The Politics of Parchment

The Scottish and American reactions to school shootings have been worlds apart.

The Dunblane Massacre shocked, shamed and scared Scotland: on 13th March 1996, Thomas Hamilton shot dead 16 pupils and one teacher and injured 15 others before killing himself. The almost immediate reaction by the Government in Westminster was a UK-wide tightening of gun control to amongst the strictest in the world. It remains the mass shooting with the highest number of casualties in British history.

In the United States, by contrast, there have been over 2000 school shootings since 1970, with the number and severity increasing. The response has ranged from calls to arm teachers, bullet-proof schoolbags and metal detectors to active shooter drills… but, despite the vast majority of Americans wanting more gun control , the powerful pro-gun lobby, including the National Rifle Association argue that ‘the people’s right to bear arms’, as enshrined in the US bill of rights as the second amendment to the constitution, ‘shall not be infringed.’.

Archaic Archives

To much of the world this appeal to an archaic document, this ‘argumentum ad parchment’ , feels surreal. Incredible.

At first it seems impossible to understand.
It seems ridiculous to many progressive Scots that these words, penned on parchment in 1791, are treated as sacrosanct: dictating and ruining people’s lives now.

Yet right now Nationalists in Scotland are taking even older documents, presenting quotes out of context, and selectively reinterpreting them to justify actions equally contrary to the content, context or comprehension of the original authors.

In this article I have a look at these documents, their claims, their context and their consequences.

The Declaration of Arbroath 1320

The Declaration of Arbroath is a letter written by Scottish nobles to the Pope, with the aim of the rehabilitation and recognition of Robert the Bruce, who had been excommunicated, after both brutally murdering another claimant to the Scottish crown, John ‘the Red’ Comyn when they met in a Church, and failing to turn up at a papal court.

Widely celebrated as a foundation stone of civic Scotland, like many of these old documents, when you actually read them, they can be confusing, amusing and perhaps even a little disturbing.

It lists the Nobles who are sealing their name to the document. Tells a mythological history of the Scottish that starts in Greater Scythia (Iran), spends some time in Spain eventually arriving in Ireland from where they colonised Scotland, first fighting the British then committing the genocide of the Picts. Claiming Scotland by right of violent conquest.

Ultimately it calls for the pope to intervene to, essentially, un-excommunicate Robert the Bruce and have the English recognise him as King of an independent Scotland so that rather than Scots and English fighting each other they can all go and fight in the Holy Crusades.

The Declaration of Arbroath

Essex Boy

There is a paragraph from the Declaration of Arbroath that, in the popular consciousness, might be taken by many as a summary.

“As long as but a hundred of us remain alive, never will we on any conditions be brought under English rule. It is in truth not for glory, nor riches, nor honours, that we are fighting, but for freedom – for that alone, which no honest man gives up but with life itself”.

Declaration of Arbroath, 1320

To many people, that might be all they know, and want to know, of the Declaration. It’s certainly made some opportunistic entrepreneurs money in t-shirts, mugs & gizmos since 2014.

But there is something of an irony in the Declaration’s anti-English sentiments, beloved by the modern anglophobes of Scottish Nationalism

Scottish historians from Stirling University now believe that Robert the Bruce was English born in Writtle in Essex. The earliest claims he was born in Ayrshire date from some time after his death. It’s been established a near contemporary reference previously thought to refer to his father mentions a property that was not built until well after his father’s birth, so it must refer to Bruce himself.

This fits with what else we know. The ‘De Brus’ were Normans who had arrived with William the conqueror. Bruce was a lord of the English Court, the court of Longshanks. He married hid first wife in Oxford at his court. Indeed he was Lord of the Manor of Tottenham in London, where key family lands were. He also held extensive lands in Yorkshire and in Carlisle.

And he fought for Edward I. Before switching sides in the Scottish Wars of Independence, which he did several times, Bruce, from his base at Carlisle, even invaded Scotland with an English Army.

The claim being made by Nationalists is that the Declaration of Arbroath establishes the constitutional principle that the Scottish people are sovereign because the nobles say that if Robert the Bruce ever made them subservient to the English then they would choose someone else as their king.

Correspondence, Not Legislation

The first thing to note is that the Declaration, even at the time, had zero impact on the law or constitution. It is correspondence, not legislation. As it was a private letter, not a public declaration, not an act of parliament, not a royal decree. It made no impact on the historical records of the time and was largely forgotten until translated into English a couple of centuries later. It only began to be considered of some importance in the 1680s – shortly before the following document we will look at.

Aileen McHarg’s article “The Declaration of Arbroath and Scots Law” has detailed look at the legal impact and implications of the declaration, as well as an excellent overview of the provenance of the evidence on Scotland having a different constitution.

Really, it did not even succeed in its aim at the time. The Pope did write to the English King expressing his wish that there should be a truce: but he did not recognise the Bruce as King of Scotland, and there was no truce for another 8 years.

We also don’t have the full context. There were originally three letters: one from the nobles, one from the church, one from the king. The other two are lost to history and we don’t know what light they could shed, or contradictions they would have raised.

Even taking the nationalist claim at face value, that it implies a sovereignty over the king, given the context and time of the document exactly what franchise are we to presume? Certainly not the apocryphal ‘people’ beloved of populists. We don’t imagine these nobels drawing their sovereignty from the serfs they had indentured on their lands.

They do claim to be speaking for all the nobles and common-folk of Scotland… but we also know that shortly before the declaration there had been an attempt to depose Robert as King, probably in favour of Balliol.

At best they are referring to regicide by the Scottish aristocracy – after all, Robert The Bruce had killed John ‘Red’ Comyn, his rival for the throne. It is likely that this paragraph was also a warning to Bruce, who had switched sides several times during the Scottish Wars of independence. In 1297 he had fought against Edward, but later recognised him as king and even From 1302 to 1304 he had been active in Edward’s government of Scotland.

So – an interesting historical document, but no basis for modern constitutional destruction.

Which Declaration inspired which?

There is an apocryphal claim that the Declaration of Arbroath inspired the US declaration of Independence. Indeed ‘Tartan day’ – an American celebration of Scottish culture where traditionally (since 1999) Scottish taxpayers pay for nationalist politicians to have a 5-star holiday in New York, is celebrated on 6th April – the date the Declaration of Arbroath was signed.

There is no historical evidence that the Declaration of Arbroath influenced the Declaration of Independence – indeed, it was not even referred to as a ‘declaration’ until the late C19th – the name most likely inspired by the Declaration of Independence rather than vice versa. However, in the pattern of retro-fitting the document to the narrative, it suits to link the letter of Arbroath to the Declaration of Independence.

The Claim(s) of Rights

There are a couple of documents which both get called ‘Scotland’s claim of right’ . One from 1689 and one from 1989. They have been cited by various politicians, groups and individuals as proof of some claim or other toward Independence. Most recently by the fringe party ‘Alba’ whose unelected MPs Neal Hanvey and Kenny MacAskill sent a letter to that effect:

1689 Claim of Right

Predating the act of union by 18 years, the 1689 Claim of Right offers the Scottish crown to the new King and Queen of England, William of Orange (yes, The Orange Order’s King Billy”) and his wife Queen Mary.

The primary concern of the claim of right act is Protestant superiority, in turn banning the use of churches for Catholic Mass, banning catholics from holding any kind of public office, and banning the printing of popish books.

It does outline that the Catholic King James broke the law by declaring himself an absolute Monarch – saying that he should not have garrisoned soldiers without the consent of Parliament, and that subjects have the right to petition the king.

The claim of Right 1689

Constitutional Loopholes

Fringe nationalists are using the claim of right to insist there are various ‘loopholes’ to independence. One example proposes a route to Independence that involves having the United Nations ratify the claim of rights as an international treaty, agreeing that England is in breach of it, thus invalidating the treaty of Union and making Scotland independent.

Sara Sayers of Salvo calls the claim of right act of 1689 “a miracle” and wants to set up a peoples tribunal- she believes that when their group “Salvo” gets ‘enough signatures (she doesn’t say how many)’ it can then declare itself “The highest court in Scotland.” and then dictate constitutional (or should that be unconstitutional) demands to the Scottish and UK parliaments, with the first order being to go to Westminster and “sack the bastards”.

I suggest that anyone wondering if this is viable simply reads the legislation, which is available here:

It would be curious indeed if the bedrock legislative claim from which Independence springs ended, as the 1698 claim does, with an oath of loyalty to the English King and Queen.

The 1989 Claim of Right

At last, moving out of the era of parchment, and into the era of dot-matrix printing! The 1989 claim is a document drafted by the Campaign for a Scottish Assembly in 1988. In this form, it was signed at the Scottish constitutional convention in 1989 – predating the referendum and formation of the devolved Scottish Parliament. It was also brought up in the Scottish Parliament in 2012 and in Westminster in 2016.

“We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs, and do hereby declare and pledge that in all our actions and deliberations their interests shall be paramount. We further declare and pledge that our actions and deliberations shall be directed to the following ends: To agree a scheme for an Assembly or Parliament for Scotland; To mobilise Scottish opinion and ensure the approval of the Scottish people for that scheme; and To assert the right of the Scottish people to secure implementation of that scheme.”

Campaign for a Scottish Parliament 1989

It was signed by many Scottish Labour MPs and Scottish Liberal Democrat MPs, …but not by the SNP who opposed devolution and so had boycotted the convention, which had completely ruled out Independence. The SNP has initially supported a draft of the claim in 1988.

Like the 1689 claim of right this did not come from parliament, but from unelected conventions. Scottish Nationalists claim the 1989 claim proves “the Scottish people are sovereign” – it does not. It was not passed in a legislative assembly, it is not Scottish or UK law, it was merely a document drafted by a pressure group.

Constitutional academic Professor James Mitchell submitted evidence to parliament in 2012 showing that the 1989 claim of right is ‘non-judicial’ – that is, it has no legal weight and is not enforceable.

It was debated in Westminster, introduced by Patrick Grady …now rather more famous for something else. A motion noted that “the people of Scotland are sovereign and that they have the right to determine the best form of government for Scotland’s needs.” But the non-binding debate didn’t create any legal recognition of the Claim of Right or have any legal significance.

David Torrence writes that the claim of right has been variously interpreted by different people at different times with different agendas. Citing three different uses of the Claim: devolutionist, nationalist and the ‘right to choose’.

The gradualists argue that as it played a part on the path to a parliament it has some force on a path to independence. It played a part in building the consensus for a parliament, which was then achieved through legal means. It is not a vehicle that can be used to avoid building the consensus and the legal path to constitutional change.

It was drafted by the campaign for a Scottish assembly at a convention that specifically ruled out considering Independence – which is why the SNP boycotted it and were not signatories.

As can be seen in the contributions to the debate on the Claim of Right it is fully supported by Labour and Conservatives – because it makes the case for devolution, and for respecting how Scottish voters have determined.

The claim of right in 1989 played an important part in the campaign for a Scottish Parliament. It was about devolution, and its authors were explicit in their aims. As we have already heard, the Scottish National party acknowledged as much when they refused to sign it. They refused to sign it because it had nothing to do with their own cause of independence. So in this debate we have not only the claim of right to consider; we also have the claim of rewriting history. That is a claim that has often been levelled at the SNP.

David Mundell MP (Conservative)

Here we are today, not four years after the referendum, and the issue has never gone away. Labour’s position on the claim of right is unambiguous. We helped to write it; we signed it; we supported it in the past, and we will support it in the future. The claim of right states that the Scottish people have the sovereign right to determine the form of government best suited to their needs. Determining the form of government best suited to their needs is exactly what people in Scotland already do and it is exactly what they did in the 2014 independence referendum. People in Scotland were faced with a choice: to leave the United Kingdom and have the Scottish Government as their sole Government, or to remain in the United Kingdom and have two Governments. They chose the latter, by 55% to 45%.

Lesley Laird MP (Labour)

“Magna Carta
..Did she die in Vain?”

Tony Hancock mocks precisely the sort of ignorant, or wilfully biassed, misuse of Historical Documents, it’s a dogmatic appeal to a higher definitive authority.

The Magna Carta, The Declaration of Arbroath,The Claims of Right, claims about what is in the Act of Union itself, the bill of rights, the US Constitution, the Bible and more all get this treatment.

Do the arguments have legal weight?

While there is no doubt the second amendment to the US constitution is law there’s huge doubt and argument about the principle, the intent and the extent of the effects.

Many of those calling themselves second amendment activists can’t even state the whole second amendment, which reads:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The Second Amendment

There is an excruciating point in this video of Samantha Bee @fullfrontalsamb asking ‘second amendment’ activists to state the second amendment.

Most of them manage:

“…. …. …. The right… to … … bear Arms… … …”

Samantha asks them how they know which bits to remember: is it the bits that support what they already believe? (Yes)

Subjective Interpretation: not sacrosanct decrees

Fractions of selected documents are cherry-picked and held up as proof or justification of existing beliefs. What isn’t convenient is ignored, sometimes not even known never mind acknowledged.

How our historical path informs modern decision making is subjective Interpretation.The second amendment existed when many republicans were in favour of gun control: just like the Bible existed when republicans were pro-choice.

Nixon wanted a federal ban on handguns.
George Bush cancelled his NRA membership while in office in protest.
Even Donald Trump, at one point, called for a ban on assault weapons and a 72-hour cooling-off period.

We see the pattern.

A fourteenth-century plea to the Pope, a private letter with no legislative intent or effect then or now, shoring up the claim of a dubious character who murdered a rival in a church is historically interesting but not a firm foundation on which to partition an island.

A sectarian claim from the unelected estates, setting out the rights of Protestantism to take precedence over Catholicism, which specifically asks the King and Queen of England to rule Scotland and swears an oath to that effect is not a sound ground on which to break up the UK.

A right written in time of revolution, designed to allow *well regulated* militia to protect the democratic interests of the people should not be used to justify free and easy access to weapons of mass murder, or to deny mental health checks or cooling off period for gun ownership.

A non-judicial protest statement, signed by unionists, from a convention that was formed on the basis that it specifically ruled out Independence as a possible constitutional settlement is not a cause for constitutional vandalism.

These are desperate claims, and while they are interesting historical documents, and while we don’t have a codified constitution, that does not make it a free-for-all. A shortcut or magic bullet to cut through the reality of 300 years of shared sovereignty.

The Second Amendment to the US Constitution was based on the right to keep and bear arms in English common law influenced by the English Bill of Rights of 1689: the same year as the Scottish claim of rights, which was the equivalent Scottish legislation, and the divergent paths on gun control show the world has moved on.

The interpretations rely on subjective revision of what might have been meant, and in every case rely on ignoring conflicting information. The context of the declaration of Arbroath. The 1689 Claim of Right’s declaration of loyalty to the English crown. The fact the 1989 claim of right was from an unelected body that had specifically ruled out independence as a constitutional destination!

Should we take this seriously?

“I think one thing that should be distinguished here is that the media is always taking Trump literally. It never takes him seriously, but it always takes him literally. … I think a lot of voters who vote for Trump take Trump seriously but not literally…”

Peter Thiel

I think that these claims can be taken seriously, but not literally. They are unlikely to push some legal magic bullet to independence, but this type of appeal is part of the nationalist trait of calling back to an idealised past. The rhetoric may not be a legal path, but then when that is frustrated the audience’s blood is up.

But suppose by some means, fair or foul, one of these ancient documents was used to partition the United Kingdom. If they took their case to the United Nations and won, with the UK somehow not using our security council veto.

What would that acrimonious divorce look like? How long would it take? Would the UN send in peacekeeping operations to man the border?! What would be the impact? Would Nicola Sturgeon have a free hand to dictate the constitution of Scotland or would it be at the whim of the Salvo signatories declaring themselves Scotland’s highest court and tribunal of the people.

Umberto Eco said:

“The lunatic is all idée fixe, and whatever he comes across confirms his lunacy. You can tell him by the liberties he takes with common sense, by his flashes of inspiration, and by the fact that sooner or later he brings up the Templars.”

Umberto Eco

Perhaps, if he was in Scotland today he would say.

“The Nationalist is monomaniacal, and whatever he comes across confirms his obsessive need for partition. You can tell him by the liberties he takes with common sense, by his flashes of interpretation, …and by the fact that sooner or later he brings up the Declaration of Arbroath”

Bingo Demagogue

Published by Bingo Demagogue

Twitter - @BingoDemagogue

2 thoughts on “The Politics of Parchment

  1. The current ruling of the US Supreme Court is that the right of arms is pnot dependent on belonging to an organized militia. That, like the ruling regarding abortion could be changed by a future court. Other rulings of the Supreme Court have been changed also. The requirement of a vote if three quarters of the states makes the constitution itself almost impossible to amend. Much easier to reinterpret the language and meaning then to amend the words themselves. Perhaps Scotland should follow that route, or have an annual vote on independence. One year the nationals might win the vote. Then could they leave. South Carolina and a few other states once voted to leave the Union. The Union invaded and forced them back in whether they wanted back in or not. That could happen in Britain also.


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