Scottish Independence is restoration NOT secession (Part 3)

Introduction:

The 19th century had started with a further expansion of the Union which brought Ireland into it. The failure of the planned risings in Scotland and Ireland had the effect of causing a cessation of Radical political activity - but only temporarily. The reaction of the British Government was still fresh in the memories of republicans. What political activity there was during the nineteenth century was mainly related to the Industrial Revolution. There was to be an event in 1820, details of which came to light in 1970, and even today in 2012 these details are still widely unknown.

'No full-length study of the uprising had ever been attempted; in fact, hardly anyone in Scotland had even heard of the event. It had been deleted almost entirely from Scottish historical consciousness.'

SOURCE: 'The Scottish Insurrection of 1820' by Peter Berresford Ellis and Seumas Mac A'Ghobhainn, from the Preface to the 1989 Edition, p. 1,

'Our knowledge of the event and the personalities involved has continued to expand. Prior to this volume's first appearance, the events of April 1820 had almost been deleted from Scottish history. Even after publication, the event was regarded with some discomfiture by certain sections of academia. Perhaps there was a feeling of guilt that such an important event had previously been ignored by historians. In an apparent attempt to justify this, a few scholars have tried to downplay the insurrection and its significance.
Two aspects of therising seem to particularly increase scholastic discomfiture.
Firstly, the fact that it was an aim of the Scottish Radicals to set up a separate parliament in Edinburgh has been met with sceptical posturing. Yet this aim was clearly spelt out by Glasgow Police Chief, James Mitchell, in his letters to the Home Secretary, Lord Sidmouth, of March 18 and 29 1820.
Secondly, a few scholars,...have baulked at accepting any widespread involvement of Government agents provocateur in instigating the rising. Again, this is simply a denial of clear primary source evidence.'

SOURCE: 'The Scottish Insurrection of 1820' by Peter Berresford Ellis and Seumas Mac A'Ghobhainn, from the Preface to the 2001 Edition, pp. xi-xii.

1803 - 1902:

Early 19th Century

In 1812 there was an industrial strike by weavers throughout Scotland. This industrial action came after weavers had proposed wage rates which were ruled by a court to be "moderate and reasonable", employers, however, decided not to accept that decision. This was the trigger for the emergence of the Scottish Radical movement.

'On October 29, 1816, it was estimated that 40,000 people attended this first massive Scottish Radical demonstration - which became known as the Thrushgrove Meeting.'

SOURCE: 'The Scottish Insurrection of 1820' by Peter Berresford Ellis and Seumas Mac A'Ghobhainn, p. 103.

'The Glasgow gathering in October 1816 at Thrushgrove on the outskirts of the city attracted an estimated 40,000 people, the greatest political assembly that had ever taken place in Scotland.'

SOURCE: 'The Scottish Nation 1700-2000' by T.M. Devine, p. 224.

'The swing to Scottish Radicalism was spectacular and Richmond and his fellow agents were busy trying to stir up some form of unconstitutional protest among the Radicals in order to give the Government a legal excuse for the suppression of the movement.'

SOURCE: 'The Scottish Insurrection of 1820' by Peter Berresford Ellis and Seumas Mac A'Ghobhainn, p. 105.

'After lying almost dormant for a year following the farcical High Treason trials in 1817, the Scottish Radical movement was growing stronger than ever before. Paisley, the centre of the weaving trade in Scotland, was also the main centre of Radicalism.'

SOURCE: 'The Scottish Insurrection of 1820' by Peter Berresford Ellis and Seumas Mac A'Ghobhainn, p. 115.

'The red cap of Liberty made a startling reappearance at a Paisley meeting for reform, and five thousand regulars were marched into the south-west. Young Radicals had begun their military training in 1819, but the movement was weak and ill-armed, and its leaders did not think a rising would be possible before 1821. The establishment could not wait this long and on March 21, 1820...it arrested all twenty-eight members of the hopeful Provisional Government...Since they had been careful to keep most of their names and much of their activities secret, the body of the movement was unaware that its head had been removed.'

SOURCE: 'The Lion in the North' by James Prebble, p. 319.

The Radical Rising

'THE SCOTTISH INSURRECTION OF 1820 was predominantly a gregarian Radical uprising born out of the social evils of the time...But as well as the Radical reform aspect, there was also a strong Scottish national aspect, for it was the intention of the 1820 Radicals, as well as that of The Friends of the People, in the early 1790's, and their successors, the United Scotsmen Societies, to dissolve the Union of Parliaments between England and Scotland of 1707 and "to set up a Scottish Assembly or Parliament in Edinburgh".'

SOURCE: 'The Scottish Insurrection of 1820' by Peter Berresford Ellis and Seumas Mac A'Ghobhainn, p. 36.

On 1 April, 1820 a proclamation, in the name of the 'Committee of Organisation for Forming a PROVISIONAL GOVERNMENT' was posted on the walls of buildings in Glasgow as well as in the towns and villages of several other counties.

'Reading the proclamation, Hunter made a mental note for the editorial jeader which he was to write in his newspaper the next day. He noticed that in one paragraph the proclamation referred to Magna Carta and the Bill of Rights, which were not part of Scottish history. To Hunter this seemed to suggest that the author was an Englishman, because a Scot would naturally refer to the Declaration of Arbroath in the place of the English Magna Carta. As later events were to show, this was a highly significant fact.'

SOURCE: 'The Scottish Insurrection of 1820' by Peter Berresford Ellis and Seumas Mac A'Ghobhainn, p. 25.

'ON MONDAY MORNING, April 2, 1820 , the effect of the call for a "Liberty or Death" uprising could be seen across the whole of South-West Scotland. In obedience to the command of the "Provisional Government" almost all the labouring population had abandoned their work and where any remained, agents from the various Radical Committees compelled them to stop. Even in Glasgow "this was done openly". From Stirling to Girvan, seventy miles from east to west, and from Dumbarton to Lanark, forty miles from north to south, all the weavers, mechanical manufacturing and labouring population became idle and the Radical Committees began to make preparations.'

SOURCE: 'The Scottish Insurrection of 1820' by Peter Berresford Ellis and Seumas Mac A'Ghobhainn, p. 146.

'The trials for High Treason were actually held under English Law and not Scottish Law, contravening the Treaty of Union of 1707.
These records are now held by the Scottish Record Office, referenced as "JC 21".'

SOURCE: 'The Scottish Insurrection of 1820' by Peter Berresford Ellis and Seumas Mac A'Ghobhainn, from the Preface to the 1989 Edition, p. 7.

'The trials for treason which followed were held in defiance of bitter protest, and in violation of the Treaty of Union, for they were conducted by English law and prosecuted by an English barrister. Of twenty-four men and boys sentenced to death, all but three were eventually transported for life. These three were weavers: James Wilson,,,Andrew Hardie...and John Baird...'

SOURCE: 'The Lion in the North' by James Prebble, p. 320. 

Middle to late 19th Century

After the trials the aims of the Radical movement faded until later in the 19th century. There was a brief attemptin the 1850's when the National Association for the Vindication of Scottish Rights was formed in 1853.

'But the National Association also demonstrated how feeble political nationalism was in the 1850s. It lasted for only three years and was wound up in 1856:...'

SOURCE: 'The Scottish Nation 1700-2000' by T.M. Devine, p. 287.

'On the other hand, 1886 saw the foundation of the Scottish Home Rule Association. The agitation of the 1880s did not produce Home Rule, but it did produce a Secretary for Scotland in 1885...'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p. 126.

'In 1885 the office of Secretary of Scotland was revived, the Scottish Office established in London and a Scottish Standing Committee was set up in 1894 to consider all Scottish legislation. In addition, a Scottish Home Rule Association was founded to campaign for a parliament in Edinburgh. Between 1886 and 1900, seven Scottish Home Rule motions were presented to parliament. Those submitted in 1894 and 1895 gained majorities but failed because of a lack of parliamentary time.'

SOURCE: 'The Scottish Nation 1700-2000' by T.M. Devine, pp. 307 - 308.
      

James Wilson - 'We the People' and Sovereignty

Several years ago while performing a Google search on the subject of 'Popular Sovereignty' I came across a paper titled 'Popular Sovereignty and Constitutional Amendment' by Akhil REED AMAR. In that paper he writes -

'As Gordon Wood has written Wilson was the Federalists' pre-eminent popular sovereignty theorist; and it was his hand that first penned the bold first three words of the Constitution, "We the People".' - page 9.

Those words have intrigued me ever since reading them. I followed the relevant endnote to page 150 of Volume II of 'The RECORDS of the FEDERAL CONVENTION of 1787' edited by Max Farrand which gives the text of Document V in the COMMITTEE OF DETAIL, in particular the footnote on that page which reads as follows -

'Document V in Wilson's handwriting was found among the Wilson Papers. It appears to be the beginning of a draft with an outline of the continuation. Parts in parentheses were crossed out in the original.'

When James Wilson wrote those words what exactly did he mean by them? In the context of the Constitution of the United States they clearly refer to 'the people of the United States' but outwith it they are inclusive of ALL people throughout the world.

'...Wilson was at the front rank of the founders. He was also in touch with the future. "By adopting this system," Wilson explained in 1787, "we shall probably lay a foundation for erecting temples of liberty, in every part of the earth."'

SOURCE: 'Collected Works of James Wilson', Edited by Kermit L. Hall and Mark David Hall, Volume I, from 'COLLECTOR'S FOREWORD' by Maynard Garrison, ISBN 978-0-86597-686-3.

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

- Robert Burns (1759-1796)

The phrase 'we the people' is often used nowadays as a 'soundbite', whether it be political or not, but as used in the Constitution of the United States 'We the People' clearly indicates the locus of sovereignty - despite the fact that the word 'sovereignty' is not to be found anywhere in it. While a legislature may be regarded as being sovereign in an international sense, a genuinely democratic legislature, however, can ONLY act on BEHALF of the sovereign people and is therefore NOT sovereign in itself.

'I had occasion, on a former day, to mention that the leading principle in the politics, and that which pervades the American constitutions, is, that the supreme power resides in the people. This Constitution...opens with a solemn and practical recognition of that principle:- "We, the people of the United States, in order to form a more perfect union, establish justice, &c., do ordain and establish this Constitution for the United States of America." It is announced in their name - it receives its political existence from their authority: they ordain and establish.' - page 193,

'When the principle is once settled that the people are the source of authority, the consequence is, that they may take from the subordinate governments powers with which they have hitherto trusted them, and place those powers in the general government, if it is thought that there they will be productive of more good. They can distribute one portion of power to the more contracted circle, called state governments; they can also furnish another proportion to the government of the United States. Who will undertake to say, as a state officer, that the people may not give to the general government what powers, and for what purposes, they please? How comes it, sir, that these state governments dictate to their superiors - to the majesty of the people? When I say the majesty of the people, I mean the thing, and not a mere compliment to them.' - page 202,

SOURCE: 'Collected Works of James Wilson', Kermit L. Hall and Mark David Hall, Volume I, Remarks in Pennsylvania Ratification Convention.

That means that anything which comes after the words 'We the People' in the Constitution of the United States, and contradicts them, no matter how remotely, is unconstitutional.

Dual Sovereignty

The concept of dual sovereignty, as advocated by James Wilson, has been confused with the division of powers at the State and Federal levels. What Wilson meant was that as ONLY the people are sovereign at ALL times it is for them to decide how they wish the powers that come with that sovereignty to be put into effect.

'Wilson also advocated for federalism and the related concept of dual sovereignty. Since the people were the foundation of all government, they could construct as many levels of authority as they wished. Thus, the people could not only establish a national government of enumerated powers but simultaneously lend their support to state governments vested with the traditional police powers of health, safety, morals and welfare.'

SOURCE: 'Collected Works of James Wilson', Kermit L. Hall and Mark David Hall, Volume I, Introduction, pp. xix-xx,

'The secret is now disclosed, and it is discovered to be a dread, that the boasted state sovereignties will, under this system, be disrobed of part of their power...let me ask one important question. Upon what principle is it contended that the sovereign power resides in the state governments? The honourable gentleman has said truly, that there can be no subordinate authority. Now, if there cannot, my position is, that the sovereignty resides in the people.' - page 201,

'The very manner of introducing this constitution, by the recognition of the authority of the people, is said to change the principle of the present confederation, and to introduce a consolidating and absorbing government.

In this confederated republic, the sovereignty of the states, it is said, is not preserved. We are told, that there cannot be two sovereign powers, and that a subordinate authority is no sovereignty...I stated further, that if the question was asked, some politicians who had not considered the subject with sufficient accuracy, where the supreme power resided in our governments, he would answer, that it was vested in the state constitutions. This opinion approaches near the truth, but does not reach it; for the truth is that the supreme, absolute, and uncontrollable authority remains with the people.' - page 213,

'I consider the people of the United States as forming one great community; and I consider the people of the different states as forming communities, again, on a lesser scale. From this great division of the people into distinct communities, it will be found necessary that different proportions of legislative powers should be given to the governments, according to the nature, number, and magnitude of their objects.

Unless the people are considered in these two views, we shall never be able to understand the principle on which this system was constructed. I view the states as made for the people, as well as by them, and not the people as made for the states; the people, therefore, have a right, whilst enjoying the undeniable powers of society, to form either a general government, or state governments, in what manner they please, or to accommodate them to one another, and by this means preserve them all.' - page 214,

'State sovereignty, as it is called, is far from being able to support its weight. Nothing less than the authority of the people could either support it or give it efficacy.' - page 215,

'Permit me to proceed to what I deem another excellency of this system: all authority, of every kind, is derived by REPRESENTATION from the PEOPLE, and the DEMOCRATIC principle is carried into every part of the government.' - page 238,

SOURCE: 'Collected Works of James Wilson', Kermit L. Hall and Mark David Hall, Volume I, Remarks in Pennsylvania Ratification Convention.

Eleventh Amendment

The passing of the Eleventh Amendment, following Chisholm v State of Georgia, was a reaction to the realisation by a minority who currently held office that they could no longer manipulate matters for their own narrow interest. What the Eleventh Amendment did was to create a mechanism which State governments and their 'tentacles' could hide behind, in certain circumstances, to avoid their responsibility.

'The result was the speedy ratification in 1795 of the Eleventh Amendment...This rebuke of Wilson was particularly poignant since in the constitutional convention he had urged the principal of dual sovereignty. Put to the test on the bench, however, Wilson discovered that his views on the sovereignty of the people had less support than he supposed, at least when that sovereignty trumped state authority.'

SOURCE: 'Collected Works of James Wilson', Kermit L. Hall and Mark David Hall, Volume I, Introduction, page xxii,

'...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. Neither the text nor the legislative history of the amendment supports this claim, nor does an appeal to the history contemporaneous with the amendment...

Sovereignty in the classic sense was indivisible. Apparently such a concept of the sovereign was in Holme's mind when he asserted that one cannot sue a sovereign because that would put a sovereign above the sovereign. But not one of the fifty states, nor the United States itself, is such a sovereign.'

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

(John T. Noonan is a Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit.)

There are NO States Rights nor even Federal Rights - ONLY Peoples Rights.

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)