “in Laws which concern private Right except for evident utility of the subjects within Scotland”.²⁸ The law of barony, and the Lyon Court’s law of rank, went on as before.
• Article XX kept the barons’ courts, with the other heritable jurisdictions, “as Rights of Property”.²⁹ See The Treaty of Union and the baronage.

A foreign baron in London

A Spanish or German baron in London is not called a commoner: the English rule of two classes applies only to the Crown’s own subjects. A British subject with a Continental title was a commoner like anyone else.

Lionel de Rothschild inherited from his father the title of a baron of the Austrian empire, granted at Vienna on 29 September 1822. In 1838 Queen Victoria gave him licence to “assume and use the title thereof in this country”.³⁰ He was elected for the City of London, and on 26 July 1858 “Baron Lionel Nathan de Rothschild” was sworn and took his seat in the House of Commons.³¹ The Crown Office called him “Lionel Nathan de Rothschild, commonly called Baron Lionel Nathan de Rothschild”. In the same notice it used the same form for a duke’s son, “Alfred Spencer Churchill, commonly called Lord Alfred Spencer Churchill”.³² Courtesy lords sat in the Commons, and so did the Austrian baron. The family left it for the Lords only when his son was made a peer in 1885, as Baron Rothschild of Tring.³³

So in English usage “commoner” measures the peerage, not nobility. Debrett’s said as much in 1921. Foreign titles, it noted, “afford their holders no precedence whatever in this country”, and the English tables are silent on Scottish barons too. But it placed the Continent’s barons, the German freiherrs, “with the families in England who are also of the nobiles minores (knights, esquires, and gentlemen)”.³⁴

Noble after 1707

Scots writers after the Union kept Mackenzie’s line.

• 1742. Alexander Nisbet’s System of Heraldry repeats Mackenzie’s division of the nobility into greater and lesser word for word, though not his sentence that “Under the Word Baron all our Nobility are comprehended”.³⁵
• 1800. Hume writes of the barons as peers of the noblemen, and of the privilege at trial: “To this extent the privilege still maintains itself”.³⁶
• 1835. The Lyon Court grants George Robert Ainslie of Pilton, “heir and representative of the Feudal Barons of Dolphinton”, a cap of maintenance in his crest, “the cap as being indicative of his descent from the ancient barons of Dolphington”.³⁷
• 1930. A Lyon Court birthbrief describes the House of Innes of Learney as “of the rank of minor barons or untitled nobility of Scotland”.³⁸
• 1943. The Lyon Court corrects the description. “With regard to the words ‘untitled nobility’ employed in certain recent birthbrieves in relation to the Minor Baronage of Scotland”, it “Finds and Declares that the Minor Barons of Scotland are, and have been both in this nobiliary Court and in the Court of Session recognised as a ‘titled nobility’”.³⁹ Before 1943 the barons were sometimes incorrectly called untitled nobility; the Lyon Court found them a titled nobility. See Untitled or titled nobility?
• 1949. What was left of the privilege, a jury with a majority of landed men, is abolished, a year after the peers’ privilege.⁴⁰
• 1945 to 2007. From Innes of Learney’s time, Lyon Court grants of arms close by receiving the grantee and his successors “amongst all Nobles and in all Places of Honour … as Nobles in the Noblesse of Scotland”. A grant of 1952 made a corporate body “an incorporation noble in the noblesse of Scotland”; the clause is in a grant of 1984, in Lord Lyon Blair’s patent of 27 July 2007 to the Baron of Ballencrieff, and in a corporate grant of October 2007. It was left out of grants made after 2007.⁴¹
• 2000. The Act of 2000 keeps the dignity: “nothing in this Act affects the dignity of baron”, and a dignity includes “any quality or precedence associated with” it.⁴²

Why people get it wrong

• English usage. Parliament and the press use “commoner” for anyone who is not a peer. In that sense a baronet, a knight and a Scottish baron are all commoners, and for England the usage is right. The same press calls a baronet an aristocrat, and a Scottish barony an “ancient noble title” or an “ancient aristocratic title”.⁴³
• The House of Commons. After 1707 the barons’ members sat in the Commons. By 1739 the Lords of Session themselves spoke of the old Scottish Parliament’s “peers and commons, who sat together in one house”.⁴⁴
• The books. Burke’s Landed Gentry and its kind listed Scottish barons among the landed gentry, an English category, until Burke’s Peerage set them beside the peers, baronets and chiefs in its 107th edition (2003).⁴⁵

Rank in Scotland

The Noblesse of Scotland, in order of precedence

English usage counts everyone below a peer a commoner;¹ but UK law includes Scots law.²⁸

In 1945 the Lyon Court declared a Scottish baron “of rank equivalent to that denominated Hoch Adel”, the Continent’s high nobility.⁴⁶

In Scotland, greater or lesser, all are noble: “though all these be not Peers of Parliament, yet they are all Peers to one another” (Mackenzie, 1680). Rank decided who could fight or marry whom, yet a baron, even a gentleman as untitled nobility, counted as a duke’s peer: he could challenge him to a duel and marry his daughter.⁴

The table is the one on Scottish Baronies, Explained, where each row carries its sources. The order is the one Lord Lyon Innes of Learney drew from the record in 1945: “Their precedence was thus after Knights and before Esquires.”⁴⁷ See “Never ceded”: the precedence of a Scottish baron.

The Roll and the Pledge

Nobility in Scots law goes with the dignity, and the dignity has to be shown, not assumed.

The Baronage of Scotland Association keeps the Roll of Scottish Barons, which enters a holder only on evidence, and offers the Pledge: an undertaking, in honour and not in law, to preserve a barony within the family for future generations and to uphold the Baronial Code of Honour. The precedent is the baronets’ Roll of 1910.