The Berwick effect

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by Hazel Lewry

Is Elizabeth II a legitimate monarch?  If Elizabeth of the House of Saxe-Coburg and Gotha, now Windsor through a pre-First World War name change to avoid the populace understanding that the First World War was a family argument between German cousins, is not the legal monarch of this present United Kingdom, who is?

The simple answer is none that can be discerned, although Elizabeth possibly has a rightful claim as “Elizabeth I, Queen of Scots”.

Is there even a United Kingdom absent a monarch and the royal authority from which all other power appears to emanate?  It is entirely possible that there is not, but one can be certain that Westminster, as it becomes aware of the issues, will either bury its head in the sand, or more likely pass legislation that ensures its own future existence and that of this monarchy.

The first item to address is what could give rise to such an incredible possibility, in these islands which so pride themselves in pomp and circumstance, history and ceremony.  The answer is contained within the arrogance and ignorance of its own history, coupled with treaty law and followed by three little words.

Berwick upon Tweed

What does the Crown of the United Kingdom of Great Britain and Northern Ireland possibly have to do with Berwick upon Tweed, known to Scots as South Berwick or Bearaig.  How is it possible that one small port can potentially hold the fate of a monarchy in this time of peace?

To understand the answers to that, we must first understand the broad brush of treaty law.  International treaty law, formally codified in 1969 with the Vienna Convention which for the most part formalised what had gone before.

Limiting ourselves to bilateral treaties, those between only two states, we find they can be entered into by any two mutually agreeing sovereign states.  Of specific interest is how treaties can be ended, and the fact that they are almost universally jointly and severally applied.  This means if a nation breaks one clause, it is judged to have voided the entire treaty unless both nations later get together and agree otherwise.

Treaties continue perpetually unless one of the following happens.

  • They are modified by mutual consent of the sovereign states
  • They are cancelled or voided by breach
  • They expire after a set time that was included in the treaty terms
  • One sovereign state notifies the other sovereign state of its intention to withdraw from the treaty
  • Land may be transferred either by treaty or right of conquest followed by annexation.
  • The reason-d’être for the treaty no longer exists.

Also important is the fact that treaties survive the states that initiated them.  We have a prime example in the Kingdom of Great Britain, as if the treaties did not survive the referenced states the Kingdom of Great Britain would have ceased to be on the day of its creation.

What does Berwick on Tweed have to do with the legitimacy of the present monarchy?  How has this come about, and what relevancy if any do the above treaties have with the head that wears the crown?

In an investigation of whether Berwick is in Scotland or England one quickly discovers, as most schoolchildren are aware, that over the centuries the town has changed hands on more than a dozen occasions formally, and probably just as many informally.

What counts with Berwick was when it last changed hands before the Union of Parliaments.  Where did the treaties put the town and surrounding parish, the district called the Liberties of Berwick?  Answer that question and we know to which nation Berwick and its surroundings truly belongs.

This raises the question of whether  the good citizens of Berwick upon Tweed and its environs are entitled to Scottish benefits.  It casts doubt upon the true location of the maritime boundary and calls into question the legality of the 1999 seabed grab by Westminster in England’s favour.

If Berwick on Tweed and the surrounding area north of the river is lawfully in Scotland the rights of claim and entitlement by citizens of the area to Scots benefits certainly hold true and the Scottish government is duty bound to supply the goods and services available to all Scots to the citizens of the Berwick area.

Conversely if Berwick upon Tweed and its surroundings is lawfully in England, and “always has been”, the answer to Scots citizens’ rights in Berwick would be categorically no.  The seabed grab of 1999 would also be legitimized although there still needs to be a final definitive agreement between sovereign governments at the appropriate time.

We’re defining “always been” as a time agreed in treaty before the Treaty of Union.  There was no provision for border boundary adjustment in the 1707 treaty.  In fact Westminster acknowledged the separate countries remained after the treaty of Union in various acts.  It was simply the individual sovereign states which ceased to exist.

The last time I looked at the sign on the A1 it said Welcome to England some three miles north of the Tweed.  Sadly, based on the apparent placement of the border it looks like the good people of the Berwick area are not going to have much choice – current indications are that they are English.

What if the sign was in the wrong place?  What if the real border is actually on the bridge or at some other place and should still lawfully be delineated there. That really would pose a conundrum, which is appropriate because halfway between the modern border and the town is a little hamlet called Conundrum.   A Scots answer to this conundrum would not only afford the good people of Berwick all of the above rights, but depending upon the angle of exit into the North Sea it could also reverse the seabed grab by England in 1999.

Is this misplacement of border even a possibility?  One must discover where the treaties between the realms put the border.  If it’s not in treaty or right of conquest followed by formal annexation, then for the most part it’s simply not recognized in international law.  Right of conquest can be eliminated by subsequent treaty.

An investigation into where the border lawfully should be appears in order.  The legal border is not where Westminster may have moved it to since the Treaty of Union.  Both nations need to uncover precisely where historical treaty or acknowledged right of conquest define the old limits of the Kingdom of Scotland and the Kingdom of England.

History shows that Berwick changed hands between the thrones and nations many times, until the English Invasion of 1482, after that it was taken and with few exceptions garrisoned by England until 1608, after James VI took the English throne.

The argument appears reasonably strong that England took the town in 1482 by right of conquest.  Many references infer this is so and that was the first apparent conclusion.  The question then is did England annex Berwick at that time, reserve the right, or rescind the right by treaty.

That argument for right of conquest at Berwick is undone by the “Treaty of Perpetual Peace” signed two decades after the hostilities of 1482, it states quite clearly that Berwick, specifically the walled town and fort, are to be “of” the Kingdom of England but not “in” it.  England never claimed right of conquest or annexed Berwick in the years after 1482, and specifically gave up this right by signing the “Treaty of Perpetual Peace” in 1502.  Nothing else was included in the treaty referencing Berwick which eventually would change this situation.

The 1502 treaty also contained betrothal documents between the realms, this is what historians and constitutional experts acknowledge as the beginning of the legitimacy of James VI taking the throne of England.

“Of the Kingdom of England, but not “in it””; that may seem odd wording for a treaty, but it had basis in precedent, as when David I married Matilda he obtained substantial properties and lands within the kingdom of England.  These lands became “of the Kingdom of Scotland, but not in it”.  Basically David got all revenues and rights, David’s word and law was paramount, but the property stayed within the English realm.

From the time of the 1502 treaty it was accepted that English Law ran within the walls of Berwick, but that Berwick remained part of the Kingdom of Scotland.  The treaty was limited to the area within the late middle ages town walls – nothing more.

It would now appear that the issues are divided, that which lies within the town walls and the Liberties / Parish to the north, beyond those late middle-ages town walls.

This made anyone born within the old Berwick town walls arguably a citizen of Scotland but subject to English laws and taxes.  Just as arguably it made them citizens of an independent nation state or crown dependency.  It never made them English.  It also makes all revenues from the area covered by the old town walls fall under the same premise.

Anyone living north of the Tweed and outside of the old city and fort walls appears to categorically be a resident of Scotland at this time, those living around Halidon Hill, or Hallydoun Hill as it was then referred to would be in Scotland, in an area that came to be known as “the Liberties of Berwick”.

The Treaty of 1502 was effectively broken by James IV in 1513 when he invaded England, after the disaster at Flodden an uneasy status quo existed with neither side ratifying a new treaty but with the absence, for the most part, of open hostility.  Arguably the Scots succession had lost any claim of right to England’s throne by abrogation of that treaty.

In 1551 at the Treaty of Berwick, Berwick upon Tweed was formally made a free town, of neither Scotland or England.  It was to be the main port of trade and place of negotiation.

The agreement again demonstrably included only the town and castle.  The accompanying map by Paul Kavanagh shows how maps dating from the late 1500’s onwards show the borders of the respective kingdoms and the bubble around Berwick.  Click on the map at right to see a larger view.  Based on the line of the mediaeval town defences, the area taken by England in 1482, the seaward border clearly runs somewhat south of due east.  Note that the existing town walls are of 16th century date, and enclose a smaller area than the old mediaeval defences.

The maps on which this information is based are hosted on the National Library of Scotland’s Maps of Scotland website.

In 1551 Scotland relinquished her rights to Berwick for all time, as did England.  Berwick became a place of relative peace at last.  Berwick became a small island between two massive neighbours, respected by both, owing allegiance to neither, yet getting tax or duty revenues from both for her upkeep.  Included in this treaty was another betrothal document between the royal houses of Tudor and Stewart.

The line of succession was again intermingled by treaty.  For so long as that treaty was in effect it is arguable that each royal house could claim legitimate right of succession to the dominions of the other.

In 1603 this transpired with accession of James VI to the throne of England.  That situation still existed at the time of the Union Treaty.

On his way to his coronation in England James VI was noted to remark, as he looked upon Berwick, it was part of his realm although it owed allegiance to neither nation.  Berwick was allowed to send representatives to parliament and did so in London during this time.

James VI was apparently the first to expand the provision of Berwick when he included reference to the Liberties and bounds in the issuance of the town charter.  The expansion of the administrative burgh did not alter the national boundaries, that would have required ratification and treaty which apparently did not take place.

Where law operated can be witnessed by the English parliament of 1649, which when setting levies and taxes specifically included the Liberties of a town or omitted them if its writ did not extend there.  Berwick remained referenced as to the town alone.

This was the formal state of affairs as it appears to have existed at the time of the Treaty of Union.  Berwick was an independent city state, and it had the Liberties of Berwick as grazing grounds and common land for the populace to the north of the town, although these remained within the realm of Scotland.

The answer appears conclusive – Berwick town is an independent city state, the land to the north is part of Scotland.

There is no evidence of that having ever been lawfully changed.  To lawfully change the border between the nations of Scotland and England would require either treaty, or right of conquest and annexation.  As neither nation state now existed this was an impossibility.

It may however bring a question to the good citizens of Berwick area who live north of the town walls who argue a right to be Scots although classified as English.  The research conducted tends to the opinion that they are indeed lawfully Scots but uniquely Scots subject to English laws and taxes, although unlawfully so.  Still they are Scots, lawfully born in Scotland, resident in Scotland.

This is because the Liberties and Parish of Berwick were never party to any treaty between the realms.

The status of the area within the old walled town remains to be resolved, it should still be an independent city state.  The status of the Liberties, the area of approximately 25 sq km around Berwick is not apparently in question.  It’s in Scotland.

The perplexing question is what happened after the Union Treaty, and could it have voided the Treaty of 1551, which if voided certainly calls into question the legitimacy of the current Royal line to rule a United Kingdom by right of birth.  For if the 1551 treaty is voided the right of succession stemming from it is also terminated.

1707: Union of the Parliaments.  The border is still in the central Tweed.  Berwick in Scotland/independent.  There is a buffer zone to the north, “the Liberties”.

The next major incident in Berwick’s history took place in 1746, with the Wales and Berwick Act. Berwick was annexed by England.  The Kingdom of Great Britain unilaterally moved the border, apparently exceeding its lawful remit.  Clearly in 1746 England knew she did not have Berwick within her territorial borders.

This annexation clearly voided the 1551 treaty and theoretically disqualified the succession established by that treaty.  The strongest and most readily apparent interpretation would be that Elizabeth II has no right to rule this dis-united kingdom.  It could even call into question the existence of and validity of that kingdom itself.

A great constitutional conundrum brought to life by the arrogance of a Westminster parliament in ignoring history, treaty and precedent to place its own will and power above that of all other.

Subsequent to the 1746 annexation that the Westminster parliament may have  doubted the legality of the annexation itself, this was most clearly demonstrated in the declaration of war by Queen Victoria and the Westminster Parliament on Russia in 1853.

That declaration of war was performed “in the name of Victoria, Queen of Great Britain, Ireland, Berwick-upon-Tweed and the British Dominions beyond the sea”.  As Berwick was not mentioned in the Treaty of Paris in 1856, it was technically still at war until a peace treaty was signed between the mayor of Berwick and a Soviet diplomat in 1966.

It was not until 1885 that Berwick was incorporated into Northumberland for parliamentary rezoning and council administrative purposes.

It would appear that all the good citizens of Berwick upon Tweed, north of the old city walls, need to do to avail themselves of all things Scots is to ask.

The benefits and citizen rights that make Scotland and England two different nations are growing year on year.  Free bus passes, free prescriptions, no foundation hospitals, a functional NHS without privatization attempts, all the way up to individual citizen rights.

Westminster continues trying to eliminate that divergence by block grant reductions to a nation in surplus.

All it would take is for one resident of what today is called England, north of the Tweed past the old boundary walls, to make a request to be treated as a Scots resident and both governments would have to comply.

At the very least Westminster may well be forced to pick up the tab for the folk of Berwick upon Tweed and its immediate surroundings to enjoy the privileges of all other Scots.  Westminster disenfranchised them from Scots benefits without so much as a by your leave. Most un-democratic.

There was no provision to change the borders of the countries in the Articles of Union.   It is easily arguable that such was outwith the remit of the articles of Union.  Therefore this act was outwith the lawful remit of Westminster post Union.  

With the dissolution, or at least restructuring of Union that appears imminent, the Scotland that entered the Union would be the Scotland that departs the Union, therefore the environs of Berwick logically and lawfully go with Scotland.  If they did not, reparations would be in order.  The reparations could almost bankrupt England; reparations potentially for over 10,000 square miles of territory.

Reparations from England to Scotland should cover about 25 miles on the land and the remainder of seabed.

The town of Berwick is still lawfully an independent state.  It has never lawfully joined to either England or Scotland, but it could do either if it chose to.

The status of the sea or maritime border is also now reasonably clear.   In 1999 Westminster quietly allocated to England almost 6,000 square miles of Scotland’s seabed.  It didn’t change the currently marked land border, it simply chose to interpret that the land border extended into the sea at the same angle as it left the land.  This gave England sea rights almost to Aberdeen.

Prior to this act of what can only be described as stealthy theft, the maritime border at that location was nominally accepted to have projected along the line of latitude from the land border.

Westminster took the existing sea border and moved it from approximately latitude 55.48 level, to 55.48 running NE at about 47 degrees.  It cost Scotland around 6,000 miles of seabed, and mineral resources, including oil. Technically Westminster did nothing illegal or unlawful here, there was no official seabed demarcation in 1707.

Using the proper lawful boundary of the nation, as we’ve uncovered it above, that seabed should run along latitude 55.45, not 55.48, a difference of only about 3 miles.  However using the Westminster calculation method that angle of exit from land changes to either that of the Tweed or that of the old walled town of Berwick.  Nominally 115 degrees, or SE – they are largely similar.  

That would not only bring the initial seabed grab by Westminster back under Scots territorial waters but would “re-allocate” a few thousand square miles of seabed formerly belonging to England, to her neighbour north of the Border.

In the interim it would certainly appear that any citizen of the Berwick area living north of the old town walls, in what was Scotland at the inception of the Union could easily claim Scottish benefits with respect to housing, education, health care and more.  I think if I lived in what were the Liberties of Berwick, I’d not just ask – I’d demand my liberties as my right.

Perhaps it is time for a test case?

At the very least it would give both governments an interesting dilemma, they would then have to sort out what was to all appearances an illegal and unilateral act by the Westminster parliament of 1746 and which at a minimum contravened the spirit of the treaty of Union if it did not indeed provide additional grounds to void it and the right of succession completely.

With grateful thanks to Paul Kavanagh for his research assistance, maps, and prodding on this article.