Back in the Day: How Union came under threat in its fledgling years

Answers: Only if we know our history of nearly 1300 years as a nation can we realise that we are not going to win independence but regain it. Our history is what informs us as Scots and knowledge of that history is vital if we are to regain the nation. I make a small contribution to educating people about our history and only The National allows a history writer – note, not a professional historian – the space to tell the stories Scotland needs to know.

Last week saw an important example of how our ancient history still has resonance and meaning today. In the Court of Session, Reverend Dr William Philip and 26 other ministers and church leaders of Christian churches of various denominations won a landmark judicial review which decreed that the Government-enforced closure in January of places of worship was unlawful.

Lawyers for the clergy who took the case, known in Scots civil law as the petitioners, argued the Government regulations contravened “the historic freedom of churches in Scotland to practise religion and threaten the independence of the church”.

In a 72-page judgment that is a classic of Scottish jurisprudence at its best, Lord Braid gave a comprehensive and detailed account of the case, especially the historical background which was clearly a determining factor in his decision-making.

He wrote: “Counsel [for the petitioners] referred to the General Assembly Act 1592, the Confession of Faith Ratification Act 1690, the Act for Securing of the Protestant Religion 1706, the Union with Scotland Act 1706, and the Union with England Act 1707.

“In particular, the 1707 Act guaranteed to Scotland in all time coming the independence of its church (and for that matter, its legal system). The consequence was that the Westminster Parliament simply had no power to interfere in the church, nor could it confer power to do so on any other body.

“It followed that the Coronavirus Act 2020, insofar as it permitted the closure of premises, could not apply to Scottish churches. The regulations threatened the independence of the church. The petitioners stood upon the shoulders of the Covenanters.”

There you have it – Scottish history at the heart of a very modern dispute. “On the shoulders of the Covenanters” – what a magnificent phrase, but I doubt many Scots would even know what that meant, so much has”Scottish” education been about British, ie English, history.

Interestingly, Lord Braid did not rely on the constitutional/historical argument but on the European Convention on Human Rights – a subject I will return to in future as Scots played a large part in its formation – to make his judgment that the ban on church worship was not proportionate, and therefore unlawful. In any case, the Scottish Government had already decided to relax the regulations on church worship.

I have long argued that someone with deep pockets could fund a legal challenge to the Acts of Union as they have been breached incessantly, and are therefore not fit for purpose. But that’s somewhat above my pay grade ... So today we reach the latest part of this short series which is aimed at showing just how shaky was the Union in the years after 1707 – the stuff you never read in British histories of the period. The series will end in The National’s edition of Tuesday, April 20, when I will tell the story of the aftermath of the Battle of Culloden, the 275th anniversary of which is on April 16.

Last week I showed how, in 1713, a bid in the House of Lords to repeal the Union failed by just four votes. What I did not mention was the fact the eventual voting showed that a number of ENGLISH peers were also in favour of dissolving the Union, largely because they had taken a strong personal dislike to Scottish parliamentarians and also because they had genuine concerns that the Scots were not playing their part in this newly-minted Union – tax avoidance and smuggling on a grand scale continued to be the norm in many parts of Scotland.

The acknowledged leaders of the backlash against the Union were the Earl of Mar and the Earl of Seafield, but another of those who voted for repeal was John Campbell, 2nd Duke of Argyll, who had been one of the chief promoters of the Union – he was made Earl of Greenwich for that activity. The fact he was the commander-in-chief in Scotland shows the extent of dislike for the Union at that time. The hated Malt Tax – which was never put into action at that time –following the anti-Kirk legislation had pushed the Union to the brink of extinction, but it survived, and after Queen Anne died on August 1, bringing to an end the Stuart dynasty, George I, Elector of Hanover, as the Protestant nearest in line of succession, arrived in London seven weeks later to claim his throne.

Remember that the Act of Union had imposed the Hanoverian Protestant succession upon Scotland, and there was still considerable loyalty to the Stuarts, with James VIII and III, as he was known to the Jacobites, the king across the water.

James Stuart now issued a proclamation that he would free Scots “from the hardships they groan under on account of the late unhappy Union, and to restore the Kingdom to its free and independent state”.

King George, rather than trying to appease the Jacobites in Scotland and England, purged his Government of ministers he considered disloyal. One of those was the Union promoter the Earl of Mar, John Erskine, or Bobbing John as he was known. He switched sides again and organised an army, mostly of clansmen, before raising the standard for King James VIII and III at Braemar on September 6, 1715.

I have written before about the 1715 Rising, and if the Earl of Mar had been a better general, the Battle of Sheriffmuir would have been won and all of Scotland would have fallen to the Jacobites. The Hanoverian Government commander that day? John Campbell, the Duke of Argyll, showing how loyalties shifted constantly in those days.

As it was, when James Stuart arrived at Peterhead from France in a single ship with no re-inforcements, the Rising was already petering out. Advised to flee for his own safety, James left for France from Montrose on February 4, 1716. The immediate threat to the Union was over, at least for the time being.

Then King George made a monumental error of judgment. Jacobites including English gentry were hunted down and several were beheaded or hung, drawn and quartered for treason, while at least 700 ordinary soldiers were sold into slavery. Numerous Scottish lords fled to France, and show trials continued for the rest of 1716.

THAT year the Westminster Parliament passed the Papists Act, in which anyone found to be a Roman Catholic was forced to swear oaths of allegiance to the Crown and abjure the Stuarts.

It was yet another example of the Union being used to suppress Catholicism and outraged the Catholics of England, the small number left in the Highlands and practically the whole of Ireland.

With public opinion turning against King George and his Government over the brutal tactics employed against the Jacobites, political leaders in Parliament really began to fear a popular insurrection – the one thing the British state has always been terrified of.

They persuaded the King to let them pass the Indemnity Act 1717, also known as the Act of Grace and Free Pardon which freed remaining Jacobite prisoners – there were 43

on death row – and the remaining 200 prisoners in Chester. Those estates confiscated by the Crown were not restored and for some reason – most probably the reputation of Rob Roy – the entire Clan McGregor were exempted from the general pardon.

The Union was still under threat. The 1719 Jacobite Rising, supported by the Spanish, ended in defeat at the Battle of Glen Shiel, but the Westminster Parliament was consumed with other Scottish matters.

In his marvellous work The Scottish Nation, A Modern History, Professor Sir Tom Devine described the situation with his usual brevity and exactitude. “Scotland had been accustomed to low taxes and relaxed methods of gathering revenue before the Union, so that the new impositions after 1707 were bitterly resented both on economic grounds and because they were seen as an attempt by London to force Scotland to contribute to the English national debt which had swollen hugely to finance the Spanish succession war.

“Popular retribution both against revenue increases and against more rigorous methods of collection was exacted through violence against the hated customs officers. The records of the Board of Customs are full of references to recurrent local disturbances which often resulted in mob assaults on servants of the Board and attempts to break into customs warehouses.

“At the customs precincts of Ayr, Dumfries and Greenock the position was so hazardous in some years that customs men dared not attempt to carry out their duties without armed protection and a stream of reports came from all over the country of officers stoned, threatened or taken prisoner and goods seized from ships and warehouses.”

Popular disgust with the Union began to grow, especially in those areas which were not experiencing the economic growth that, for instance, Glasgow was enjoying – that city had transformed in a few years from an anti-Union stronghold to a Whig, pro-Union and Hanoverian bastion.

Which brings us to arguably the greatest spy in British history – not the fictional James Bond, but the very real Daniel Defoe, author of Robinson Crusoe. Defoe had been instrumental in spying on Scotland for his English masters in the run-up to the Union.

Now in the mid-1720s he undertook a tour of Great Britain and his visit to the south-west of Scotland shook him: “In a word, the common people all over this country, not only are poor, but look poor; they appear dejected and discourag’d, as if they had given over all hopes of ever being otherwise than what they are.”

Defoe put the blame fairly and squarely on the Parcel of Rogues who had abandoned their home towns for Westminster, saying: “Now their Court is gone, their nobility and gentry spend their time, and consequently their estates in England.

“The Union opens the door to all English manufactures, and suppresses their own, prohibits their wool going abroad, and yet scarcely takes it off at home; if the cattle goes to England, the money is spent there too. The troops rais’d there are in English service, and Scotland receives no premio for the levies, as she might have done abroad, and as the Swiss and other nations do at this time.”

In Edinburgh he noted: “If the city had been in a state of increase, for the trade having flourished, as was reasonably expected upon the Union, the inhabitants had likewise encreased; whereas, there being reason to doubt that this is not the case, but rather the contrary, we cannot talk of this as prospect in hope.”

The Union was failing, and its greatest propagandist knew it.