Scottish Independence is restoration NOT secession (Part 1)

Introduction:

'Independence for Scotland; that is the restoration of Scottish national sovereignty by restoration of full powers to the Scottish Parliament, so that its authority is limited only by the sovereign power of the Scottish People to bind it with a written constitution and by such agreements as it may freely enter into with other nations or states or international organisations for the purpose of furthering international cooperation, world peace and the protection of the environment.'

SOURCE: Constitution of the Scottish National Party.

The case for Scottish independence is better understood when it is put in the context of actual historical facts and not the negative, distorting and selective arguments of its opponents. I have attempted to provide such a better understanding by spreading the most pertinent historical facts (mainly using extracts and specifying sources) over five periods of time -

Part 1: 1603 - 1702

Part 2: 1703 - 1802

Part 3: 1803 - 1902

Part 4: 1903 - 2002

Part 5: 2003 - 2012

1603 - 1702:

Union of the Crowns

The so-called Union of the Crowns is a misnomer which the following extract will clarify -

'...on 25 March 1603, James VI of Scotland became James I of England. It was a purely personal union. There were still two kingdoms, each with its own parliament, administration, church and legal system.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p.46, ISBN 0 7153 6904 0, Library of Congress Catalog Card Number 74-15792.

At this point it would perhaps be useful to explain why it was that a Scottish king was able also to become king of England. In 1503 James IV of Scots married Margaret Tudor, the daughter of Henry VII of England. Henry wanted James to end the 1295 Treaty with France (the Auld Alliance).

'However, James IV...did ultimately marry Margaret, the elder of the two daughters of Henry VII. When it was pointed out that such a marriage might lead to a union of the two kingdoms, Henry sagely observed that the greater would always draw the less and that England would be the predominant partner.

...

When James IV married Henry VII's daughter in 1503, he refused to accede to Henry's request that he should renounce the French alliance, for that would have meant the loss of freedom of action and the danger of complete domination by England.'

SOURCE: 'Scotland The Shaping of a Nation' by Gordon Donaldson, pp 38-39.

In 1509 Henry VII died and he was succeeded by his son, Henry VIII.

'...in 1512 Henry joined the Holy League which the Pope and the Emperor Maximilian had formed against France. The French naturally appealed to the Auld Alliance...'

SOURCE: 'The Lion in the North' by John Prebble, p. 160, ISBN 0 1400 3652 0.

In response to an appeal from Louis XII of France in 1513 James IV invaded England with a Scottish army. On Friday, 9 September 1513 James and the overwhelming majority of that army were slaughtered at the battle of Flodden.

'When Henry VIII joined the Holy League, King Louis was lavish with promises of what he would do to further James's crusade, and the Scots formally renewed their alliance with France (1512). Next year an English army invaded France, and James could not stand aside. The outcome was a disastrous defeat at Flodden (9 September 1513). Although James IV was under papal censures for opposing the pope's league and for breaking the English treaty, Scottish bishops and abbots stood by him as they had stood by Robert Bruce, and some fell at Flodden alongside king and nobles.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p. 40.

'...and Elizabeth undertook to do nothing to prejudice any claim he had to the English succession unless he provoked her.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p. 46.

When queen Elizabeth died James VI succeeded to the throne of England because he was her only living relative.

Parliamentary Union

Between 1603 and 1702 there were several attempts at a parliamentary union between Scotland and England.

Commonwealth

The first attempt, which occurred during the English Civil War (also known as the War of the Three Crowns) following military conquest by Oliver Cromwell, was also the most violent.

'The result of this breakdown of the personal union was the conquest of Scotland by English armies (1651). This was a union of a kind - a union by force such as had not been known since the days of Edward I. The Scottish government had collapsed in the face of the English invaders, who declined to recognize any authority not derived from their own commonwealth...The members who went from Scotland to the commonwealth and protectorate parliaments at Westminster were, almost by definition, collaborators, and a good many of them were actually officers in the English army.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p. 53,

'1652-4            SCOTLAND AND THE COMMONWEALTH

The union of Scotland with the Commonwealth of England became effective through conquest in 1651. There could be no genuinely negotiated union, and when, in 1652 Scottish commissioners gave their consent to terms of union they had in truth no alternative...'

SOURCE: 'Scottish Historical Documents' by Professor Gordon Donaldson, p. 222, ISBN 1-897784-41-4.

'For the first time since the early fourteenth century Scotland had been conquered, and Cromwell meant to make this conquest total...But it was national dignity that spoke most effectively. Glasgow showed that the separate units could not give national assent...Under the Instrument of Government at the end of 1653 Scotland was to have thirty members (the same number as Ireland) to sit with 400 English. Not even this bare allowance came to the first Parliament and those that did were largely hand-picked...'

SOURCE: 'A History of Scotland' by Rosalind Mitchison, pp. 233-234, ISBN 0 416 27940 6.

Charles II

Following the restoration of the monarchy in 1660 Charles II put forward proposals for a formal union between Scotland and England.

'...and there was on the whole a sense of relief when, with the restoration of Charles II in 1660, the existing union was dissolved...However, the conditions in which a personal union could operate successfully were not restored...In 1670 the two parliaments did appoint commissioners to consider union, but the Scottish demands for equal representation in a united parliament were quite unrealistic and the English were not ready to concede the trading rights which the Scots demanded. Negotiations broke down.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p. 54.

'...the end of army rule would mean the restoration of Scottish courts and law.'

SOURCE: 'A History of Scotland' by Rosalind Mitchison, p. 241,

'The most immediate issue was the relationship between the two nations. If the Protector's Union was to be dissolved, then, Lauderdale insisted there could be no return to the Commonwealth position with Scotland as a conquered country. Scotland must be freed from English rule, English law, and English troops.'

SOURCE: 'A History of Scotland' by Rosalind Mitchison, p. 242,

'The abortive attempt of Charles and Lauderdale to carry through a parliamentary union with England in 1669-70 had given the first big chance for opposition to develop. It was a policy that Lauderdale had known would be unpopular...'You cannot imagine what aversion is generally in this kingdome,' he told Charles. The memory of Cromwell and his fortresses was green, and England had done nothing since his time to appease Scottish feeling...Lauderdale carried out his part and got the right to nominate the Scottish commissioners, but the whole thing broke down when the Scots claimed seats in the future Parliament for every member of the Scottish Parliament.'

SOURCE: 'A History of Scotland' by Rosalind Mitchison,pp. 258-259.

William II of Scotland and III of England

'In February William accepted the throne of England for himself and his wife Mary...Even then the Scots made no offer of their crown, only a request that he undertake the administration of the country until it could decide its future.'

SOURCE: 'The Lion in the North' by John Prebble, pp. 270-271,

'A proposal to treat with England for a political union had been one of the earliest resolutions put before the Conventions of the Estates in 1689, and although it had been rejected the small support for the idea slowly grew,'

SOURCE: 'The Lion in the North' by John Prebble, p. 274.

'William's administration was unpopular in Scotland for many reasons...William found himself king over two countries with divergent economic policies and even divergent foreign policies, for the Darien venture involved a quarrel with Spain, a country which William had special reasons for wanting to keep the peace. Shortly before his death he recommended an attempt to find a solution by a closer union. It was becoming increasingly evident that Scotland was in danger of subjection not to a king of England who was also - though he sometimes seemed to forget the fact - king of Scots, but to the English ministry of the day which advised him.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p. 55.

'The series of wars that started in 1689 sent up all forms of taxation, and transformed minor customs dues into a protective wall...Scotland entered the biggest trade slump, the worst economic crisis she had ever known, and nothing was done because, as the irascible Fletcher of Saltoun said,  she was 'a farm managed by servants and not under the eye of the master'. Because of her bondage to English foreign policy, she had to let slip her overseas connections...Even the maintenance of her existing low level of economic activity depended on the English deciding that this was in their interests.'

SOURCE: 'A History of Scotland' by Rosalind Mitchison, p. 304,

'In 1689 William III had suggested Union without anything coming of it, and in 1702 the English had appointed Commissioners for it, but then allowed the meetings to fail.'

SOURCE: 'A History of Scotland' by Rosalind Mitchison, p. 307.

Queen Anne

'Anne was dominated by her English ministry, and through her it could order the Scottish ministers about, and expect them to obey, but there were limits to what these ministers could do when Parliament was insubordinate. There was still one solution open to the Scots that the Crown would not readily accept, a political separation. Scotland could reverse the decision of 1689, which had not been made by her anyway, and go back to the main line of the Stewarts in the person of James VIII, James Edward, the child born in 1688...and the country would have her own king again. She would still be poor. It would take at least two generations to build up a new pattern of export trade, but she would be independent...In 1702 Anne was forced to dissolve the Parliament that had brought William to the throne and been kept on into her reign with dubious legality...'

SOURCE: 'A History of Scotland' by Rosalind Mitchison, pp. 304-305.

  



The Sovereignty of the Scottish People

'If the Scottish people expressed a desire for independence the stage would be set for a direct clash between what is the English doctrine of sovereignty and the Scottish doctrine of the sovereignty of the people.'

- 'The Operation of Multi-Layer Democracy', Scottish Affairs Committee Second Report of Session 1997-1998, HC 460-I, 2 December 1998, paragraph 27.

Between the Treaty of Union in 1707 and the establishment of the devolved Scottish Parliament in 1999 constitutional law in Scotland developed into its present form where 'the sovereignty of the Scottish people' now rests with the total registered electorate. During this intervening period sovereignty lay with the United Kingdom Parliament at Westminster, and to a certain extent it still does - but not for long. The Treaty of Union did NOT abolish Scots Law as Article XIX makes clear. This temporary loss of sovereignty has to be seen against the background of where the Parliament of Great Britain is located. The siting of that Parliament at Westminster, the location of the Parliament of England, meant that it was within the jurisdiction of English Law and beyond the reach of Scots Law. In his book Gordon Donaldson writes -

'But the theories of English constitutional lawyers prevailed, and the union has proved to have no more sanctity than any other statute. From time to time attempts have been made to appeal to the terms of union, but always without success. The list of violations of the treaty is already a long one and always growing longer.'

- 'Scotland: The Shaping of a Nation', by Gordon Donaldson, pp 58-59, ISBN 0 7153 6904 0.

In an important 1954 legal finding in the Scottish Court of Session Lord Cooper wrote -

'The unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law.'

- McCormick v Lord Advocate 1954 (1953 SC 396).

Against this background the view that 'the sovereignty of the Scottish people' has 'merely been unavailable' is the only possible explanation. British Unionists who still insist that Scottish independence is a matter of 'NEVER' or 'IF' are in denial - Scotland WILL regain its independence and international sovereignty. Only through independence will 'the sovereignty of the Scottish people' become fully available.

Only one country has ever created a form of government based on popular sovereignty (sovereignty of the people) - the United States. The opening words to the Constitution of the United States, 'WE THE PEOPLE', clearly imply popular sovereignty, which was most likely the intention of James Wilson when he penned the phrase.

'Jefferson, concerned that the state legislatures were assuming executive and judicial power, as well as legislative, was prompted to observe..."An elective despotism was not the government we fought for."'

- 'The Federalist Papers', Penguin Classics Edition edited by Isaac Kramnick, p. 25, ISBN 0-14-044495-5.

'...the ultimate authority, wherever the derivative may be found, resides in the people alone...'

- James Madison, Federalist 46

The following quotations were all found at this URL: http://etext.virginia.edu/jefferson/quotations/jeff0300.htm -

"[The people] are in truth the only legitimate proprietors of the soil and government."

- Thomas Jefferson to Pierre Samuel Dupont de Nemours, 1813. ME 19:197.

"[It is] the people, to whom all authority belongs."

- Thomas Jefferson to Spencer Roane, 1821. ME 15:328

"The ultimate arbiter is the people of the Union."

- Thomas Jefferson to William Johnson, 1853. ME 15:451.

Unfortunately, in the United States, the concept of popular sovereignty has become corrupted and defiled by elitism and political self-interest by both major political parties. In his book John T. Noonan, Jr. writes -

'Nowhere in the entire document are the states identified as sovereigns. The claim that the sovereignty of the states is constitutional rests on an audacious addition to the eleventh amendment, a pretense that it incorporates the idea of state sovereignty...But not one of the fifty states, nor the United States itself, is such a sovereign...It is not directly or indirectly ascribed to the states by the constitution of the United States.'

- 'NARROWING THE NATION'S POWER' , by John T. Noonan, Jr., pp 151-152, ISBN 0-520-23574-6.

In 1787 popular sovereignty was an idea that was ahead of its time but now, in the 21st century, it is an idea whose time has come. Popular sovereignty belongs to all people and not just a select few.

'It's coming yet for a' that That Man to Man, the world o'er Shall brithers be for a' that.'

- 'For A' That and A' That' by Robert Burns (1759 - 1796)

Scottish Sovereignty and Independence

"Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law."

- Thomas Jefferson

Originally sovereignty was considered to be the absolute power of monarchs but through time that idea has developed in various ways. In Scotland the concept of popular sovereignty first emerged following the death of Alexander III in 1286 when Scotland was without a king. The original concept was called 'the community of the realm' but has evolved into a democratic style where 'the sovereignty of the Scottish people' now rests with the total registered electorate. As far as I am aware the first written example of it is in the Declaration of Arbroath in 1320 -

'...But after all, if this prince shall leave these principles he hath so nobly pursued, and consent that we or our kingdom be subjected to the king or people of England, we will immediately endeavour to expel him as our enemy and as the subverter both of his own and our rights and we will make another king, who will defend our liberties...'.

Popular or democratic sovereignty is the very antithesis of parliamentary sovereignty (the supremacy of the Westminster Parliament) which has existed in English constitutional law since it was established through the English Bill of Rights in 1689. Up until the establishment of the Scottish Parliament in 1999 the constitutional and legal effect on 'the sovereignty of the Scottish people' was that it had merely been unavailable. A specific example of the contradiction between popular sovereignty and parliamentary sovereignty can be found in a 1954 legal finding by Lord Cooper in the Scottish Court of Session -

'...The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law...I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all of the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done...'

- (MacCormick v Lord Advocate 1954 (1953 SC 396))

The Treaty of Union in 1707 abolished neither the Parliaments of Scotland or England as clarified by Article 3 -

'III. That the United Kingdom of Great Britain be represented by One and the same Parliament, to be stiled, the Parliament of Great Britain.'

In her speech to the initial meeting of the devolved Scottish Parliament Dr. Winnie Ewing MSP (Scottish National Party), now retired, said -

'...the Scottish Parliament, which adjourned on 25 March 1707, is hereby reconvened...'

- Scottish Parliament Official Report, Vol. 1, No. 1, 12 May 1999.

In 1989 the Members of the Westminster Parliament in Scotland for the Labour and the Liberal Democrat parties were part of the Scottish Constitutional Convention, one of them was Gordon Brown MP (now the British Prime Minister). They all signed a document, 'A Claim of Right for Scotland', which reaffirmed 'the sovereignty of the Scottish people' and their right to choose the type of government best suited to their needs. From the first elections to the Scottish Parliament up until the elections in May this year they formed a coalition which represented the majority of Members of the Scottish Parliament and as such were in control. They are now part of the opposition and are opposed to any referendum on, or which includes the option of, independence.

Several weeks ago a White Paper, which is based on 'the sovereignty of the Scottish people', was launched by Alex Salmond MSP, MP, First Minister of Scotland, as a consultation with the people of Scotland, it is called 'Choosing Scotland's Future: A National Conversation - Independence and responsibility in the modern world'. In an Opinion column in 'The Scotsman' newspaper Aileen Campbell MSP (Scottish National Party) asked the following question -

'...And what is so scary about fostering a national debate on the future of the country anyway?...'

The first practical example of popular sovereignty being the basis of a system of government is to be found in the Constitution of the United States. That document starts with the words 'WE THE PEOPLE...' which clearly infers popular sovereignty. Anything which follows those words and contradicts them, no matter how remotely, is therefore unconstitutional.

'...the ultimate authority, wherever the derivative may be found, resides in the people alone...'

- James Madison, Federalist 46

The author of the phrase 'WE THE PEOPLE' was James Wilson who was born in Ceres (Carskerdo) near St. Andrews in Fife.

'No man has a right to fix the boundary of the march of a nation; no man has a right to say to his country, "Thus far shalt thou go and no further".'

- Charles Stewart Parnell (1846 - 1891).