SCOTLAND’S CLAIM OF RIGHT PART 3

The Scottish Constitutional Compact

Power in Scotland is vested in the people and loaned to the monarch and parliament for the good of the realm. A bit like a bank loan, this power loan has always carried certain conditions which form a compact between the lenders, (the people), and the borrowers, (the government). Under that compact no government may infringe the rights and liberties of the people, or violate the laws that protect them, on penalty of removal. This is the heart of the Scottish constitution, popular sovereignty.

The compact was embodied in two separate assemblies. One, known from the 16^th on as the Convention of the Estates, (Assembly of the Communities), represented the lenders, the nation or people. The other was the parliament or Three Estates which, along with the monarch, was the borrower, the government. 

A near universal misunderstanding treats these two bodies as though they were somehow one and the same parliament. This may be because the Convention has no parallel in English governance, where popular sovereignty is an alien concept and where an absolute parliament in place of an absolute monarch looks like a paragon of democracy. But through a Scottish prism, Scotland’s two assemblies unquestionably represent the two sides of the constitutional compact.

Parliament

The Scottish parliament, in common with that in other European nations, was exclusively summoned by the monarch and was considered a permanent body, however often it sat. It contained a number of elected members from the shires and burghs as well as nobles and prelates. Its role was to enact the decisions of the monarch, though it not infrequently provided important checks and balances to the royal prerogative.  And it had no pretensions to the absolute sovereignty claimed by the English Parliament from 1689 on, quite the reverse. 

Salve jure cujuslibet

The Scottish Parliament acknowledged the Crown’s responsibility to the people  through the practice, from 1592, of offering ‘salvo’ at the end of every session: any person who wished to do so was invited to challenge the legitimacy of any legislation that prejudiced their civil rights or freedoms. (It was made law by the Act salve jure cujuslibet in 1663.)

“After the Act of Union was passed on the 16th of January 1707 there was one further item of business, as there was at the end of every session of the Scottish parliament and that was the Act of Salvo (salve jure cujuslibet – let whosoever sue the Crown). This was a gesture respectful of the Scottish constitutional arrangement whereby the People are sovereign and every subject of the kingdom must be respected both as an integral and individual unit of sovereignty, much like any part being representative of the whole of a hologram. Every subject was thus left with the means of escape, the private right to contract out if they felt they had been wronged by the action of the Crown. The English parliament, in 1689 having reduced its subjects to citizens behoven to the sovereign court of Westminster gave no such opportunities for redress and still does not, but the parliament in England cannot claim now to have inherited powers over the subjects of Scotland that the Scottish Parliament did not have. 

There is a facility in Scots Law, for example, whereby, if the People choose to universally and completely reject a piece of legislation, the Court of Session can declare that law to be ‘in desuetude’ or obsolete.”  

The Convention of the Estates

The existence of a body representing not the monarch or the monarch’s government but the ‘community of the realm’ can be traced from the time of the Guardians of the Realm in 1286, through the period of the General Council, (from the late 1300’s), to its final expression as the Convention of the Estates, (meaning ‘assembly of the communities’). 

The Convention of the Estates did not govern except in the absence of a legitimate monarch (and, therefore, of the parliament). It was not a permanent body but was recalled as needed. It could be – and often was – called by the monarch, (especially when funds ran low), but it was not the instrument of the crown. It was the broker between the people and the government, agreeing taxes, drafting legislation and, when necessary, recalling the loan on the basis of breach of contract, which is to say deposing the monarch and government of the day. 

The very real extent of its powers was demonstrated dramatically and for posterity in 1689 when it met on behalf of the nation and declared, in the Claim of Right, that James VII had broken the compact with the people, had “invaded” the fundamental constitution of Scotland and had thus forfeited the throne.

The ‘Revolutionary Convention’ members would be appointed to the new parliament of William II, replacing the parliament that had been abolished along with the rule of James VII. The Convention itself has never been recalled. But so long as the sovereignty of the people remains the basis of Scotland’s constitution, the Convention remains as a legitimate mechanism of popular authority. 

BEAT THE CENSORS

Sadly some sites had given up on being pro Indy sites and have decided to become merely pro SNP sites where any criticism of the Party Leader or opposition to the latest policy extremes, results in censorship being applied. This, in the rather over optimistic belief that this will suppress public discussion on such topics. My regular readers have expertly worked out that by regularly sharing articles on this site defeats that censorship and makes it all rather pointless. I really do appreciate such support and free speech in Scotland is remaining unaffected by their juvenile censorship. Indeed it is has become a symptom of weakness and guilt. Quite encouraging really.

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