“The United Kingdom – The Development of Its Laws and Constitution.” Vol. I, Book 2, in the British Commonwealth Series (Stevens and Sons, Ltd., London), contains a commentary on the Union, Professor T. B. Smith writes:-
“The law and custom of the United Kingdom Parliament has been developed almost exclusively from the practice of the English Parliament, which sat at Westminster before its supersession by the new body representing Scotland and England… At the time of the Union the idea had not emerged in Scotland that an absolute sovereign power was to be found in King or in Parliament, or in both combined… Neither in public nor in private law the Scottish courts prior to the Union did not accept the English doctrine that ‘The King can do no wrong.’ The former English doctrine was temporarily adopted for the sake of uniformity in the late nineteenth century in the dubious decision of Smith v. Lord Advocate (1897: 25 R. 112.)…
LEX EST REX
“For his public acts the King was not answerable before his own courts, but here again it was not assumed that he could do no wrong. The Estates of Parliament, or sometimes an ad hoc organisation of the King’s subjects, would maintain, by force if necessary, checks upon unconstitutional actings by the King… Parliament had to share its powers of government with an autonomous Church – which at times exercised autocratic influence, and with the Convention of Royal Burghs. Though Robert the Bruce had summoned the representatives of the burghs to Parliament, the burgesses preferred to debate matters of importance to themselves in their own Convention. Pre-Union Scottish legislation, moreover, could be proved that a custom had been established contrary to the Act which would indicate the intention of the community to treat the particular Act as repealed.
“A. V. Dicey and R. S. Rait (Thoughts on the Scottish Union, p. 21) have examined the essential difference between the English doctrine and that of Scotland. In England ‘in theory at least the King and the Houses, however they divided sovereignty between them, became in their own eyes and in those of the nation the omnipotent sovereign of England… In Scotland it was far otherwise… from historical circumstances, the Parliament of Scotland never had, or felt that it had the omnipotence of the English Parliament. Indeed, the Scottish Parliament almost at times acknowledged some power which restrained or competed with parliamentary authority.”
Professor Smith continues: “Thus, when Dicey and Rait (op. cit. p. 243) refer to the ‘transference in Scotland of authority from a non-sovereign to a sovereign Parliament’ at the time of the Union, it is difficult to appreciate how they concluded that a non-sovereign Parliament could transfer greater powers than it could itself lawfully exercise. ‘Nemo plus juris ad alium transferre potestm quam ipse habet’.”
NOTE. – The Scots Parliament was at that time a legislature of three Estates meeting in a single chamber. On January 16, 1707, the Scots Peers passed the Act by 42 votes to 19, the Commissioners for Shires by 38 to 30, the Commissioners for Burghs by 30 to 20, and Queen Anne’s Commissioner signified the Royal Assent. On March 4th the Royal Assent was signified to a Bill passed by the Houses of Commons and Lords of the English Parliament. Pursuant to these Acts, the Union was formally inaugurated by a service at St. Paul’s Cathedral, London, on May 1st, 1707. No ratification was possible in Scotland because of popular anger.
Professor Smith continues:- “In the recent case of MacCormack v. Lord Advocate1 – commonly called the ‘E. II R. Case’ – the First Division of the Court of Session examined and rejected the English theories that Parliament is an unlimited sovereign, and can lawfully vary on conditions of the Union by ordinary legislation. The Lord President (Lord Cooper), with the full concurrence of Lord Carmont and (on this point) Lord Russell observed that the principle of the unlimited sovereignty of Parliament is distinctively English and has no counterpart in Scottish constitutional law.
Should a substantial body of opinion in Scotland (or in England for that matter) oppose a variation by normal parliamentary methods, it might be a statesmanlike gesture to submit the interpretation of the Treaty to the judges of the International Court of Justice for an opinion regarding the binding force of its obligations. It is a doubtful question, having regard to the United Nations Charter (Article 2). whether such procedure would be competent if raised by the Government of the United Kingdom alone. Certainly the question seems to be unique as to whether a State comprising two former States which entered into an incorporating union by international treaty, can invoke the opinion of an international court as to the rights of the former States inter se. If it is competent, then international law may again control a situation in those fields of Anglo-Scottish relations where domestic jurisdiction is excluded. In any event, a reference to international arbitration would be possible, notwithstanding limitations on the jurisdiction of the international court.”
(NOTE. – Further reference may be made to: Dr. G. S. Pryde, The Treaty of Union of Scotland and England, Edinburgh, 1950; Sheriff K. W. B. Middleton, 64 Juridical Review 13; and Mr. G. Marshall, 67 Jur. Rev. 62.)
1 NOTE. – 1953 S.C. 396. 1953 S.L.T. 255. See also the discussion of this case 1953, 69 L.Q.R. 512; 1954 S.A.L.R. 135 at p. 138; 66 Jur. Rev. 37.