Magna Carta: Scotland’s Connection.

It is sometimes thought that Magna Carta is a static or dead document but that couldn’t be further from the fact. 

The Great Charter, 800 years old as of 2015, is actually more alive than one might wrongly assume, and isn’t actually only English.

Some may try to argue that Magna Carta was a specifically “English” event, however the reality is that those who made their way to Runnymede to counsel and advise King John and to approve the document, came from all corners of the British Isles, including Ireland, Wales and Scotland.

In the document, King John did not describe himself exclusively as King of England, but also as “Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou”. His feudal domains extended from the north of Scotland to the Pyrenees. The Magna Carta does not describe England, Ireland, Scotland and Wales as separate “nations” because King John did not view them as such. King John considered the people who lived in his fiefdoms as his “loyal subjects”.As well as being a British event, the Magna Carta could also be said to be European, in the sense that one of those present to approve it was from France. For example, the charter itself lists among those loyal subjects present “Henry archbishop of Dublin…William Marshal earl of Pembroke…Alan de Galloway constable of Scotland…Hubert de Burgh seneschal of Poitou”. 

The Magna Carta was created “in the meadow that is called Runnymede, between Windsor and Staines, on the fifteenth day of June in the seventeenth year of our reign.” (1215). There were no “signatories”, to the document, as such. Their names were simply listed within the document, as being present. 

Negotiations took place throughout the first six months of 1215 but it was not until the barons entered the King’s London Court by force on 10 June, supported by Prince Louis and the Scottish King Alexander II, that the King was persuaded to affix his great seal to the ‘Articles of the Barons’, which outlined their grievances and stated their rights and privileges.Not many in Scotland realise but actually Ch.59 was effectively the first recognition of Scotland as having the right to self-rule:

[59] “We will act toward Alexander, king of the Scots, concerning the return of his sisters and hostages and concerning his franchises and his right in the same manner in which we act towards our other barons of England, unless it ought to be otherwise by the charters which we have from William his father, formerly king of the Scots, and this shall be determined by the judgment of his peers in our court.”

There is much rhetoric on the internet claiming that Scotland was not included in MC1215 and that it did not apply there but Ch.59 makes it clear that the rights afforded to the barons were also to be afforded to Alexander and we submit that the wording is not vague in this matter.

Some may speculate that the Magna Carta cannot apply to Scotland as it was formulated before the Treaty of Union 1707. However Regiam Majestatem was and still is the earliest surviving work giving a comprehensive digest of the Law of Scotland and the name of the document is derived from its first two words. It consists of four books, treating: 

  •  Civil Actions and Jurisdictions, 
  • Judgments and Executions, 
  • Contracts, and;
  • Crimes. 

Dating from the early fourteenth century, it is largely based on the 1188 Tractatus de legibus et consuetudinibus regni Angliae (Treatise on the laws and customs of the Kingdom of England) of Ranulf de Glanvill, and incorporates features of thirteenth century canon law, the Summa in Titulos Decretalium of Goffredus of Trano, and the Scottish Celtic Laws of the Brets and Scots.

The Treaty of Union 1707 also makes very clear that:

[XVII] “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.”

Holland, Jurisprudence (p 128), says that, when rights subsist ‘between subject and subject’, they are regulated by private law, when ‘between State and subject’ by public law. According to Stair, Institutions of the Laws of Scotland (1.1.23), public rights are those which concern the state of the commonwealth; private rights are the rights of persons and particular incorporations. 

It was once ruled in Macgregor v Lord Advocate, 1921 [SC 847 per the Lord Ordinary (Lord Anderson) at p 848.] that:

“the constitution of Scotland has been the same as that of England since 1707 [and] there is a presumption that the same constitutional principles apply in both countries”

And before in the ruling [Mackintosh v Lord Advocate, 1876] that:

“[T]he meaning of that Treaty [of 1707] was that the whole political and judicial constitution of Scotland was swept away, and that the political and judicial constitution of England was substituted for it in every particular not mentioned in the Treaty itself.”

The Act of Union of 1707 also by virtue of Article II, meant that the Act of Settlement 1700(1) effectively became part of Scots Law. And just to make sure, despite a separate Scottish succession being deemed void by the Act of Union, the new Parliament of Great Britain passed the Repeal of Certain Scotch Acts of 1707, which explicitly repealed both the Act of Security and the Act anent Peace and War.

Article IV of the Act of Settlement makes it very clear on the matter: 

“The Laws and Statutes of the Realm confirmed.

And whereas the Laws of England are the Birthright of the People thereof and all the Kings and Queens who shall ascend the Throne of this Realm ought to administer the Government of the same according to the said Laws and all their Officers and Ministers ought to serve them respectively according to the same…”

    We have a right to use it. And just as clause 63 declares:

    [63“IT IS ACCORDINGLY OUR WISH AND COMMAND that . . . men in our kingdom shall have and keep all these liberties, rights, and concessions, well and peaceably in their fullness and entirety for them and their heirs, of us and our heirs, in all things and all places for ever.

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