The Constitution of Scotland as a Civil Community

Lex Rex by Samuel Rutherford

The Constitution of Scotland as a Civil Community

This is the long version of a talk I will be giving at a meeting of the Dumfries and Galloway Radical Independence Campaign on 27 February 2014. It does not yet have a conclusion. 

I am going to begin with a quotation.

 I think we have gone through a period when too many children and people have been given to understand “I have a problem, it is the Government's job to cope with it!” or “I have a problem, I will go and get a grant to cope with it!” “I am homeless, the Government must house me!” and so they are casting their problems on society and who is society? There is no such thing! There are individual men and women and there are families and no government can do anything except through people and people look to themselves first. It is our duty to look after ourselves and then also to help look after our neighbour and life is a reciprocal business and people have got the entitlements too much in mind without the obligations, because there is no such thing as an entitlement unless someone has first met an obligation.

From a Scottish perspective, Margaret Thatcher’s  rejection of a thing called ‘society’ is very revealing, since  the idea of a ‘civil society’ existing between individuals and families and the state or the government  was developed during the Scottish Enlightenment- for example in Adam Fergusson’s 1767 ’Essay on the History of Civil Society’.   It was then further developed  in the early nineteenth century by Georg Hegel in his ‘Philosophy of Right’. In 1843, Karl Marx’s first major political analysis was his ‘Critique of Hegel’s Philosophy of Right’ .However before  discussing these later developments I am going to jump back in time about 900 years and a document which was to shape Scotland’s history. 

David, by the grace of God King of Scots, to all his barons, men and friends, French and English, greeting. Know  that I have given and granted to Robert de Brus Estrahanent [i.e., Annandale] and all the land from the boundary of Dunegal of Stranit [Nithsdale] to the boundary Ranulf Meschin; and I will and grant that he should hold and have that land and its castle well and honourably with all its customs, namely with all those customs which Randolph Meschin ever had in Carduill [Carlisle] and in his land of Cumberland on that day in which he had them most fully and freely.

Apart from its importance in establish the Bruce family in Scotland, this charter is also the first properly feudal charter in Scottish history. It is also slightly confusing. David became king of Scots in 1124, but Ranulph Meschin ceased to be Lord of Carlisle in 1120, so it is likely that David granted Annandale to Robert Bruce  before then, while David was still merely the Prince of Cumbria-  which confusingly  was what is now the Scottish Borders plus Lanarkshire not Cumbria in England. We also need to remember that David’s brother-in-law was William the Conquerer’s son Henry who was king of England from 1100 to 1130, David spent many years in England which “rubbed off all tarnish of Scottish barbarity through being polished by intercourse and friendship with us."

Even after he became king of Scots, David first established himself in south-east Scotland before extending his power north and west. It seems likely that one of David’s motives for granting Annandale to Robert Bruce was to strengthen Scotland’s western border. Beyond the lands of Dunegal of Nithsdale lay the still independent kingdom of Fergus of Galloway. It was not until 1160, during the reign of David’s grandson King Malcolm IV that Galloway was conquered by the Scots and Fergus was forced into exile at Holyrood Abbey where he died in 1161.

Although no longer a kingdom, Galloway continued to be ruled by Fergus’ descendants as lords of Galloway until the death of Alan of Galloway in 1234. Alexander II then divided up Galloway between the husbands of Alan’s three daughters, but the time of death her in 1290, Alan’s youngest daughter Dervorguilla  had gained possession of all the lands of the former kingdom. 

However, as historian Richard Oram has pointed out ‘Despite all the 'Normanised' [ that is feudal] aspects of their characters, the lords of Galloway were Celtic lords, and it was on their Celtic aristocracy and people that Dervorguilla, like Alan, Roland and Uhtred before her, depended for their power and position.’ Oram’s ‘Celtic aristocracy were the heads or chiefs of the Galloway’s Gaelic clans. While Walter de Berkely, who built the massive Motte of Urr, held his lands in Galloway by charter from Uchtred, the McDowalls, McCullochs and McLellans  held their lands by traditional right not feudal charter.

The continuing power and influence of Galloway’s Gaelic clans can be seen in the career of Dervorguilla’s grandson, Edward Balliol. Although his father John had only ruled as Kings of Scots from 1292 to 1296, Edward Balliol reclaimed the Scottish Crown in 1332, seizing it from Robert I’s infant son King David II. Edward was never able to gain effective power in Scotland so in 1356, Edward gave up his claim to the  Scottish Crown to Edward III of England. David II was now the unchallenged King of Scots but was unable to exert his authority in Galloway. So troublesome was the former kingdom that David II offered it to Edward III’s son John of Gaunt as part of a peace treaty with England after Edward Balliol died in 1364.

Enter Archibald the Grim stage right, bearing a very large sword. Archibald was the illegitimate son of  Robert I’s close friend James Douglas. David II made him Warden of the West March in 1365 with the task of removing the last remaining English garrisons from Annandale. To begin with though, Archibald looked west. By 1369, Archibald had control of eastern Galloway and in 1372 he bought western Galloway from the Earl of Wigtown for £500.  Significantly, neither David II nor his successor Robert II recognised Archibald as Lord of Galloway when they confirmed his possession of  the former kingdom. 

After 1388, Archibald became Earl of Douglas as well as Lord of Galloway. This gave Archibald and his successors control over a huge swathe of southern Scotland, making them dangerous subjects of the Stewart kings. In 1455, James II brought the House of Douglas crashing down. James Douglas, the 9th earl of Douglas and the last lord of Galloway  had all his lands seized by the Crown. Significantly, when the Victorian historian Peter McKerlie was compiling his five volume ‘History of the Lands and Their Owners in Galloway’ he could only  trace the ownership of most lands in Galloway back to 1455. While leading families like the McDowalls and McCullochs claimed older ownership rights, the documents McKerlie found in their charter chests were not feudal charters but confirmations by James II and his successors of existing possession. In other words, it took over 300 years before Galloway became fully part of the feudal Scotland established by David I with his grant of Annandale to Robert Bruce  Scotland.

Then in 1560, the foundations of the system established by David I were rocked to their core by a religious revolution. In medieval Scotland and across medieval Europe, the right of a king  to claim ownership of all the land in his kingdom was ultimately buttressed by the religious belief that God in his wisdom had set kings to rule over the individual men and women and their families who lived in each kingdom. It was not the intention of the Protestant Reformers to directly challenge the right of kings to rule, but they  did reserve the right to challenge any king who failed to accept their theological arguments.

In England, Henry VIII took advantage of the Reformation to seize the lands and wealth of the Church and make himself its head. In Scotland Queen Mary refused to renounce her faith and was forced into exile. One of Mary’s chief supporters was John Maxwell, the 8th lord Maxwell who held lands in Nithsdale and Galloway. The Maxwell family remained loyal to Mary’s descendants down to Bonnie Prince Charlie and supported the Roman Catholic faith in Galloway until 1811, when a chapel they had maintained  at Munches in the Stewartry since the Reformation was transferred to Dalbeattie. 

In Scotland, rather than the Crown taking direct control of Church lands and assets, the more powerful of local landowners grabbed what they could. Gilbert Kennedy of Dunure in Ayrshire allegedly gained the lands of Crossraguel Abbey by roasting its abbot on a fire until he signed the deeds over to Kennedy. By 1584, when James VI  was finally able to assert himself as king of Scots, it was too late for him to claw back Church lands without alienating the many of Scotland’s  most important landowners. Despite, or perhaps because of  the effective limits on his power in Scotland [and the influence of his tutor George Buchanan who argued  that the source of all political power is the people, that the king is bound by those conditions under which the supreme power was first committed to his hands, and that it is lawful to resist, even to punish, tyrants]  James was a strong advocate of the divine right of kings and held that a king owns his realm as a feudal lord owns his fief, because kings arose "before any estates or ranks of men, before any parliaments were holden, or laws made, and by them was the land distributed, which at first was wholly theirs. And so it follows of necessity that kings were the authors and makers of the laws, and not the laws of the kings.”

While James had the theory, his son Charles had the practice. Because so many Scottish kings and queens had spent their childhoods more or less as hostages to different noble families, it had become a tradition that once the monarch between the ages of 21 and 25 he or she had the right to revoke any grants of lands made when they were younger. Charles I became king in March 1625 and would reach the age of 25 in November that year. To avoid going to the English parliament for money, Charles came up with a  cunning plan- he as Kings of Scots would pass an  Act of Revocation, but one backdated to the death of James V 1542.

By a stroke of his royal pen, all the Crown lands- including former Church lands and the teinds, a tenth share of  the produce of the lands- disposed of since 1542 would revert to Charles. His plan seems to have been to then re-grant them, for a fee, to their current owners, but this was not made clear at the time.  Instead, by this demonstration of his absolute power, Charles infuriated the most powerful land owners in Scotland and the Church of Scotland. The landowners were outraged by the prospect of losing huge tracts of ‘their’ land and the Church of Scotland were convinced that Charles would use the teind money to pay the salaries of bishops rather than parish ministers and parish school teachers.

As it turned out, Charles was unable to enforce the Revocation Act. But fatally for him, by managing to unite Scottish landowners and the Scottish church in opposition to his rule, Charles laid the ground for the Bishops Wars of 1639 and 1640 which in turn led to what is sometimes still called the English Civil War but is more correctly described as the War of the Three Kingdoms. Charles I was executed on 30 January 1649.  The Parliament of Scotland  immediately proclaimed his son Charles II Kings of Scots on the 6 February but Charles had to wait until 1660 before he was restored to the English throne.

One of the first acts of the Parliament of Scotland after Charles II was safely established in London was to summon the Reverend Samuel Rutherford to appear before it on a charge of High Treason. Rutherford’s crime was to have written a book called Lex Rex- the Law of the Prince, published in London in 1644. 

Here I  will throw in a snippet of movie history. Between 1627 and 1638, Rutherford was minister of Anwoth parish in the Stewartry and remains of his church feature in the now classic horror film the  Wicker Man. 

Lex Rex is a complicated and deeply learned text, drawing on aspects of classic philosophy as well as theology. Remarkably for a Calvinist Presbyterian, Rutherford even quotes approvingly from Jesuit sources in developing his argument. So what is Rutherford’s argument? It is that although God in his wisdom and acting through natural law, requires that people, ‘being reasonable creatures united in society’ should have a  system of government, the exact form such a government takes is not specified by God so may be a republic rather than a kingdom. If the form of government is a kingdom, the people limit the power of their king measuring out ‘ by ounce weights, so much royal power, and no more and no less.’ Royal power measured out in this way is also conditional and the people ‘may take back to themselves what they gave out‘ if the king breaks his agreement or covenant with the people by becoming tyrannical.

For Charles II and his new regime, the philosophical and theological complexities of ‘Lex Rex’ were irrelevant, all that mattered was that Rutherford’s book provided a justification for the rebellion which led to the death of Charles I. Only Rutherford’s natural death in saved him from the likely fate of public execution for High Treason. 

Although Rutherford’s  ‘reasonable creatures united in society’ is close to the idea of ‘civil society’ advanced by Scottish Enlightenment thinkers a hundred years later, he not develop the idea in his later writings. Instead, in response to the political ferment unleashed by the civil war in England, which included the democratic demands of the English Levellers, Rutherford retreated into his religion. As his biographer put it ‘Where there was a conflict between the principles of natural reason and the logic of true religion., religion took precedence.’

Charles II was more sensible than his father and didn’t lose his head in a crisis. On the other hand he was not amused when  Calvinist Presbyterians in the west of Scotland, following Rutherford’s religious principles, resisted his attempts to turn them into Episcopalians. The struggle between Presbyterians and Episcopalians turned into a 28 year long low intensity civil war. What turned this religious struggle into a political struggle was Charles divine right as feudal successor to David I to punish rebels by seizing their lands. 

A typical example of what this meant in practice can be found in the  Kirkcudbright Sheriff Court Deeds. In 1557, the farm of Gerranton just outside Castle Douglas belonged to Lindcluden Collegiate Church. After the Reformation, the Gordons of Kenmure gained possession but then sold the farm to the Browns of neighbouring Mollance farm, while retaining the right of feudal superiority. In 1662, John Brown of Mollance stilled owned Gerranton with Thomas Lidderdale as his tenant. Then in 1668, Thomas Lidderdale is recorded as owner of Gerranton until 1698, when his son James reached an agreement with John Brown which returned Gerranton to the Browns.

This set of records confused me until I found one which  revealed that John Brown’s wife was Margret McLellan, sister to Robert McLellan of Barscobe in Balmacllen parish. In 1666, Robert Mclellan was one of the leaders of an uprising against Charles II which began in Dalry and ended in defeat at Rullion Green near Edinburgh. I also found that Thomas Lidderdale was a Stuart loyalist who acquired St Mary’s Isle estate in Kirkcudbright after evicting the widow of leading Presbyterian John Mclellan, Lord Kirkcudbright  As brother-in-law to a notorious rebel, John Brown was in no position to dispute Thomas Lidderdale’s land grab until well after the Glorious Revolution of 1688. 

 In Dumfries, a new town council was elected on 26 December 1688 and unanimously voted in William of Orange as their new king on 9 January 1689. In Edinburgh a special convention met in March 1689 to decide, as Samuel Rutherford had argued they had the power to, between the rival claims of James VII and William of Orange. Again, if less unanimously than in Dumfries, William was chosen as Scotland’s new king. James and his supporters refused to accept this decision until the brutal defeat of his grandson’s army at the battle of Culloden ended all hope of a second Stuart restoration.

Although the first glimmerings of the Scottish Enlightenment emerged  with the founding of the ‘Honourable Society of Improvers in the Knowledge of Agriculture’ in 1723 and David Hume’s ’Treatise on Human nature’ was published in 1740, it was only after the defeat of the Jacobites in 1746 that it really got going. While the Union of 1707 had preserved Scotland’s legal system, church and universities, it had also preserved an aspect of Scotland’s feudal system- the Heritable Jurisdictions. While usually associated with the power of clan chiefs in the Highlands to administer justice, it also applied in areas of the Lowlands. In Wigtownshire, as part of James II struggle against the Douglas Lords of Galloway, the  Agnew family had been appointed Hereditary Sheriffs of the Shire in 1452, a position the family held until Heritable Jurisdiction were abolished in 1746.  

A key theme of the Scottish Enlightenment was the idea  of a ‘civil society’ existing between individuals and families and the state. If there had still been a Scottish state with Edinburgh as its political centre,  this idea might not have arisen. Scottish intellectuals would, as members of a privileged elite, have been part of the Scottish state. But within the new Union state of Great Britain centred on London, Scots and their ideas were regarded with suspicion and hostility. In the early 1760s, when Adam Ferguson was writing his ‘Essay on the History of Civil Society’, John Wilkes railed against John Stuart who had become the first Scottish Prime Minister of the new state. In the same period, when another Scot, William Murray, attempted to reform English law by importing elements of Scots law, an ‘English satirist’ described Scottish politicians as ‘using the Magna Carta to wipe their arses’- forgetting that Alan of Galloway as Constable of Scotland had signed the document.

The Scottish Enlightenment was more favourably received in France and Germany. Immanuel Kant claimed that David Hume ‘roused me from my dogmatic slumber’ Georg Hegel was another German philosopher who was influenced by Scottish Enlightenment thought. Hegel, however, developed his political ‘Philosophy of Right’, published in 1821, after the French Revolution and the Napoleonic wars. In Hegel’s version, civil society emerges out the disintegration of the family as the focus of ethical life and in turn the rational state emerges out of civil society as the ‘actuality of the ethical idea’. 

What Hegel hoped was that Prussia would be able to modernise and become a rational state without having to undergo a bloody revolution. But by the time he wrote an essay on the English (that is British) Reform Bill just before his death in 1831, Hegel was less optimistic. He feared that the forces unleashed by industrial capitalism would lead to revolution rather than reform -at least in Britain. Then, while Friedrich Engels was noting the revolutionary potential of the working classes in Manchester, in 1843  Karl Marx wrote a lengthy ‘Critique of Hegel’s Doctrine of the State’ focussing on the gap between Hegel’s ideal model of the emergence of the rational state out of civil society and the reality of actually existing states.

In Britain, reaction to the French Revolution saw a rapid closing down of enlightened political debate. In England, radical poet William Blake was brought to trial in 1804 on a charge of sedition. In Scotland Robert Burns had faced a similar threat ten years earlier and had to disguise support for reformer Thomas Muir and the French Revolution within the language of Scottish patriotism in ‘Scots Wha Hae’. What did survive from the Scottish Enlightenment were the ‘laissez faire’ theories of political economy  advocated by Adam Smith, James Steuart and Galloway’s own John Ramsay McCulloch.. As the capitalist economy expanded , Karl Marx moved on from his critique of Hegel’s theory of the state, publishing the first volume of his critique of political economy in 1859.

Since I discussed Scotland’s nineteenth and twentieth century political and economic history in my last talk I will finish up with some thoughts on the constitution of an independent Scotland. 

If we go back 900 years, we can see that right from Scotland’s beginnings in the feudal state established by David I there was a tension or struggle between  the traditions of Gaelic speaking areas like Galloway and David’s new charter based  system of land ownership. The new system prevailed but the hierarchical nature of the feudal system brought with it claims by Edward I and other English kings that their greater kingdom had a right of superiority over Scotland as the lesser kingdom. Despite the wars of Scottish Independence, H Henry VIII was still asserting this claim 200 years later. 

The religious aspect of feudalism led James VI to argue that as king he had a divine right to make laws but when his son Charles I attempt to put theory in to practice, he was resisted. Samuel Rutherford  used the phrase ‘reasonable creatures united in society’ in his learned challenge to Stuart absolutism. As ‘civil society’ the Scottish Enlightenment developed a similar concept which was then taken up by Hegel in his ‘Philosophy of Right’. In an echo of Rutherford’s Lex Rex, Hegel’s civil society gave rise to a rational state in the form of a constitutional monarchy. However, as Marx recognised, Hegel’s ideal account of history did not give enough weight to political economists version of civil society as the arena where economic activity takes place. Effectively, the economic interests of the capitalist class which had emerged out of civil society captured the state and turned it into an instrument of their  policies.

For about thirty years after the trauma of the great depression and a second world war, a form of social democracy focussed the actions of the British state on the welfare of its citizens. In this era the boundaries between civil society and the state became blurred and something like Hegel’s rational state began to emerge. 

Then in the 1970s, the post-war consensus began to unravel, leading to the election of Margret Thatcher‘s government in 1979. Having re-captured the state, the forces of neo-liberalism began to demolish the socialism of civil society and -as in the infamous quote I began with- to deny the very existence of society.

But if there is no such thing as society, or more exactly, as civil society, why are we here today? We are here today not to refight the wars of Scottish independence- they were won in 1356 when Edward Balliol  gave up his claim to the Scottish throne. We are here today because the recapture of the British state by an economic elite has created a constitutional crisis. This constitutional crisis is also an economic crisis. 

As I explained in my last talk, in order to reverse progress towards a more equal society but less profitable economy, the Thatcher government sacrificed the UK’s manufacturing industries. This created a million strong reserve army of the unemployed. The economic bonanza created by Scotland’s oil paid the benefits for the newly unemployed.  Mass unemployment then undermined the ability of organised labour to fight for higher wages. At the same time, restrictions on banking and finance were lifted. The failure of Labour governments to reverse these changes allowed a second South Sea bubble to grow, which burst in 2008. Since then, the illusion of normality has only been maintained by pumping billions into the banking sector, But without the balance provided by manufacturing exports and even with vicious austerity policies, the UK economy is staring into the abyss. The loss of a Scotland which more than pays its way would tip finances of the rump UK over the edge.

If Labour’s victory in 1997 had led to real constitutional reform, extending devolution to England as well as Scotland, Wales and Northern Ireland and had re-established democratic control over the economy, then the demand for Scottish independence would be muted. Instead, from a historical perspective, we are faced with a situation similar to that created by Charles I with his Act of Revocation.  There is  the very real fear that policies imposed by a government we did not elect will damage the economic and social fabric of Scotland’s civil society. 

While a vote for independence in September is a necessary step, a yes vote alone will not be sufficient to establish democratic control over the economy. That will require Scotland’s civil society, Scotland’s people to embed  our vision of a new Scotland in a written constitution. To create, as Hegel believed was possible but Marx believed was impossible, a rational state as ‘the actuality of the ethical ideal’. 

Hegel’s ideal may never be realised, but then it does not have to be. Even if the best we can manage is only a semi-ethical Scotland , that will still be a huge advance on the failed state we are currently part of. Even a badly written and poorly drafted constitution will be an advance on Britain’s fabled unwritten constitution.