Antecedently, it has been argued, the Treaty was fundamentally null and void. The Scots and the English Parliament were equally without any electoral mandate to institute a “United Kingdom.” In the Scots Parliament there was not a two-thirds majority of those present and voting. Further, the Scots Parliament in question was unconstitutional, having been elected under William and Mary in 1689 and continued into Anne’s reign without a general election (see Sir R. S. Rait, The Parliaments of Scotland, 1924, p. 319). Moreover, the Act ratifying the Treaty can be challenged under Scots Law as obtained by corruption (D. H. McNeill, The Scots Independent, Sept. 1942). It is noteworthy that on 10th October, 1745, Prince Charles Edward, as Regent for his father, issued at Edinburgh a proclamation declaring, inter alia, his determination on no account to ratify the Union, but he did not summon a Scots Parliament, though urged to do so (Struthers, History of Scotland II., 241/1).
The British Parliament has as a rule, proceeded as though it were merely the English Parliament continuing. Dr. Mackinnon quotes (p. 421) an English Member’s exclamation in 1711, “Is not Scotland subject to the sovereignty of England, and henceforth to be governed according to English maxims?” In our own day we find Commander Locker-Lampson, asking “Is not Scotland England?” (15/5/41). English theorists of the British Constitution have usually held that the Treaty is of no superior validity to any Act of Parliament e.g., Maitland (Constitutional Law, p. 332) states that, “All laws may be repealed by the ordinary legislature, even the conditions on which the English and Scottish Parliaments agree to merge themselves in the Parliament of Great Britain.” A. V. Dicey (Constitutional Law, p. 141) asserts that: “Should the Dentists’ Act, 1878, unfortunately contravene the terms of the Act of Union, the Act of Union would pro tanto be repealed; but no judge would dream of maintaining that the Dentists’ Act, 1878, was thereby rendered invalid or unconstitutional.” An eminent Judge in Scotland, the Lord Justice-Clerk (Lord Cooper), recently uttered the dicta (in Leonard versus Patterson, Procurator-Fiscal, Hamilton, on appeal, 22nd Sept., 1942): “In regard to this Treaty of Union, Parliament may tear it up to-morrow if it pleases;” “The fact that the Treaty of Union is not fundamental is what differentiates the British from the American Constitution;” “Scotland was incorporated in England in 1707.” Cooper changed his mind about this in 1953!
It is notable that the British Parliament has at times expressly varied portions of the Treaty of Union, in which regard attention should be paid to the Statute Law Revision Act of 1906 (6 Ed. “VII.” ch. 38), “An Act to further promote the Revision of the Statute Law by repealing Enactments which have ceased to be in force or have become unnecessary (4th Aug., 1906).”
A Note prefaced to the Schedule states: “The Enactments mentioned in the third column to this Schedule are wholly repealed unless the repeal is expressly confined to a specified part of the Enactment.” Among the Enactments mentioned in the third column to the Schedule is the Act Ratifying and Approving the Treaty of Union of the Two Kingdoms of Scotland and England. This (the Treaty of Union) is stated to be repealed “In part, namely: Art. v., Art vi., from And seeing to the end. Art. viii., Articles x to xv. Art. xvi, from and a mint to the end. Art. xvii., Art. xix., from And that after the Union to the end. Art. xxii., from And that when to the end.”
It will be recalled that the parts not repealed remain valid. Therefore, even if one holds, with Lord Cooper, that the British Parliament can tear up the Treaty, it is worth observing that it has not yet formally done so.
Readers of the foregoing Notes upon the Articles and of Dr. Mackinnon’s The Union of England and Scotland and Dr. Agnes Mure Mackenzie’s Scotland in Modern Times, where breaches of various points of the Treaty are mentioned, will perhaps take the view that the Treaty has become void and invalid and ceased to be binding, if indeed it ever was so. A contemporary English layman, Sir Richard Steele, held that a single breach voided the whole instrument, writing (in The Plebian): “The terms of the Union are plain and absolute; nor can any privilege, liberty, or property, secured by it to the meanest subject of either nation be violated, or altered against his will, and no satisfactory reparation done him, without infringement of the whole Act, and leaving the persons so injured at liberty to avenge by force what was done by it; for the protection and obedience are reciprocal, and withdrawing the one, discharges the other.” The well-known English authority, W. E. Hall (Treatise on International Law, 1924, IV., p. 414) states that: “A Treaty becomes void… when an express condition, upon which the continuance of the obligation of the Treaty is made to depend, ceases to exist.”
The fact that past violations may have been in practice condoned is not justification in law for further breaches.
It is an old question whether the British Parliament has power to enact its own dissolution. In the debates of 1712 for example, Mr. Speaker Bromley and the Earl of Oxford both asserted that it had no such power. In virtue of its charter of incorporation, Treaty Article III., the British Parliament is authorised only to make representations to the Sovereign on behalf of the United Kingdom. It would therefore seem within its powers to represent to the Sovereign the expediency of summoning separate national Parliaments for Scotland and England, whereafter, without formal motion, the U.K. Parliament might merely cease to act, as the Scots Parliament ceased in 1707. Thereafter the Scots and English Parliaments separately might make whatever representations were thought proper concerning the restriction or abdication of the common Sovereign’s Sovereignty with respect to either. Whatever the theory may be, the British Parliament has made no bones about first of all uniting Great Britain with Ireland, and then disuniting it from most of Ireland, and it is within recent memory how a British Government officially proposed a union with the French Republic (Hansard 362 H.C. Deb. 5s, 60, 18/6/1940).
AIMS OF THE UNION – REAL AND PROFESSED.
The professed aim of the Unio was disclosed in a Royal Letter, read to the Scots Estates on 3rd October, 1706: “An entire and perfect Union will be the solid foundation of lasting Peace. It will secure your Religion, Liberty and property, remove the animosities amongst yourselves, and the jealousies and differences betwixt Our two Kingdoms; It must increase your Strength, Riches and Trade, and by this Union the whole Island being joyned in affection, and free from all apprehension of different Interests, will be enabled to resist all it’s Enemies, Support the Protestant Interest every where, and maintain the Liberties of Europe.”
Another aim was revealed by the Speaker of the last English and first British House of Commons (in which 45 politicians from Scotland had been given seats), when he “informed the House with satisfaction that they had catcht Scotland and would keep her fast” (Dr. A. M. Mackenzie, Scotland in Modern Times, p. 81).