Notes on Articles of the Treaty, pp.27-32.

[Scotland’s Scrap Contents]

   “Great Britain.” This recalls the proposal of the English Lord Protector Somerset (1547) for a union of Scotland and England under “the indifferent old name of Britains.” (His descendant, then Duke of Somerset, was an English Commissioner in 1706.) In 1604 King James, VI. of the Scots and I. of England, issued a proclamation purporting to abolish the names of Scotland and England and to assume “by force of our royal prerogative” the title of King of Great Britain, France, and Ireland. Queen Anne, in whose reign the Union was consummated, had anticipated it by repeatedly usurping the style Magnae Britanniae Regina. 

   “The crosses of St Andrews and St George be conjoined… and used in all flags… both at sea and land.” Dewar Gibb writes (Scotland in Eclipse, 1930, p.118): “English intolerance of Scottish survivals has never been more clearly shown than in her treatment of Scottish symbols and distinguishing marks. In flat defiance of the Act of Union British ships of war bear a flag bearing the unlawful addition of the cross of St. George. It will be an amusing and instructive occasion when some Scottish nationalist applies to a magistrate in England for a summons against an Admiral of the Fleet for such a breach of the law.” 

   III. “represented” does not mean dominated. This Article does not authorise the omnipotence or legislative supremacy claimed by the British Parliament. Nor does it entail the abolition of the national Parliaments representing Scotland and England separately to the common Sovereign. 

   VI. “the same allowance, encouragements” (i.e., subsidies) “and drawbacks” (i.e., rebates). Articles IV. to XVII., are mainly concerned with securing a commercial equality to the Scots and English, but their spirit, and, where express, their letter, have not been honoured by British Parliaments and Governments. 

   For example, the last paragraph of Article VI. protects Scottish agriculture against competition from overseas. During the epoch of Free Trade, with the slogan of Cheap Food, this Article was flagrantly violated by the British Parliament, notably in the Repeal of the Corn Laws (1846). There have also been continual British discriminations in favour of English agriculture; Scots farmers complain of the cheese-paring British neglect of Scots staples, such as oats and hill-sheep, compared with relatively lavish subsidising of crops, such as wheat and sugar-beet, which are predominantly of interest to English growers. Scots growers of tomatoes and strawberries have grievances about the official price-structure discriminating against their (qualitatively superior) products, which naturally come on the market later than the English. 

   The present generation has seen and felt a marked increase of State-intervention in industry and commerce by British Departments, which have taken no account of their obligation under the Treaty to deal equally with Scotland. For example, the Secretary of State for Scotland (Rt. Hon. T. Johnston) felt constrained publicly to demand (7/2/44) that “Scotland as Scotland should get its fair share of the industry in the allocation of which the Government has any say,” and drew attention to the fact that the British Post Office concentrates its printing contracts in England, not a single telephone-directory being printed in Scotland. In its Report on Scotland’s Industrial Future (1939, p. 144) the Scottish Economic Committee pointed out that, in the British rearmament programme, the War Office and Air Ministry, “it may be because of a mistaken belief that Scotland is more prone to labour troubles than England, appear to give preference to the district which is most readily accessible from London.” Examples could be multiplied, e.g., those given by Scots M.P.’s at Westminster (Official Report, 12/5/42). Further, it is notorious that, by British legislation, the Bank of England has been fortified in a monopolistic position relative to the Scottish Banks. 

   Although deprived by the British Government of their due share of subsidies, State-Department contracts, and special legislation, the Scots may reflect that Scotland has higher rates of maternal and infantile mortality than England, more unemployment, poverty, overcrowding and disease, and a disproportionately large list of casualties in every one of the 74 wars (or thereby) wherein Scotland has been involved since the Union with England in 1707, which established “Great Britain.” 

   VII. “The same excises upon all excisable liquors.” Those interested in the production and consumption of whisky have frequently complained against discriminatory British taxation imposed upon this Scottish, Scots, or “Scotch” beverage, as compared with the duties on British wines and English gin. 

   VIII. The Treaty ordained an equality of facilitation for the export of cured fish, but the British Government sacrificed the largest part of the Scots European trade, that with Russia, to English Anti-Bolshevism. 

   IX. The proportion allowable for taxation of Scottish land, in relation to English (about 2.4%), may be of interest to property-owners and land-reformers in Scotland who are disturbed at the incidence of death-duties. 

   X. Two generations after this Treaty the taxation of stamped paper furnished a burning question before and during the American War of Liberation against Great Britain. 

   XV. It may be recalled that the Kingdom of England had become indebted to the Bank of England for loans made to the Dutch King William of Orange in his wars against Louis XIV. of France. As Dr. A. M. Mackenzie states (The passing of the Stewarts, p. 347): “The result of a war in which Scotland was not concerned was that England was sunk in high-pressure taxation, on everything from house-windows to birth, death, and marriage.” England had a National Debt of £18,000,000 [£4,599,253,751.89 today per BoE Inflation Calculator], three year’s revenue. Scotland in those times, like France and U.S.A. to-day, was averse from high taxation, and had, like modern Switerland, a very modest National Debt, £160,000 [£40,882,255.57], one year’s revenue. To induce the Scots to assume for the future a proportional responsibility for England’s debts, the negotiators hit upon the device of an Equivalent, set forth here. 

   Dr. James Mackinnon (The Union of England and Scotland, 1907, p. 360) gives some particulars anent the payment of this Equivalent. Its non-payment by 1st May 1707 induced a patriotic proclamation at the Cross of Edinburgh that the Union was dissolved. Four months later its arrival was greeted with a demonstration, crying “Judas money!” Only £100,000 was sent in bullion, the rest in exchequer bills – a further cause of suspicion and resentment. Dr. Mackinnon finally states: “The commissioners, to whom the distribution was committed, were accused of diverting the money from the ends for which it was given. Large sums were, it seems, squandered in extravagant allowances to the Commissioners of Union, as well as to those who had served on the Commission of 1702; and nearly twenty years elapsed before any portion of it was applied to the encouragement of fisheries and manufactures.” This was effected only upon a dunning petition from the Convention of Royal Burghs (1726). 

   For Scottish colonial enterprise see Dr. G. Pratt Insh, on The Company of Scotland. To secure a London monopoly its charter was revoked, with compensation to investors. 

   It was no doubt mainly in reference to the Equivalent that the English Lord Treasurer Harley, in a debate in 1711 on the taxation of linen exclaimed, “Have not we bought the Scots and may we not claim the right to tax them?” (Mackinnon, op. cit. 420). 

   XVI. A Mint is no longer continued in Scotland, but, as a concession to Scotch sentiment, a thistle was printed upon some three-penny-bits. 

   XVIII. This apparent guarantee of the Scots Law and Constitutional Rights is impaired by the saving clauses and the opportunities for interpretation of such terms as private right and utility. It has been argued, for example, that in view of this Article the British Parliament has no authority to enact industrial conscription or military conscription for foreign service. See verbatim reports of Mr. Douglas Young’s cases in 1942 and 1944, “The Free-Minded Scot” and “An Appeal to Scots Honour.” 

   Article XVIII. May be held to guarantee the Common Law of Scotland, including Scots customs in marriage, inheritance, and other personal concerns, and the civil rights of the people, against arbitrary imprisonment, etc. The first flagrant violation was in 1708, when the Act 7 Anne c. 20 extended to Scotland the barbarous English Treason Law. 

   XIX. Dr. Mackinnon states (op. cit. 233): “The assimilation of the Scottish legal system would have involved the disqualification of the Scottish legal profession; and the prospect of the loss of judicial salaries and forensic fees would have animated the lawyers to a life-and-death struggle on behalf of their interests, and prolonged, if it had not wrecked, the negotiations. The English Commissioners wisely refrained from disturbing the equanimity of the Faculty of Advocates and the College of Justice, and were content with the general stipulation that left the British Parliament to make such rectifications as the future might render necessary.” 

   The phrases “any other Court in Westminster Hall” and “any other of the like nature” were inserted, by a studious ambiguity not uncharacteristic of the statecraft of the negotiators, to allow of appeals being taken from the Supreme Courts in Scotland to the House of Lords in England. 

   The Act 6 Anne ch. 40 abolished the Scots Privy Council. 

   In 1718 the Court of Session petitioned the British Parliament against the constitution of a Commission to deal with the estates of landowners forfeited for participation in the Rising of 1715, as an encroachment on their jurisdiction ultra vires of the Legislature under this Article. The project was enacted by a majority of six votes (Parliamentary History, VII., 550-554). 

   In recent times violations of this Article have not passed unnoticed. In the Scottish Law Review (Oct., 1941) and elsewhere, A. D. Gibb protested against the trial in England of Scottish citizens, who had committed offences in Scotland, and of spies caught in Scotland, by unwarranted innovations contrary to the Treaty of Union. The United States (Visiting Forces) Act, 1942, being “an Act which purports to surrender or diminish any part of the jurisdiction of the Scottish Courts,” thereby constituted a breach of “the fundamental Treaty which forms the Constitution of that Union known as Great Britain,” according to the Hon. David Watson, a member of the Faculty of Advocates and of the English Bar (The Scots Independent, Sept., 1942). 

   XX. The heritable jurisdictions were feudal survivals which tended to establish locally the arbitrary power of certain families which had from time to time received Royal favour. This guarantee of these vested interests was inserted for the appeasement of their possessors. Their abolition was a plank of Jacobite and nationalist platforms (though certain Jacobite landowners availed themselves of their feudal rights in bringing out their tenants for the Stewart dynasty in the Risings). In 1747 the heritable jurisdictions were abolished, with handsome pecuniary compensation to their (mainly Whig and Unionist) holders – a long overdue measure (though in breach of the Treaty) which served as a propagandist diversion to facilitate the increased employment, for the maintenance of local “law and order,” of Justices of the Peace on the English model, unpaid lay magistrates (including English officers of northern garrisons, and English factors of sequestrated estates) to keep the natives “in their proper stations.” Baron Bailie Courts were, however, semi-popular cf. Patrick Anderson’s Play (1821). See also R. D. Whyte, Trans. Bute. N.H. Socy., vol. X pp. 30-31, 1930. 

   XXI. This guarantee for the municipal government of Scotland has been from time to time invoked under the Union, from different motives. For example, after the Porteous Riot of 1736, a British Government proposal to fine collectively the burgesses of Edinburgh was denounced as an infringement of this Article (Parliamentary History, X., 239). A century later a Radical campaign for municipal reform was blocked by the then reactionary or Tory Ministry on the ground that it would involve breaking the Treaty (Dr. A. M. Mackenzie, Scotland in Modern Times, 1941, p. 146). In the present generation the Article was appealed to in view of the Local Government (Scotland) Act, of 1929, which compulsorily amalgamated some of the ancient Royal Burghs, and deprived all of them of powers, in favour of a bureaucratic centralisation. This Act was passed by English votes against the wishes of Scots Local Authorities and the majority of the Scots Members of Parliament. The doyen of the Convention of Royal Burghs, the late Sir Henry Keith (Provost of Hamilton, and father of Lord Keith, one of the Senators of the College of Justice), initiated a campaign among the Burghs to refuse to administer the Act, as being unconstitutional in view of the Treaty. But the Burghs, being controlled by British party-politicians, adherents of the centralising English-controlled factions which had conspired to pass the Act, have not yet concerted action to set aside the pretended Statute. 

   XXII. The guarantees given to the Scots Peerage have been observed to the satisfaction, in recent generations, of the noble beneficiaries. 

   “Act for Securing the Protestant Religion and Presbyterian Church Government.” It must be observed that this Act, by the Preamble of the Act Ratifying and Treaty, is “expressly declared to be a fundamentall and essentiall Condition of the said Treaty of Union in all time coming.” Words could not be more plain. If this Act is infringed, the Treaty lapses. The purport of this Act is that the worship, discipline, and government of the Church of Scotland, “as now by law established,” should continue “without any alteration.” Five years after the Union, in 1712, the British Parliament passed an Act (10 Anne ch. 21) restoring patronage (the appointment of the parish-minister) to lay patrons (landowners), contrary to the Act of the Scots Parliament of 1690, which had abolished lay-patronage, and expressly declared itself unalterable. (By reason of the widespread adherence in Scotland to the principle that the appointment of the parish-minister should lie with the congregation concerned, the British violation of the Treaty gave rise to a series of Secessions or Disruptions during the ensuing century, whose convulsive effects in Kirk and State are not yet exhausted.) A morally more justifiable Act, but also in violation of the Treaty, was the British Act of Toleration (1712, 10 Anne ch. 10), which infringed the Presbyterian monopoly by allowing the Episcopalian worship in Scotland. 

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