I. The Union of the Kingdoms
THAT the two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof, and for ever after, be united into One Kingdom by the Name of GREAT BRITAIN; And that the Ensigns Armorial of the said United Kingdom be such as Her Majesty shall appoint,, and the Crosses of St Andrew and St George be conjoined, in such manner as Her Majesty shall think fit, and used in all Flags, Banners, Standards and Ensigns, both at Sea and Land.
The crucial achievement after many centuries of bloody division: the two kingdoms of England and Scotland were no more and a single kingdom created named “Great Britain”. Two mediaeval kingdoms, two halves of the nation that had known war and division for centuries, from the thirteenth century to the sixteenth, put the Middle Ages behind them and became one.
While separate kingdoms, England and Scotland could in theory have had separated through separate laws of succession, and indeed the coming succession crisis brought that danger perilously close. Scotland, entirely dependent on England for trade and security, had no voice in its councils, and was open to mistreatment in any falling-out between the two, as had recently occurred over trade and the succession.
The new kingdom flew one flag – the issue of the flag of Great Britain may have been considered settled: the Union Flag had been established for a hundred years, but it was not. In Scotland a slightly different pattern for that flag had come into use (we do not know when) and was amongst the designs presented to the Garter King of Arms to choose one. In the event he chose the familiar pattern as the colours of the new kingdom: the St Andrew flag of Scotland, with a fimbrated red cross of St George given house-room upon it.
II. Hanoverian Succession
THAT the Succession of the Monarchy to the United Kingdom of Great Britain, and of the Dominions thereto belonging, after Her Most Sacred Majesty, and in Default of Issue of Her Majesty, be, remain, and continue to the Most Excellent Princess Sophia, Electoress and Dutchess Dowager of Hanover, and the Heirs of her Body being Protestants, upon whom the Crown of England is settled by an Act of Parliament made in England in the twelfth Year of the Reign of his late Majesty King William the Third, Intituled, An Act for the further Limitation of the Crown, and better securing the Rights and Liberties of the Subject: And that all Papists, and Persons marrying Papists, shall be excluded from, and forever incapable to inherit, possess, or enjoy the Imperial Crown of Great Britain, and the Dominions thereunto belonging, or any Part thereof, and in every such Case the Crown and Government shall from time to time descend to, and be enjoyed by such Person being a Protestant, as should have inherited and enjoyed the same in case such Papist or Person marrying a Papist, was naturally Dead according to the Provision for the Descent of the Crown of England, made by another Act of Parliament in England in the first Year of the Reign of their late Majesties King William and Queen Mary entituled An Act declaring the Rights and Liberties of the Subject, and settling the Succession of the Crown.One kingdom needed a single, settled law of succession, but a crisis was in the air. Queen Anne had borne several children who died in infancy, and Prince George had finally succumbed in 1700 at the age of 11, leaving no direct heir to either kingdom. The line of Charles I ended with no legitimate Protestant descendants beyond Queen Anne, and so the succession looked back to the children of James VI & I. The English Parliament had passed the Act of Settlement in 1701 which settled the succession upon Sophia of Hanover, King James’s granddaughter, and this was confirmed for the new kingdom.
III & XXII. One Parliament
THAT the United Kingdom of Great Britain be Represented by one and the same Parliament to be stiled The Parliament of Great Britain.
As this was to be an incorporating union, the Parliaments of England and Scotland were replaced with a single Parliament, whose constitution was set out. Scottish voices had long been heard at Court, but for the first time they spoke in the House of Commons. Negotiation went back and forth as to the number of members to be elected from Scotland: the Scottish commissioners wanted more, and the English commissioners fewer, so they compromised on 45, which gave Scotland some 10% of all the seats in the House of Commons, at a time when the revenue of Scotland was less than 3% of that supplied by England.
This allocation of 45 seats was considered to leave Scotland overrepresented in terms of the number of voters to each seat, so in the Parliamentary reforms of the Victorian Age this overrepresentation was continued.
In both England and Scotland the boroughs and burghs were thoroughly corrupted and representation bore no relation to population: in England, rotten boroughs void of population could still elect two members each, and outside the boroughs a vast shire like Lancashire would be equal with tiny Rutland. Cornwall was notorious for its distorted representation; by virtue of its many boroughs, Cornwall returned fully 46 members. It took over a century to begin to cleanse the system.
In the House of Lords the peers of Scotland were not all permitted to come but had to elect 16 representative peers. The reason was the large size of the peerage of Scotland: at the time there were 168 English peers and 154 Scottish peers in spite of Scotland’s much smaller size. From the union, all new peerage titles were of the Peerage of Great Britain, with membership of the House of Lords at once. The peerages of the old kingdoms dwindled over the ages, so that all Scottish peers were admitted to the Lords in equality in 1963. (During this change, the terms of the union were raised, but the Lords were assured that the Treaty intended to guarantee to the Scottish peerage 16 places, not to limit them to that figure.)
A similar system of representative peers was introduced at the union with Ireland in 1801, though in that case the size of the Irish peerage was swollen by the former habit of granting Irish peerages as a way to give a worthy man a title without bringing him into the House of Lords.
The first Parliament of Great Britain would be a one-off: to avoid the need for an immediate election, Article XXII of the Treaty allowed the Queen to declare that the initial members were the members of the last English House of Commons together with 45 newly chosen Scottish members. It opened as a new Parliament and the new House of Commons chose a new Speaker, sponsored by a new Scottish Member, and business began in a new atmosphere.
IV. Free Trade
THAT all the Subjects of the United Kingdom of Great Britain shall, from and after the Union, have full Freedom and Intercourse of Trade and Navigation to and from any Port or Place within the said United Kingdom and the Dominions and Plantations thereunto belonging; and that there be a Communication of all other Rights Privileges, and Advantages, which do or may belong to the Subjects of each Kingdom; except where it is otherwise expressly agreed in these Articles.
The main immediate worry of the Scots commissioners was trade. This was not the era of free trade; the rich colonies of planted around the world were barred to all ships but those of the colonial power, and while Scottish ships had by concession been permitted to trade amongst the English colonies, the English parliament had barred them in 1705, and resolved to keep the Scots out unless a union were negotiated. What Adam Smith of Edinburgh was to teach in a later generation was proven here: Scottish merchants lost their trade and Scotland fell into deeper poverty even than its accustomed state. This was one cause of the bizarre venture at Darien, which sought to plant a Scottish colony in a malarial swamp under Spanish guns. Scots had no representation at Westminster and Westminster was not responsible for them, and yet they were dependent on England’s goodwill to live.
With the union came immediate opening of the ports. The new Parliament now had responsibilities to the Queen’s subjects in the whole of Great Britain and members to ensure it looked to them. No distinction was to be made between Scots and Englishmen, nor was it.
Within a week of the union’s coming into effect, the first ship slipped anchor in Glasgow (then a small town) for America to trade tobacco, and within 50 years most of Virginia's harvest was shipped up the Clyde. Glasgow became the greatest port in the Empire; now a British Empire.
V.-VI. Free navigation and customs union
THAT all Ships or Vessels belonging to Her Majesties Subjects of Scotland, at the Time of Ratifying the Treaty of Union of the two Kingdoms in the Parliament of Scotland, though forreign built, be deemed, and pass as Ships of the Built of Great Britain; the Owner, or where there are more Owners, one or more of the Owners within twelve Months after the first of May next making oath that at the Time of Ratifying the Treaty of Union in the Parliament of Scotland, the same did, in haill or in part, belong to him or them, or to some other Subject or Subjects in Scotland, to be particularly named, with the Place of their respective abodes; and that the same doth then, at the time of the said Deposition, wholly belong to him or them; and that no forreigner directly or indirectly, hath any share, part, or interest therein; Which Oath shall be made before the chief Officer or Officers of the Customs, in the Port next to the Abode of the said Owner or Owners; And the said Officer or Officers shall be impowered to administer the said Oath; and the Oath being to administred shall be attested by the Officer or Officers, who administred the same; And being registred by the said Officer or Officers, shall be delivered to the Master of the Ship for Security of her Navigation; and a Duplicate thereof shall be transmitted by the said Officer or Officers, to the chief Officer or Officers of the Customs in the Port of Edinburgh, to be there Entered in a Register, and from thence to be sent to the Port of London to be there entred in the General Register of all Trading ships belonging to Great Britain.
Before the union there were border gates and custom posts between Scotland and England, and duties placed upon the staple exports of Scotland. Ships of Scotland bore a different flag and were permitted to trade only by sufferance – a privilege withdrawn suddenly in 1705 as the troubles between the two sides approached a climax.
Before the union, the tax base was very different: customs and excise duties were the main source of government revenue, so immediate free trade would hit the treasury hard: at the union with Ireland in 1801, customs duties between Great Britain and Ireland were continued for a limited period of 10 years to absorb the fiscal shock. Nevertheless, free trade it was the Scottish commissioners’ priority and they got it with no delay. In the event, the prosperity resultant on free trade eventually more than compensated for the lost revenue.
VI – XIV. Equal taxation
From the union, all taxes were equalised and all subsidies, and this meant adopting the taxes then current in England throughout Great Britain, and all subsidies and rewards also.
Temporary exceptions were made however, exempting Scotland from certain of these taxes:
- Scotland’s prohibition on importing grain from Ireland and overseas remained “until more proper and effectual Ways be provided by the Parliament of Great Britain”
- Various excise duties on beer and ale not to be imposed until the English duty expired
- Excise duty on salt not to be imposed on salt made in Scotland for a period of seven years (and many complicated arrangements were included to deal with salt and salted flesh on a temporary basis until the excise duties be reviewed)
- Land tax was anticipated, of which Scotland should bear only 2.4% of that charged to England
- Stamp duties not to apply in Scotland until renewed
- Window tax not to be charged until expiry in 1710
- Coal duty not to be charged (except on exported coal) until expiry in 1710
- Malt tax not to be charged until its expiry in June 1707, nor (by a separate provision) during the war then current (the War of the Spanish Succession, which ended at last in 1713)
After these exemptions expired, Parliament had a free hand with tax and duties, provided that there be equality, and this on the basis that:
And seeing it cannot be supposed that the Parliament of Great Britain will ever lay any sort of Burthens upon the United Kingdom, but what they shall find of Necessity at that Time for the Preservation and Good of the Whole, and with due regard to the Circumstances and Abilities of every part of the United Kingdom; therefore it is agreed, That there be no further Exemption insisted upon for any part of the United Kingdom, but that the Consideration of any Exemptions beyond what are already agreed on in this Treaty, shall be left to the Determination of the Parliament of Great Britain.
In fact, in a technical breach of the strict terms, further exemptions were permitted to Scotland for a time after the expiry of the agreed exemptions, a politic move since certain of these duties were ill-received in the chief towns of the north.
The malt tax was the cause of later riots. The exemption was a temporary article only, extending only until the end of the war then current (which ended in 1713). In the event, no malt tax was extended to Scotland then. In 1724 though, revenues were low and Parliament introduced a new malt tax which exempted Scotland, an unwarranted exemption, and instead imposed a sixpence levy on every barrel of ale. Now, "to rob a poor man of his beer" was scandalous and so the ale duty was abandoned and instead the exemption from malt tax was removed in part: it would be charged at half the level in Scotland. This still caused rioting in Glasgow (riots which caused more loss to the men of Glasgow than the tax ever would).
Tax should logically have been the major problem of the union, yet it is not found amongst the complaints laid against it in the petitions presented, with one exception: salt. The English salt tax yielded a good income to the exchequer, but salt is vital to the preservation of fish, and the fishermen of Scotland looked at the threat of such a tax with horror. For this reason the Treaty contained a detailed temporary provision for a salt tax exemption: firstly, as Scottish merchants imported salt in great quantities, they would enjoy a system for cellaring their salt in the charge of customs officers, and pay customs duty only as an when they needed it. Secondly, salt made in Scotland would be exempt from tax for seven years, and thirdly, after the seven years Parliament would find a way to levy the tax equitably. In addition, there is detailed provision on the duties applicable to where salt (foreign, British, Irish or mixed) is used for salting fish or flesh for export, and while it would be tempting to evade the tax by falsely classifying a consignment of salt as intended for salting exported meat, so the Treaty invited Parliament to deal with that sort of fraud. Thankfully the provision was a temporary one, leaving it for the Parliament of Great Britain to work a sensible system out in due course.
Overall, tax paid by Scots was to increase at the union as a result of equalisation: contrarily the long demand for equality was granted, but the equality was on occasion uncomfortable. Scotland’s tax had been lower because Scotland was poorer and less able to pay: in 1707, the revenue of Scotland was less than 3% that of England, which had had the result that the Privy Council in Edinburgh was in constant crisis and a deep pocket could buy a great many favours. The tax was lighter because the land was poorer; no poorer than many regions of England that paid their full tax, but that was scant comfort for those tradesmen paying more duty on their goods; in time, the opportunities opened by the union and by peace would bring at least Lowland Scotland up to equality with its neighbour, but the early years were a shock. It was made worse as tax clerks and officers had to be imported from England who were familiar with the system, and they attracted disgust by acting in as crass and arrogant a manner as they were wont to do in England.
Looking at this 300 years later, were we to be taxed at no higher than the rates prevailing in 1707, we would be happy indeed.
However to resist union because Scotland was too poor for it, when the union was the solution to end that poverty, would be eccentric to say the least.
XV. The Equivalent
The Equivalent was negotiated at £398,000: a sum payable to Scotland out of England's money to be spent for the benefit of Scotland.<.p>
The wording is very complicated, but its essence is in the initial wording:
THAT whereas . . . the Subject of Scotland . . will be lyable to several Customs and excises now payable in England, which will be applicable towards payment of the Debts of England, contracted before the Union; it is agreed, That Scotland shall have an Equivalent for what the Subjects thereof shall be so charged towards Payment or the said Debts of England
In short, Scotland is to share in the burden part of England's national debt, and so should be compensated for it.
The payment of the Equivalent and its management for seven years was a crucial element of the union and a test of it. The wording of the Treaty contained a calculation, which came to a figure of £398,000: a huge sum in those days. The equivalent was to be paid at once, and for the period of seven years, the Equivalent was to be paid to a list of purposes, in the order:
- Losses caused by standardising the currency
- Compensating those who had held stock in the African and Indian Company of Scotland, plus interest at 5% a year
- The public Debts of the Kingdom of Scotland
After these had been discharged, the money was to be paid for the benefit of Scotland:
- Towards encouraging and promoting the Manufacture of coarse Wool within those Shires which produce the Wool
- Towards the encouraging and promoting the Fisheries and other Manufactures and Improvements in Scotland, as may most conduce to the general good of the United Kingdom
The Acts of Union established a body of commissioners to administer the Equivalent, who were to establish their office in Scotland. In case their honesty were doubted, the Commissioners' books were to be open to public inspection – an innovation at the time.
When the morning of 1 May 1707 came, a practised rabble-rouser of the Episcopalian party, harangued a crowd that the promised money had not arrived and therefore the union was void. In fact the gold was on its way, and on 5 August it arrived in Edinburgh, born in 12 waggons guarded by dragoons, and was borne up to the Castle. The Commissioners of the Equivalent established an office in the city and set diligently to work.
One of the outcomes of the Commissioners' work was the establishment of a new bank to administer the securities issued in the course of winding up the affairs of the Indian and African Company: The Royal Bank of Scotland.
The Equivalent was calculated to take account of the contribution which Scots taxpayers would thereafter make towards servicing the prior English national debt, and it served as a transitional mitigation of the effects of higher taxes on the Scottish economy.
XVI - XVII. Currency union and weights and measures
XVI. THAT from and after the Union, the Coin shall be of the same Standard and Value throughout the United Kingdom, as now in England, and a Mint shall be continued in Scotland; under the same Rules as the Mint in England, and the present Officers of the Mint continued, subject to such Regulations and Alterations as Her Majesty, her Heirs or Successors, or the Parliament of Great Britain shall think fit.
XVII. THAT from and after the Union, the same Weights and Measures shall be used throughout the United Kingdom, as are now established in England, and Standards of Weights and Measures shall be kept by those Burghs in Scotland, to whom the keeping the Standards of Weights and Measures, now in Use there, does of special Right belong: All which Standards shall be sent down to such respective Burghs, from the Standards kept in the Exchequer at Westminster, subject nevertheless to such Regulations as the Parliament of Great Britain shall think fit.
A single currency was established - the English standard (which, given that it commanded 95% of the economy already, was inevitable). The rate of exchange was set according to the relative values of the English and Scottish pounds at the time: 1 pound Scots was equated to one shilling.
The natural reading of the article would be to throw out the whole system of Scottish coinage and the mint that made it, so it was also provided that Scottish mint would stay open, retasked with coining the new money.
In a similar way, a comon definition of weights and measures was established - vital in a trading economy that sold merchandise by pounds and tons and gallons, and so needed to ensure every merchant used an honest weight.
XVIII. Preservation of Scots law
THAT the Laws concerning Regulation of Trade, Customs, and such Excises to which Scotland is, by virtue of this Treaty, to be lyable, be the same in Scotland, from and after the Union, as in England; and that all other Laws in Use within the Kingdom of Scotland, do after the Union, and notwithstanding thereof, remain in the same Force as before, (except such as are contrary to, or inconsistent with this Treaty) but alterable by the Parliament of Great Britain; with this Difference betwixt the Laws concerning publick Right, Policy,, and Civil Government, and those which concern private Right, that the Laws which concern publick Right, Policy, and Civil Government, maybe made the same throughout the whole United Kingdom; but that no Alteration be made in Laws which concern private Right, except for evident Utility of the Subjects within Scotland.
The law of Scotland, having been developed to some fineness in the generations before the union, was to be preserved. Parliament was empowered to amend the law but undertook not to change the civil law unless for the evident benefit of the people of Scotland.
Laws on trade and on customs and excise would need to be uniform. Public right, policy and civil government could be changed freely, and this would appear to include the criminal law, but the civil law was to be subject to an “evident utility” test. This is the reason that the laws of Scotland have remained different from those of England, although the two have grown together learning from each other (not least since Lord Mansfield began to introduce Scottish practice when Lord Chief Justice of England).
Criticism may be made of how this has worked in practice; that Parliament has been so keen to preserve Scots law that it has failed to act even when there was evident utility in a change, for which a few brief examples may include:
- The arbitrary, often cruel, authority of clan chiefs was unchallenged until 1746;
- The law of entail was unreformed until 1770;
- Serfdom amongst colliers and salt miners was not abolished until 1775;
- Full feudal land tenure and the Register of Saisines were retained until the 1980s.
On occasion too, the harmonisation of the law across the kingdom in certain areas, would be of evident utility. In some areas of public right, where Parliament had a free hand, important reforms could be left undone, as for example to regularise the appointments of sheriffs or to reform the burghs.
XIX. Preservation of Scottish courts
King James VI once expressed the wish that Scotland should become in effect a part of England, governed like an English county, but in his day the law of Scotland was not as settled as it was to become.
In the hundred years since the kings had departed for London, the lawyers of Scotland developed Scots law and the procedures of its courts to a fineness which put the laws of England to shame. Indeed in England the courts had become corrupted by procedure and the simple incapability of an essentially mediaeval system to deal with the requirements of the modern world. The local courts of England had been neutered by the King’s Bench, a court jealous of any rival jurisdiction and with the authority to quash any decision. However having forbidden local courts from exercising their wonted jurisdiction, the King’s Bench was unable to handle the resultant workload falling to itself and to the other royal courts. The king’s courts (or by now the Queen’s courts) were crowded in together in Westminster Hall, a position they had to share with the House of Lords, and the resultant noise of barristers shouting over one another to be heard caused despair amongst commentators.
In contrast, the Court of Session had developed its jurisprudence according to the needs of justice. The sheriff courts were highly imperfect and in need of reform, but they did provide local justice. The idea of throwing that away to unite with the chaotic English system was unthinkable.
One particular clause was necessary to make this preservation effective:
and that no Causes in Scotland be cognoscible by the Courts of Chancery, Queens-Bench, Common-Pleas, or any other Court in Westminster-hall; and that the said Courts, or any other of the like Nature, after the Union, shall have no Power to cognosce, review, or alter the Acts or Sentences of the Judicatures within Scotland, or stop the Execution of the same
Without this clause, the Queen’s Bench would certainly have taken it upon itself to assert an unwonted authority over the Scottish courts, as it had done to a great many English courts.
An additional thread in Article XIX concerns the Privy Council in an almost throwaway sentence: the Privy Council would continue in Edinburgh until a new arrangement could be found. It was a brief interim: later in 1707, Parliament united the English and Scottish Privy Councils. The Privy Council in each part of Great Britain was essentially the government, before the development of the Cabinet system, and its main function as a council was local government. England this consisted of issuing commissions of the peace (the list of those appointed each year as justices of the peace for each shire) and directions for how justices ought to conduct and prioritise their administrative functions. Scotland had been more centralised, the Privy Council governing rather than directing government, except where private heritable jurisdictions and powerful lairds displaced it, and so it was to be kept going until it could be replaced.
The solution reached by the united parliament was to localise administration, by appointing justices of the peace in each shire with judicial and administrative functions, devolving government functions from the centre to the local justices and to the burghs. (The new justices’ judicial authority may have sat uneasily with the sheriffs, who already exercised judicial functions locally.) In effect, government fell into the hands of the College of Advocates in Edinburgh, from whom sheriffs were appointed and who assumed the mantle of advising on and controlling appointments.
After the union, it was decided that since appeal had formerly lain from the Court of Session to the Parliament of Scotland, so appeal would lie to the House of Lords. However no appeal could be found from the High Court of Justiciary, and to criminal matters cannot be appealed from the High Court. When Gladstone determined on a reform of the courts, in which a Court of Appeal was ceated in England and in Ireland, the treaty was invoked to state that no Court of Appeal could be created in Scotland. The Treaty has no such restriction, but to get around this objection, an Inner House was created in the Court of Session and in the High Court, so that appeal is within each court, not from it.
The separateness of the Scottish legal system has been taken to extremes. In the English legal system Scotland is treated almost as if it were a foreign country, rather than just a place with separate courts. It was not until 2011 that English proceedings could be served in Scotland without asking the court’s permission first (and the English Law Society resisted even that).
Even today, a Scottish court may not enforce a summons on a man resident in England or Northern Ireland nor an English court enforce a summons on a resident of Scotland, though they are courts of the same country. A decree of the Court of Session must be registered in the High Court in London before it may be enforced in England, which sounds like a breach of the obligation not "to cognosce, review, or alter the Acts or Sentences of the Judicatures within Scotland, or stop the Execution of the same". Even after 300 years then there is unfinished business.
XX. Heritable jurisdictions
THAT all heritable Offices, Superiorities, heritable Jurisdictions, Offices for Life, and Jurisdictions for Life, be reserved to the Owners thereof, as Rights of Property, in the same Manner as they are now enjoyed by the Laws of Scotland, notwithstanding this Treaty.
One respect in which the Scottish courts were frighteningly deficient was in the heritable jurisdictions. The local judges were sheriffs, an efficient system on paper, but the title of sheriff was in many places hereditary, and very valuable to its holder. A sheriff-depute was customarily appointed to exercise actual jurisdiction, but the authority was in the hands of private gentleman of no expertise nor dependent on any qualification of fitness for office.
The clan chiefs had the most notorious heritable jurisdictions, legitimising their behaviour as local monarchs.
As a result, unqualified and partial judges ruled much of the land.
The union did not break the system but retained it as these offices were treated as rights of property. Article XX provided no permanent entrenchment of these privileges but a statement that they are unaffected by the fact of the union: as they existed as privileges out of the power of the Kingdom of Scotland, they continue as privileges accepted by the Kingdom of Great Britain.
The heritable jurisdictions were ended only in 1746, after the 1745 Jacobite Rising, and they were all ended, not just the rights of the clan chiefs but of all private jurisdictions. The rights were though rights of property and so were compensated, but afterwards everyone in Scotland could have the protection of the King’s laws and courts.
XXI. Rights of the royal burghs
XXI. THAT the Rights and Privileges of the royal Burghs in Scotland, as they now are, do remain entire after the Union, and notwithstanding thereof.
The fact of the union was not to affect the rights of the royal burghs. There is in the clause is no permanent guarantee of stasis; it is simply a statement that those rights, having been granted out of one kingdom, still belong to the burghs in the new kingdom. The royal burghs did have their rights preserved, scandalously as several of them cried out for reform. Reforms did come eventually, by which age the role of the burghs had greatly changed. One important privilege belonging only to the chief cities was the right to appoint a Lord-Lieutenant, and this right continues.
It is interesting to note in terms of terminology that the Treaty of Union uses the spelling ‘burgh’ throughout and this has become the immoveable standard, such that should any man dare to use the spelling ‘borough’ for a town of Scotland there will be many quick to take offence, but in preceding Scots Acts there is no fixed spelling; a frequent one is ‘burrow’.
In the House of Commons in 1974, as local government reorganisation was being debated a member asked raised this point of the Treaty and asked at least that the royal burghs retain at least the right to be called royal burghs. His call was rejected and all burghs then extant were abolished. The towns hitherto with the title are still wont to call themseves royal burghs nevertheless.
XXIII. Privileges of the peerage
Although by Article XXII only 16 lords of the Peerage of Scotland would sit in the House of Lords, Article XXIII states that all Scots peers have the same rights as English peers, aprt from that of sitting in the House of Lords. They are called "Peers of Great Britain" and that peculiar privilege, that on being accused of crime a peer may be tried before the Lords, is extended to all peers, not just the 16 representative peers.
XXV. Repeal of inconsistent Acts
THAT all Laws and Statutes in either Kingdom, to far as they are contrary to, or inconsistent with the Terms of these Articles, or any of them, shall, from and after the Union cease and become void and shall be so declared to be, by the respective Parliaments of the said Kingdoms.
The Acts of Union prevail over anything preceding them which may be inconsistent with their provisions. Many centuries of incrusted statutes were to be removed. This is perhaps an unnecessary provision as any statute supersedes preceding statutes: nevertheless Article XXV was included as a belt-and-braces provision in case of doubt. In the previous few years the two parliaments had thrown malicious statutes at each other - the Act of Security in Scotland and the Aliens Act in England most noticeably - and the wounds were yet raw. These statutes were wholly contradicted by the terms of the union (the Hanoverian succession in the one case and free trade in the other) but Article XXV made sure they were dead.
This most minor provision has attracted perhaps the most puzzled commentary. It has been asserted that the Article could even overturn subsequent Acts, but there is nothing in the wording to suggest that intent; quite to the contrary it refers to statutes of either kingdom, not of Great Britain, and that they cease at the union, which obviously cannot apply to anything still in the future: it is normal eighteenth century legal phrasing.
Act for securing the Protestant Religion and Presbyterian Church
Finally, the Treaty of Union refers to an Act of the Scots Parliament intitled ‘Act for securing the Protestant Religion and Presbyterian Church Government’.
This Act came at the end of the often bloody struggle for direction of the Church of Scotland. Since the Reformation led by John Knox, the Kirk had been firmly Protestant, but it retained its ancient structure of bishops and archbishops. Through the bishops though, and by the influence of the Church of England, forms of liturgy and ceremonies had been introduced, repellant to those who would ensure that the Church remained pure and with no words to govern worship but the Bible itself. At the Glorious Revolution of 1688, the presbyterian party, who opposed bishops, finally prevailed over the episcopalian party, which supported them: all forms of prelacy were abolished in Scotland by law and the Westminster Confession, which had been devised in Cromwell’s time to define the presbyterian settlement of the church, was made the fixed doctrine of the Church of Scotland.
The Episcopalians though were not giving up and the Presbyterians realised that a union with England, whose church was episcopal, could result in their settlement being overthrown. Therefore the commissioners sent to negotiate the Treaty were enjoined by law that they "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".
Therefore it was made a condition of the Union that the presbyterian organisation of the Church of Scotland be maintained, and further that "the Universities and Colledges of Saint Andrews, Glasgow, Aberdeen, and Edinburgh, as now established by Law, shall continue within this Kingdom forever" and that no one might be admitted as a professor or master unless they subscribed to the Confession of Faith, and further that each succeeding sovereign must subscribe to protect the presbyterian settlement of the Kirk.