Does the Act of Union ratify the Claim of Right?

Those who follow the Salvo movement in Scottish independence circles believe that, notwithstanding the union of 1707, Scotland remains to this day a sovereign nation with its pre-1707 constitution still intact. 

They base this on a belief that the Acts of Union ratify the Claim of Right (1689) which Salvo takes to be the constitution of pre-union Scotland (or, alternatively – because the logic is not always easy to follow – if not itself that constitution, then such a fundamental part of it that ratification of the Claim of Right (CoR) is tantamount to ratification of the constitution). And that being so, that the Union agreed upon in the Treaty and Acts of the Scottish and English Parliaments ratifying it did not intend that the two countries merge their identities into a single new kingdom as is the orthodox view. Rather, they intended that Scotland and England enter into a much looser association under which each retained their own constitution and sovereignty not unlike the relationship between member states of the EU. But instead of abiding by such a relationship, England simply annexed Scotland in 1707. 

There’s a lot that could be said about Salvo's interpretation of constitutional history, not least that Article I of the Treaty of Union provides that “the two Kingdoms of Scotland and England shall … be united into One Kingdom”, not “united in an association of Kingdoms” or some such wording. But for the time being I want to concentrate on the single issue of whether the Acts of Union ratify the CoR. 

It is true that the Acts of Union (but not the Treaty) mention the CoR in a context which also includes the word “ratifies”. But it’s not the CoR that’s being ratified. What’s being ratified is a number of Acts of the Scottish Parliament establishing the presbyterian nature of the Church of Scotland. These Acts, the Acts of Union narrate, were passed pursuant to – “in prosecution of” is a phrase also used – the CoR. 

To understand this fully, we need to look at the historical context. Since the Reformation (1560 in Scotland), the Scottish church had oscillated between periods of episcopacy (also known as ‘prelacy’ - government of the church by Crown appointed bishops) and presbyterianism (a church with no bishops and no order of clergy higher than presbyter – i.e. ordinary parish minister – governed by a hierarchy of assemblies of presbyters called presbyteries, synods and, at the top, the general assembly). At the restoration of King Charles II in 1660, episcopacy (prelacy) had been restored after a period of presbyterianism but it was by no means ever universally popular. By the late 1680s, presbyterianism was back in the ascendant so there was included in the Claim of Right (11 April 1689 – the document which deposed King James VII and invited William & Mary to take the Crown) the following clause:- 

That prelacy and the superiority of any office in the church above presbyters, is and hath been a great and insupportable greivance and trouble to this nation, and contrary to the inclinationes of the generality of the people ever since the reformatione (they haveing reformed from popery by presbyters) and therfor ought to be abolished 

Note the wording at the end there: prelacy (episcopacy) was not thereby abolished in the CoR itself, it was to be abolished. Therefore, in prosecution of the CoR, the following further legislation was subsequently passed:- 

1689, chapter (c.) 3 – “Act abolishing prelacy” 

This Act began with the narrative: 

Whereas the … Claim of Right of 11 April last, declared that prelacy and the superiority of any office in the church above presbyters, is and has been a great and unsupportable grievance to this nation … and, therefore, ought to be abolished

and then went on to do what it said on its tin: abolish prelacy (episcopacy) 

1690, c.2 – “Act restoring the presbyterian ministers who were thrust from their churches since 1 January 1661”

The opening narrative of this Act was: 

Forasmuch as by an act of this present parliament [i.e. 1689, c.3 – above] relative to and in prosecution of the Claim of Right, prelacy and the supremacy of church officers above presbyters are abolished, and that many ministers of the presbyterian persuasion since 1 January 1661 [the restoration of Charles II] have been deprived of their churches or banished for not conforming to prelacy …

It then went on to restore to their parishes such of these deprived ministers as were still alive. 

1690, c.7 – “Act ratifying the Confession of Faith and settling presbyterian church government” - 

The preamble of this Act included that: 

by an article of the Claim of Right, it is declared that prelacy and the superiority of any office in the church above presbyters is and has been a great and insupportable grievance and trouble to this nation, and contrary to the inclination of the generality of the people ever since the Reformation, they having reformed from popery by presbytery and therefore ought to be abolished, and likewise by an act of the last session of this parliament prelacy is abolished [i.e. 1689 c.3 above]. 

It then went on to re-establish presbyterian church government as it had first been established by an Act of Parliament in 1592 during the reign of King James VI. 

Fast forward now fifteen years to negotiations for the union. The process began formally with an Act of the Scottish Parliament (1705, c.4 – “Act for a Treaty with England” ) which authorised the appointment of commissioners to treat for union. This Act made it clear that 

the said commissioners shall not treat of and concerning any alteration of the worship, discipline and government of the church of this kingdom as now by law established

but when the treaty came to be debated in the Scottish Parliament, it was noted that there was nothing in it guaranteeing the continuation of the presbyterian Church of Scotland in the proposed united kingdom. This was important in light of the fact that the Church of England was still episcopal. There was no disagreement between England and Scotland on this issue, though, so the mutually agreed solution adopted to allay the concerns was not to amend the treaty to include a clause for the continuation of the Scottish church but to deal with the matter in the parliamentary ratifications of the treaty. Threfore, the Scottish Parliament passed an Act (1706, c.6 – “Act for securing of the Protestant religion and presbyterian church government) providing that the presbyterian church as established by the 1689/90 legislation in described earlier would continue after the union. We’ll come to the other terms of this Act presently but for now note that it concluded with the words:- 

this act of parliament and settlement therein-contained shall be inserted and repeated in any act of parliament [ratifying the] treaty or union between the two kingdoms, and that the same shall be therein expressly declared to be a fundamental and essential condition of the said treaty or union in all time coming. 

The Act ratifying the Treaty of Union (the Scottish Act of Union, in other words) was, in fact, passed the same day (so it’s 1706 c.7). In light of the historical background I’ve described its terms now make perfect sense. It begins:- 

 

The estates of parliament, considering that articles of union of the kingdoms of Scotland and England were agreed on 22 July 1706 by the commissioners nominated on behalf of this kingdom … and the commissioners nominated on behalf of the kingdom of England … which articles were, in all humility, presented to her majesty [Queen Anne] upon 23 July, and were recommended to this parliament by her majesty's royal letter of the date 31 July 1706. And that the said estates of parliament have agreed to and approve of the said articles of union, with some additions and explanations as is contained in the articles hereafter inserted. 

 

And likewise, her majesty, with advice and consent of the estates of parliament, resolving to establish the Protestant religion and presbyterian church government within this kingdom, has passed in this session of parliament an act entitled, Act for securing of the Protestant religion and presbyterian church government, which, by the tenor thereof, is appointed to be inserted in any act ratifying the treaty and expressly declared to be a fundamental and essential condition of the said treaty or union in all time coming. 

 

Therefore, her majesty, with advice and consent of the estates of parliament, in fortification of the approbation of the articles as above-mentioned, and for their further and better establishment of the same, upon full and mature deliberation upon the foresaid articles of union and act of parliament, does ratify, approve and confirm the same, with the additions and explanations contained in the said articles, in manner and under the provision after-mentioned, whereof the tenor [i.e. text] follows. 

 

There follows the twenty five articles (clauses) of the Treaty of Union and then:- 

 

Follows the tenor [i.e. text] of the foresaid act for securing the Protestant religion and presbyterian church government. 

 

“Our sovereign lady and the estates of parliament, considering that by the late act of parliament [1705 c.4] for a treaty with England for a union of both kingdoms it is provided that the commissioners for that treaty should not treat of or concerning any alteration of the worship, discipline and government of the church of this kingdom as now by law established, 

 

which treaty, being now reported to the parliament and it being reasonable and necessary that the true Protestant religion, as presently professed within this kingdom, with the worship, discipline and government of this church, should be effectually and unalterably secured, 

 

therefore, her majesty, with advice and consent of the said estates of parliament, does hereby establish and confirm the said true Protestant religion and the worship, discipline and government of this church, to continue without any alteration to the people of this land, in all succeeding generations. 

 

And more especially, her majesty, with advice and consent foresaid, ratifies, approves and forever confirms the fifth act of the first parliament of King William and Queen Mary [since renumbered 1690 c.7] entitled, act ratifying the Confession of Faith and settling presbyterian church government, with the whole other acts of parliament relating thereto in prosecution of the declaration of the estates of this kingdom, containing the Claim of Right, bearing date 11 April 1689. 

 

And her majesty, with advice and consent foresaid, expressly provides and declares that the foresaid true Protestant religion contained in the above-mentioned Confession of Faith, with the form and purity of worship presently in use within this church, and its presbyterian church government and discipline, that is to say the government of the church by kirk sessions, presbyteries, provincial synods and general assemblies, all established by the foresaid acts of parliament pursuant to the Claim of Right, shall remain and continue unalterable, and that the said presbyterian government shall be the only government of the church within the kingdom of Scotland. 

 

[Here follows provisions about the presbyterian qualifications of teachers at the Scottish universities and oaths more generally, then] 

 

And lastly that, after the decease of her present majesty, whom God long preserve, the sovereign succeeding to her in the royal government of the kingdom of Great Britain shall, in all time coming, at his or her accession to the crown, swear and subscribe that they shall inviolably maintain and preserve the foresaid settlement of the true Protestant religion with the government, worship, discipline, right and privileges of this church as above established by the laws of this kingdom, in prosecution of the Claim of Right.” [Emphasis added]

 

Thus we can see that what is being ratified (and sworn to be maintained and preserved by incoming monarchs) is not the Claim of Right but Acts of Parliament establishing the presbyterian church passed pursuant to (or “in prosecution of”) the CoR. 

 

The English Act of Union also narrated the existence of the Scottish Act 1706, c.6 securing the Protestant religion and presbyterian church government and included its full text after the twenty five articles of the treaty exactly as in the Scottish Act of Union. So the English Act no more 'ratifies the CoR' than the Scottish one does.

 

Finally, for completeness' sake, we should add that exactly the same happened in England in mirror image terms: the English Act for the appointment of commissioners to treat with Scotland for union prohibited them from negotiating any change to the (episcopal) Church of England. Shortly before the English Parliament passed the English Act of Union, it passed an Act (6 Anne, c.8) guaranteeing the continuity of the C of E as established by an Act passed in reign of King Charles II called the Act of Uniformity 1662. The full text of 6 Anne, c.8 is included in the English Act of Union after the articles of the treaty. (The Scottish Act of Union doesn't include the full text of 6 Anne, c.8 because it hadn't been passed yet - instead, the Scottish Act mentions (right at the end) that it is going to be passed and, when it is, it won't require any further ratification by the Scottish Parliament.)