Were Scotland’s barons peers? The word before the Union

Today “peer” means a member of the peerage, and a Scottish baron is not one. Before the Union the word had an older sense, and in that sense the barons were peers. This paper sets out both senses from the record, and where the limit lies.

The short answer

• “Peer” meant an equal in law. The Dictionary of the Older Scottish Tongue gives that as the word’s first sense, with a court record of 1564 that called “barons and peers” to an assize.
• A baron’s peers were barons. The old law held that no man should be judged by anyone below his own peer: “an earl by earls, a baron by barons”. In 1667 the Court of Justiciary upheld a baron’s objection to jurors who were not barons, and ordered a new jury, most of it “of the Laird of Spott’s own quality, namely barons holding of the King”.
• The lords and the barons were one order. Mackenzie, 1680: “Under the Word Baron all our Nobility are comprehended”; the greater and the lesser nobility “are all Peers to one another”. Hume, 1800: “peers to each other in the strict sense of law”.
• The Crown used both senses in one warrant. Charles II gave a coronet in 1665 to “the barons and lords of Parliament”, calling them “those of the degree of peers”.
• The limit. A baron was never a peer of Parliament. The narrower sense, the titled nobility, is as old as the wider one, and since 1707 it is the only one in use.

Two senses of one word

The Dictionary of the Older Scottish Tongue records the word from the 1400s in two senses. The first is “one’s equal in rank or before the law”. A criminal record of 1564 uses it so: the trial of the lairds of Gight, elder and younger, was put off because “a sufficient number of barons and peers” did not appear to sit on the assize. In 1600 a court held that “a burgess may be a peer to a landed man not being a baron”. The second sense is “a member of the nobility of a country; in Scotland, a member of the titled nobility”. Wyntoun, about 1420, has the “peers of the parliaments”, and Knox has Bothwell at Carberry Hill in 1567 refusing the Laird of Tullibardine’s challenge, “saying that he was not a peer of the kingdom as he was”.¹

Both senses were in use through the whole period. The narrow one is not a product of the Union.

Judged by his peers

Quoniam Attachiamenta, one of the old books of Scots law, lays down that no man should be judged by one of lower estate than his own peer: “an earl by earls, a baron by barons”.² The rule was still pleaded in the 1600s. In 1613 Hew Somervell of Drum, “within the degree of a baron”, asked to be “tried by his peers, that is, by barons”; that time the jurors were allowed to sit.³ In 1667 the plea was upheld. Archibald Douglas of Spott, a baron accused of killing a man in a duel, objected to the jurors who were not barons. His counsel, Sir George Mackenzie, told the Court of Justiciary that “by our law a baron is interpreted to be of parity with a lord”: lords were judged only by their peers, and it was against reason that the same should be denied to barons.⁴ The court agreed. On 9 May 1667 the Justices found “the objection against the present jurors relevant”, and ordered a new jury, “the most part of which assize they ordain to be of the Laird of Spott’s own quality, namely barons holding of the King”.⁵ The privilege is set out in Trial by barons.

One order, greater and lesser

Mackenzie, by then Lord Advocate, gave the rule in 1680. “Nobility is divided with us, as in England, into nobiles majores & minores, the greater and the lesser Nobility. Under the greater are comprehended all such as are Lords of Parliament, under the lesser are comprehended Knights and Gentlemen; and though all these be not Peers of Parliament, yet they are all Peers to one another.” And: “Under the Word Baron all our Nobility are comprehended”.⁶ David Hume, professor of Scots law at Edinburgh, wrote in 1800 that “for long, and until the full establishment of parliamentary representation, 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”.⁷

Parliament had said as much. In 1567 the barons “ought to have vote in parliament as a part of the nobility”; in 1592 an Act names “the nobility, earls, lords and barons”.⁸

The coronet warrant of 1665

The Crown used both senses in one document. In 1665 Charles II gave the lowest rank of the peerage a coronet: a crimson cap with a gold circle and six pearls. His warrant gives it to “the barons and lords of Parliament of this ancient kingdom”, “who had place and vote in Parliament, and all other public conventions, by heritable right”, and calls them “those of the degree of peers”.⁹

The right it describes was the barons’. They owed attendance in person, on pain of a fine. The Act of 1428 excused the small barons from coming and did not bar them; Parliament declared them a part of the nobility in 1567; and from 1587 two commissioners from each shire relieved the rest of their attendance. Mackenzie: the barons “were Members of Parliament with us, as such, and never lost that privilege, though for their convenience they were allowed to be represented by two of their number”.¹⁰ At the Union the Estate of Barons chose thirty of the forty-five Scottish members, under the heading “Of the barons”. On the words, the cap was given to barons and lords alike. Mackenzie, fifteen years on, writes of it as the lords’: “the Lords, who had no Coronet till the Year 1665”. The case is set out in the precedence paper. The Association claims no coronet: a baron’s mark is the chapeau.

The limit

A baron was a peer of the lords. He was not a peer of Parliament. The lords sat by the King’s summons; the barons, after 1587, by their commissioners, though their own right to come stood until the Union. Mackenzie draws the line in the sentence that joins them: “though all these be not Peers of Parliament, yet they are all Peers to one another”. By 1707 Parliament itself used the narrow word, “the peers, barons and burghs”, and at the Union the peerage of Scotland closed. Since then “peer” in Britain has meant one thing, and a Scottish baron does not claim it. What he holds is older: a dignity that Parliament called a part of the nobility and the Act of 2000 kept by name.¹¹

England drew the line the other way. Blackstone wrote in 1765 that all below the peers are “in law peers, in respect of their want of nobility”.¹² Read by that rule a Scottish baron is a commoner; read by his own country’s law he never was. See Is a Scottish baron a commoner?

What the record does not say

• No statute calls the barons “peers”. The wide sense is in the court records and the lawyers. The Act of 1707 has “the peers, barons and burghs”: three words for three bodies.
• The warrant does not say which reading it meant. It names the barons and lords together and the degree once. Both readings are stated in the precedence paper.
• The lawyers describe the old law. Mackenzie in 1667 was arguing for a client, and Hume in 1800 wrote of a time “until the full establishment of parliamentary representation”.

The Roll and the Pledge

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.