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.

  



Independence: Scotland is VERY different from Quebec

Whenever the subject of Scottish independence occurs in any debate the relationship between Scotland and the rest of the United Kingdom is compared to that between Quebec and the rest of Canada. These comparisons are inaccurate as they inevitably depend on assumptions and not facts. So what are the actual facts?

Scotland was an internationally sovereign country prior to 1 May 1707 when it joined with the realm of England, through the Treaty of Union in 1707, to form the United Kingdom of Great Britain. The precursor to that treaty occurred over one hundred years earlier in 1603 in what is erroneously called the Union of the Crowns when James VI of Scotland became James I of England.

'...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.

Prior to 1763 Quebec was the capital of New France, the territory of which was divided into 5 colonies. The French colony of Canada, in which Quebec was located, was ceded to Britain in 1763 following military conquest. The former French colony was renamed as the Province of Quebec then in 1791 it became Lower Canada. In 1840 Quebec became part of the Province of Canada through an Act of Union then in 1867 as a province of the Canadian Confederation and eventually of present-day Canada.

Union of Parliaments

In any debate about the Treaty of Union in 1707, also known as the Union of Parliaments and which provided for one parliament (Article III), there are certain inconvenient facts which British Unionists prefer to omit -

• that in the three months that the Articles of Union were being debated by the Scottish Parliament there were riots throughout Scotland,
• that, during the same period, English troops were moved to the Scotland/ England border,
• that the majority of the Scottish commissioners appointed to negotiate the Articles of the proposed Treaty of Union were chosen because they were in favour of an incorporating union,
• that the Equivalent, the financial recompense for Scotland's contribution to payment of the English national debt (Article XV of the Treaty of Union in 1707) was grossly underestimated.

In his book 'The Lion in the North' (on page 238) John Prebble writes -

'Another English spy, less considerate of his masters' feelings, reported that most Scots cursed the nobles who had betrayed them into the Union, and that for every man who supported the Treaty there were fifty against it. 'I never saw a nation so universally wild'.'

Although it was dissolved by proclamation on 22 April 1707 the Scottish Parliament never actually dissolved itself. The last meeting of that Parliament was on 25 March 1707 when it was adjourned. That is why, in her speech to the initial meeting of the devolved Scottish Parliament Dr. Winnie Ewing MSP (Scottish National Party), now retired, was able to say -

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

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

United Kingdom. Secession and Dissolution

The United Kingdom is purported to have first been formed in 1801 through the Treaty of Union which formed the United Kingdom of Great Britain and Ireland. Close examination of the Articles of the Treaty of Union in 1707, however, shows that reference is made a number of times to the United Kingdom even though Article I states -

'...be united into one Kingdom by the name of Great Britain...'

Generally when a new country is formed from a part of an existing country it is usually described as being a secession. In the specific instance of Scottish independence, however, the word secession is both inaccurate and incorrect. For a secession to occur the parent country/state, which with regard to the current constitutional status of Scotland is Great Britain/ United Kingdom, would have to continue, albeit in a modified form - that would not be the case. The country of Great Britain was created by the joining of the realms of Scotland and England through the Treaty of Union in 1707. When Scotland regains its independence that treaty will effectively be DISSOLVED and Great Britain will CEASE to exist. Scottish independence, therefore, would NOT be a case of secession but would, in fact, be one of DISSOLUTION - referring to Scottish independence as secession would not change that fact. That is why Scottish independence would not be secession whereas the independence of Quebec from Canada would be.

'In contrast, Lane says, Scotland cannot break away like Ireland as it was 'one of the basic building blocks of "the United Kingdom of Great Britain"' (Lane 1991: 146). Without Scotland there is no 'Great Britain' and without Great Britain there is no 'United Kingdom'.'

SOURCE: 'SCOTTISH INDEPENDENCE: A Practical Guide' by Jo Eric Murkens with Peter Jones and Michael Keating, p.109, ISBN 0-7486-1699-3.

When Scotland regains its independence the reigning monarch of the United Kingdom will remain Head of State, in accordance with the Union of the Crowns in 1603, until such time as the people of Scotland decide otherwise in a referendum in an independent Scotland.

Sovereignty

The locus of sovereignty in Scotland has been disguised since 1707 and only since the late 1960's has it gradually come out of the shadow that was cast over it. A common misconception has been that sovereignty resided with the UK Parliament (parliamentary sovereignty/ supremacy of parliament). In 1688 the decision was made that in English constitutional law parliament was sovereign. Nowhere in the Treaty of Union in 1707 or at anytime since then has the UK Parliament ever been deemed to be sovereign.

'Yet the Scots made a grave miscalculation. They thought of the treaty as a written constitution, and, even with all the concessions they had obtained they would not have accepted that an omni-competent parliament had power to abrogate provisions which they fondly imagined to be 'fundamental and essential'...But the theories of English constitutional lawyers prevailed and the union has proved to have no more sanctity than any other statute.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p.58.

Sovereignty in Scotland has evolved since the death of Alexander III in 1286.

'Besides, in the years when Scotland was kingless, another concept emerged besides that of the impersonal crown: ultimate power or sovereignty was seen to lie with what was called 'the community of the realm'.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p.64.

The sovereignty of the Scottish people has now developed into a more democratic form and now rests with the registered electorate in Scotland.

'...greater power can only be granted to Scotland by the UK Parliament and here there is potential for conflict. To take the extreme example,constitutional matters are reserved but it is hard to see how the Scottish Parliament could be prevented from holding a referendum on independence should it be determined to do so. 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.'

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

A 1954 legal finding by Lord Cooper in the Scottish Court of Session contained the following -

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

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

'Yet whatever the protestation of Westminster politicians and the wording of the Scotland Act, almost nobody in Scotland believes that the Parliament is a mere subordinate legislature, a creature of Westminster statute. Its claims to original authority are twofold: its basis in the referendum of 1997 as an act of self-determination; and the residual traditions of Scottish constitutional law and practice which never accorded untrammelled sovereignty to Westminster.'

SOURCE: 'SCOTTISH INDEPENDENCE: A Practical Guide' by Jo Eric Murkens with Peter Jones and Michael Keating, p.296.

Scots Law and legal system

'There are striking similarities between Quebec and Scotland. As Mark D. Walters, Professor of Constitutional Law at Queen's University in Canada, notes, 'efforts by Canadian and British judges to identify constitutional rules and principles of a common law nature are analogous, even though one system has a written constitution and the other does not' (Walters 1999: 383).'

SOURCE: 'SCOTTISH INDEPENDENCE: A Practical Guide' by Jo Eric Murkens with Peter Jones and Michael Keating, p.15.

The following are extracts from the Wikipedia entry for 'Common Law' -

'Scotland is often said to use the civil law system but it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707...Scots common law differs in that the use of precedent is subject to the courts' seeking to discover the principle that justifies a law rather than searching for an example as a precedent, and principles of natural justice and fairness have always played a role in Scots Law...Scots common law covers matters including murder and theft, and has sources in custom, in legal writings and previous court decisions.'

The following are extracts from the 'Kilbrandon Report' -

'74. ...By the time of the Union a well-defined and independent system of Scottish law had been established. This was recognised in the Union settlement, which provided for the preservation of the separate code of Scots law and the Scottish judiciary and legal system. Under Article XIX the two highest Scottish courts - the Court of Session and the High Court of Justiciary - were to continue, and were not to be subject to the jurisdiction of the English courts. These bodies have remained respectively the supreme civil and criminal courts in Scotland, while beneath them there is a completely separate Scottish system of jurisdiction and law courts, with a justiciary, advocates and solicitors, none of whom are interchangeable with their English counterparts...

76. ...Nevertheless the two systems remain separate, and - a unique constitutional phenomenon within a unitary state - stand to this day in the same juridical relationship to one another as they do individually to the system of any foreign country.'

SOURCE: 'Royal Commission on the Constitution, 1969 - 1973', Volume I, Cmnd. 5460.

United Kingdom: Scotland is NOT part of England

Recently I came across a blog post Scotland May Split with the United Kingdom on the blog Enduring Sense. This short post about the results of the Scottish Parliament elections in May contained the following sentence -

'This Party ran on a platform that included calling a referendum to determine if Scotland will remain part of England or become an independent country.'

I submitted a comment and received a reply from the author in which he wrote -

'Thanks for your clarification on the status of England and Scotland.'

The following is the comment which I submitted -

'...to determine if Scotland will remain a part of England...'

That is factually incorrect. Scotland is NOT part of England and NEVER has been. This post shows that there is a clear misunderstanding about what the United Kingdom actually is. The following is a brief history of it from the so-called Union of the Crowns in 1603.

'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.

It was James who first used the term 'Great Britain' to describe his combined kingdoms of Scotland and England. By this time Wales was already part of the kingdom of England, initially through the Statute of Rhuddlan in 1284 then more formally by a statute of the parliament of England in 1536. What unites the 'United Kingdom' is the fact that the same person is the monarch of three kingdoms - Scotland, England and Ireland. In relation to Scotland the term 'United Kingdom' first occurred in the Treaty of Union in 1707 which established, as from 1 May 1707, the 'United Kingdom of Great Britain' (Article I). In 1801 it was expanded to include Ireland in the 'United Kingdom of Great Britain and Ireland'. Following the creation of the Irish Free State in 1922 it became the 'United Kingdom of Great Britain and Northern Ireland' in 1927. As well as being a descriptive term of the territory of which it is comprised, 'United Kingdom' is also an abbreviation of the formal name. When Scotland regains its independence the 'United Kingdom' will continue, as it did between 1603 and 1707, until the people of Scotland decide otherwise in a referendum in an independent Scotland.

Scottish independence is often referred to as being a case of secession. It is, in fact, incorrect to use the words 'secede' or 'secession' with regard to Scottish independence. For a secession to occur the parent country, which with regard to the current constitutional status of Scotland is Great Britain, would have to continue, albeit in a modified form - that would not be the case. The country of Great Britain was created by the joining of the kingdoms of Scotland and England through the Treaty of Union in 1707. When Scotland regains its independence that treaty will effectively be DISSOLVED and Great Britain will CEASE to exist.

'In contrast, Lane says, Scotland cannot break away like Ireland as it was 'one of the basic building blocks of "the United Kingdom of Great Britain"' (Lane 1991: 146). Without Scotland there is no 'Great Britain' and without Great Britain there is no 'United Kingdom'.'

SOURCE: 'SCOTTISH INDEPENDENCE: A Practical Guide' by Jo Eric Murkens with Peter Jones and Michael Keating, p.109, ISBN 0-7486-1699-3.

I would appreciate it if you would submit a post which clarifies the actual status of Scotland in relation to other parts of the 'United Kingdom of Great Britain and Northern Ireland' for the benefit of your readers.

False Impressions

Professor Gordon Donaldson writes in his book 'Scotland: The Shaping of a Nation' -

'Yet the Scots made a grave miscalculation. They thought of the treaty as a written constitution,...But the theories of English constitutional lawers prevailed, and the union has proved to have no more sanctity than any other statute...The list of violations of the treaty is already a long one and always growing longer...The fact is that, contrary to the beliefs and hopes of those who framed it, the treaty of union has proved to be a mere scrap of paper, to be torn up at the whim of any British government.'

There appears to be an international misunderstanding about the status of Scotland - political and geographic. The use of the name Britain when the subject is England is just one example of this misunderstanding. There is a tendency in certain parts of the British media to say Britain when bad news abroad concerns England, but Scotland when it concerns Scotland. The car of a Dutch tourist was fitted with the most up to date satellite navigation equipment which informed him that he was in England - he was in Fort William, a town on the North West coast of Scotland. He also said that no-one actually considered the northern part of this island (Britain) as anything other than England. When a search on 'Scotland' is performed in US newspapers online the most frequently returned result is about golf, which could give the false impression that Scotland is just a glorified golf course appended to England.

England is not Britain (only the largest part) and Scotland is not part of England. Since 1922 there have been three countries and part of another in the United Kingdom of Great Britain and Northern Ireland - Scotland, England, Wales and Northern Ireland. Despite the Union of the Crowns (a misnomer as there were and still are two kingdoms) in 1603 and and the Treaty of Union in 1707, Scotland and England do not have a shared history. The following are extracts from Articles 18 and 19 of the Treaty of Union of 1707 -

'XVIII. ...and that all other laws within the Kingdom of Scotland, do after the Union, and notwithstanding thereof, remain in the same force as before (except such as are contrary to, or inconsistent with this Treaty) but alterable by the Parliament of Great Britain:...

XIX. That the Court of Session, or College of Justice, do after the Union, and notwithstanding thereof, remain in all time coming within Scotland, as it is now constituted by the Laws of that Kingdom, and with the same Authority and Privileges as before the Union, subject nevertheless to such Regulations for the better Administration of Justice as shall be made by the Parliament of Great Britain...And that the Court of Justiciary do also after the Union, and notwithstanding thereof, remain in all time coming within Scotland, as it is now constituted by the Laws of that Kingdom, and with the same Authority and Privileges as before the Union, subject nevertheless to such Regulations as shall be made by the Parliament of Great Britain, and without prejudice of other Rights of Justiciary...and that the said Courts, or any other of the like nature, after the Union, shall have no power to cognose, review, or alter the Acts or Sentences of the Judicatures within Scotland or to stop the execution of the same...'