Scotland-So long as but a hundred of us remain alive

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The_Nidhogg
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Scotland-So long as but a hundred of us remain alive

Post by The_Nidhogg »

So this year marks the 700th anniversary since the battle of bannokburn where the Robert I decisively defeated the English army and effectively ended the Scottish Independence war in his favour. In 1320 supporters of the king sent a letter to the pope requesting that he revoke the excommunication of Robert issued before his coronation. The letter also contained a moral argument for the Kings legitimacy and a request that he be recognised as the de jure King of Scots independent of and equal to the King of England. This letter is known as the Declaration of Arbroath and famously includes the passage:
Yet if he [Robert I] should give up what he has begun, seeking to make us or our kingdom subject to the King of England or the English, we should exert ourselves at once to drive him out as our enemy and a subverter of his own right and ours, and make some other man who was well able to defend us our King; for, as long as a hundred of us remain alive, never will we on any conditions be subjected to the lordship of the English. It is in truth not for glory, nor riches, nor honours that we are fighting, but for freedom alone, which no honest man gives up but with life itself.
This unusual passage has led to some in Scotland questioning whether the doctrine of Parliamentary sovereignty applies in Scotland or if rather a form of popular sovereignty applies. The prevailing view was that the doctrine of parliamentary sovereignty was transposed to Scotland with the treaty of union in 1707. However in recent years there has been a growing suggestion that there is a weakening of the doctrine with power moving to the devolved Scottish Parliament in 1997 and increasing restrictions on parliaments power from the EU and ECHR. Now the counter argument is that on paper Parliament has to consent to all these things and is only bound by the EU because it consents to be and could revoke the varies devolved powers if it chose to.

I personally am not convinced by this line of argument: I do not think Westminster could actually dismiss Holyrood without guaranteeing Scottish secession. It also no longer seems politically viable to make certain constitutional changes without referendums- see EU membership and the attempt to change the voting system. While the legal reality has not yet caught up with the political one, eventually it will and in Scotland I believe that will result in a change from absolute parliamentary supremacy to a more popular based one- not that this change in legal theory will have much practical effect!

Naturally one would expect the sovs to base an opposition of Parliamentary Sovereignty not on the evidence of actual weakening in recent years but instead on a 300 year old letter to the pope. This is actually a fairly common thought amongst the population here and quite a mainstream view- that the Monarch in Scotland unlike in England was always beholden to the people for authority after Arbroath. This, while a pleasant image of an enlightened medieval monarchy unfortunately ignores the fact that the Stewart dynasty ruled as absolute monarchs and were only 'accountable' on the rare occasions that a relative could raise an army large enough to depose them- there is no evidence they believed themselves beholden to the people. Indeed when they came to inherit the English throne their view of the divine right to rule led to a great deal of conflict.

But the ssotl go one better, rather than subscribe to a mainstream but incorrect theory on the binding nature of the document, they believe they can, by declaring themselves to be 100 Scots, gain their freedom from westminster and receive allodial title (???) to Scotland.

WHAAAAATTT???

there is a discussion group on their website that is advertising for 100 scots to get together to "do the declaration of Arbroath". worryingly they have their 100 volunteers.

Disappointingly they are wary of leaving a paper trail for their little magic paper takeover, but the discussion post does give a tantalising hint into their thinking. The general plan seems to be send 100 COR's to westmister and simultaeniously declare the declaration of Arbroath and then ????? and then own Scotland removing all authority above freemen. simples! flawless!

They seem to think that as the feudal system was abolished in 2007 the declaration of Arbroath would no longer result in a king when they 'use it' and instead would grant them ownership of Scotland. Somebody should really point out to them that the feudal system was only imported here in the 1100's and that we had Kings looooong before that.

I argued earlier that the conduct of the Stewart monarchs show that the declaration was not historically considered law, however I accept that may not be enough especially with an absence of cases explicitly stating so. However Scotland is not a purely Common Law system- we have a civil law side as well. In Scots law Institutional writers played a large part and great weight was given to their writings, while the increased amount of legislation has rendered them less commonly cited in scottish courts than the were 60 years ago they remain highly persuasive. So lets take a look at these old scots jurists and see what they have to say about the declaration. Viscount Stair the 'father of scots law ' and the most influential of Scots jurists describes the law of Scotland in great detail to the point that even today he is cited in courts despite being dead for over 300 years. He never mentions the declaration of Arbroath once. Not even once. In a work longer than the bible intended to summarise the law. The modern stair memorial encyclopedia (an work that is continually updated to be a statement of the law of Scotland) it is described only in a historical context and not as law today.

The fact that they believe that the reference to 100 scots remaining alive is a quota of some type that must be met rather than an expression illustrating the determination of the people who wrote the letter is astounding. I mean why do they think the pope and the king of England eventually agreed to acknowledge the independence of Scotland? was it because of 100 COR's or was it something to do with victory in a war and an army of scots who had fought for a decade and were ready to keep fighting? I mean if COR's are so effective why not just have sent them and saved all the expense and misery of the war?

As I said the page is cryptic but one comment hints at the date they've picked as the 18th September- the day of the referendum. If the nation chooses to vote no (as the polls seem to suggest) that would mean opposing the direct sovereignty of the people as a body politic with the doctrine of individual sovereignty. Good luck enforcing that.

The sheer stupidity of it all is frustrating in the extreme.

There is more idiocy derivative of the referendum and another old document that certainly is part of Scotland's constitution but I will deal with the other document in another thread and the rest of the confusion about popular sovereignty and the referendum on another night There's only so much of their nonsense I can wade through on any one night!

Apologies for the inferior quality of this post, parliamentary sovereignty in scotland is a difficult subject and finding reliable information on it is wearying. As is reading through chunks of Stair's archaic type.

the declaration of Arbroath can be found in English here:
http://www.nas.gov.uk/downloads/declarationArbroath.pdf

the ssotl 100 group here:
http://scottishsovereignsontheland.ning ... 1#comments

And this article is a good analysis of Parliamentary sovereignty is a quite excellent if a little out of date coming as it does before the landslide nationalist victory that forced the westmister parliament to devolve the power to hold a referendum or face having it taken from them, the rise in profile of the EU debate and the move towards referendum on membership, the referendum on AV voting and the requirement that any future grant of powers to the EU be subject to referendum.All of which I reguard as being something of a tipping point for the political reality of parliamentary sovereignty in Scotland.

Parliamentary Sovereignty: A Scottish Perspective CSLR 2010, 6(1), 135-154


yours,

The Nidhogg
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Re: Scotland-So long as but a hundred of us remain alive

Post by AndyK »

Wow. That certainly is a large minyan.
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grixit
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Re: Scotland-So long as but a hundred of us remain alive

Post by grixit »

It only takes a minyan, Girl
To call above!
Three cheers for the Lesser Evil!

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