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* However, Sir Edward Coke, and the politicians of that time, con. *96] ceived great' difficulties in carrying on the projected union; but these were at length overcome, and the great work was happily effected in 1707, 6 Anne; when twenty-five articles of union were agreed to by the parliaments of both nations; the purport of the most considerable being as follows:
1. That on the first of May, 1707, and forever after, the kingdoms of England and Scotland shall be united into one kingdom, by the name of Great Britain.
2. The succession to the monarchy of Great Britain shall be the same as was before settled with regard to that of England.
3. The united kingdom shall be represented by one parliament.
4. There shall be a communication of all rights and privileges between the subjects of both kingdoms, except where it is otherwise agreed.
9. When England raises 2,000,0001. by a land tax, Scotland shall raise 18,0001.
16, 17. The standards of the coin, of weights, and of measures, shall be reduced to those of England, throughout the united kingdoms.
18. The laws relating to trade, customs, and the excise, shall be the same in Scotland as in England. But all the other laws of Scotland shall remain in force; though alterable by the parliament of Great Britain. Yet with this caution: that laws relating to public policy are alterable at the discretion of the parliament: laws relating to private rigli, are not to be altered but for the evidert utility of the people of Scotland. *97]
* 22. Sixteen peers are to be chosen to represent the peerage of
Scotland in parliament, and forty-five members to sit in the House of Commons."
of this subject would far exceed the limits of a note, and will be reserved for a future occasion. But for an account of the parliament of Scotland before the union, and the laws relative to the election of the representative peers and commoners of Scotland, I shall refer the studious reader to Mr. Wight's valuable Inquiry into the Rise and Progress of Parliaments chiefly in Scotland. (Quarto ed.) It is supposed, that we owe the lower house of parliament in England to the accidental circumstance that the barons and the representatives of the counties and boroughs had not a room large enough to contain them all; but in Scotland, the three estates assembled always in one house, had one common president, and deliberated jointly upon all matters that came before them, whether of a judicial or of a legislative nature." (Wight, 82.) In England the lords spiritual were always styled one of the three estates of the realm; but there is no authority that they ever voted in a body distinct from the lords temporal. In the Scotch parliament the three estates were, 1. The bishops, abbots, and other prelates who had a seat in parliament, as in England, on account of their benefices, or rather lands, which they held in
capite, i.e. immediately of the crown: 2. The barons, and the commissioners of shires, who were the representatives of the smaller barons, or the free tenants of the king: 3. The burgesses, or the representatives of the royal boroughs. Craig assures us, nihil ratum esse, nihil legis vim habere, nisi quod omnium, trium ordinum consensu conjuncto constitutum est; ita tamen ut unius cujusque ordinis per se major pars consentiens pro toto ordine sufficiat. Scio hodie controverti, an duo ordines dissentiente tertio, quasi major pars, leges condere possint ; cujus partem negantem boni omnes, et quicunque de hac re scripserunt, pertinacissimè tuentur, alioqui quo ordines in eversionem tertii possint consentire. (De Feudis, lib. i. Dieg. 7, s. 11.) But some writers have since presumed to controvert this doctrine. (Wight, 83.) It is strange that a great fun. damental point, which was likely to occur frequently, should remain a subject of doubt and controversy. But we should now be inclined to think, that a majority of one of the estates could not have resisted a majority of each of the other two, as it cannot easily be supposed that a majority of the spiritual lords would have consented to those statutes, which, from the year 1587 to the year 1690, were enacted for their impoverishment, and finally for their annihilation. At the time of the union, the Scotch parliament consisted only of the other two estates. With regard to laws concerning contracts and commerce, and perhaps also crimes, the law of Scotland is in a great degree conformable to the civil law; and this, probably, was owing to their frequent alliances and connections with France and the continent, where the civil law chiefly prevailed.-CHRISTIAN.
* By the 25th article it is agreed, that all laws and statutes in either kingdom, so far as they ure contrary to these articles, shall cease and become void. From the time of Edw. IV. till the reign of Ch. II. bɔth inclusive, our kings used frequently to grant, by
23. The sixteen peers of Scotland shall have all privileges of parliament; and all peers of Scotland shall be peers of Great Britain, and rank next after tiose of the same degree at the time of the union, and shall have all privileges of peers, except sitting in the House of Lords, and voting on the trial of a peer.
their charter only, a right to unrepresented towns of sending members to Parliament. The last time this prerogative was exercised, was in the 29 Ch. II. who gave this privilege to Newark; and it is remarkable, that it was also the first time that the legality of this power was questioned in the House of Commons, but it was then acknowledged by a majority of 125 to 73. (Comm. Jour. 21 March 1676–7.) But notwithstanding it is a general rule in our law, that the king can never be deprived of his prerogatives, but by the clear and express words of an act of parliament; yet it has been thought, from this last article in the act of union, that this prerogative of the crown is virtually abrogated, as the exercise of it would necessarily destroy the proportion of the representatives for the two, kingdoms. (See 1 Doug. El. Cases, 70. The Preface to Glanv. Rep. and Simeon's Law of Elect. 91.) It was also agreed, that the mode of the election of the peers and the commons should be settled by an act passed in the parliament of Scotland, which was afterwards recited, ratified, and made part of the act of union. And by that statute it was enacted, that of the 45 commoners, 30 should be elected by the shires, and 15 by the boroughs; that the city of Edinburgh should elect one, and that the other royal boroughs should be divided into fourteen districts, and that each district should return one. It was also provided, that no person should elec be elected one of the 45, but who would have been capable of electing, or of beiting elected, a representative of a shire or a borough to the parliament of Scotland. Hence, the eldest son of any Scotch peer cannot be elected one of the 45 representatives; for by the law of Scotland, prior to the union, the eldest son of a Scotch peer was incapable sitting in the Scotch parliament. (Wight, 269.) There seems to be no satisfactory reason for this restriction, which would not equally extend to the exclusion of all the other sons of a peer. Neither can such eldest son be entitled to be enrolled and vote as a freeholder for any commissioner of a shire, though otherwise qualified, as was lately determined by the house of lords in the case of lord Daer, March 26, 1793. But the eldest sons of Scotch peers may represent any place in England, as many do. (2 Hats. Prec. 12.) The two statutes, 9 Ann. c. 5, and 33 Geo. II. c. 20, requiring knights of shires and members for boroughs to have respectively 6001. and 3001. a year, are expressly confined to England. But a commissioner of a shire must be a freeholder, and it is a general rule that none can be elected, but those who can elect. (Wight, 289.). And till the contrary was determined by a committee of the house of commons in the case of Wigtown in 1775, (2 Doug. 181,) it was supposed that it was necessary that every representative of a borough should be admitted a burgess of one of the boroughs which he represented. (Wight, 404.) It still holds generally true in shires in Scotland, that the qualifications of the electors and elected are the same; or that eligibility and a right to elect are convertible terms. Upon some future occasion I shall endeavour to prove, that, in the origin of representation, they were universally the same in England.-CHRISTIAN.
5 Since the union, the following orders have been made in the house of Lords respect ing the peerage of Scotland. Queen Anne, in the seventh year of her reign, had created James duke of Queensbury, duke of Dover, with remainder in tail to his second son, then earl of Solway in Scotland; and upon the 21st of January, 1708–9, it was resolved by the lords, that a peer of Scotland claiming to sit in the house of peers by virtue of a patent passed under the great seal of Great Britain, and who now sits in the parliament of Great Britain, had no right to vote in the election of the sixteen peers who are to represent the peers of Scotland in parliament.
The duke of Hamilton having been created duke of Brandon, it was resolved by tho lords on the 20th of December, 1711, that no patent of honour granted to any peer of Great Britain, who was a peer of Scotland at the time of the union, should entitle him to sit in parliament. Notwithstanding this resolution gave great offence to the Scotch peerage, and to the queen and her ministry, yet a few years afterwards, when the duke of Dover died, leaving the earl of Solway, the next in remainder, an infant, who, upon his coming of age, petitioned the king for a writ of summons as duke of Dover; the question was again argued on the 18th December, 1719, and the claim as before dise allowed. (See the argument, 1 P. Wms. 582.) But in 1782 the duke of Hamilton claimed tn sit as duke of Brandon, and the question being referred to the judges, they were unanimously of opinion, that the peers of Scotland are not disabled from receiving, subsequently to the union, a patent of peerage of Great Britain, with all the privileges incident thereto. Upon which the lords certified to the king, that the writ of summons ought to be allowed to the duke of Brandon, who now enjoys a seat as a British peer.
These are the principal of the twenty-five articles of union, which are ratified and confirmed by statute 5 Ann. c. 8, in which statute there are also two acts of parliament recited; the one of Scotland, whereby the church of Scotland, and also the four universities of that kingdom, are established forever, and al: succeeding sovereigns are to take an oath inviolably to maintain the same: the other of England, 5 Ann. c. 6, whereby the acts of uniformity of 13 Eliz. and 13 Car. II. (except as the same had been altered by parliament at that time,) and all other acts then in force for the preservation of the church of England, are declared perpetual; and it is stipulated, that every subsequent king and queen shall take an oath inviolably to maintain the same within England, Ireland, Wales, and the town of Berwick upon Tweed. And it is enacted, that these two acts shall forever be observed as fundamental and essential conditions of the union.”
Upon these articles and act of union, it is to be observed, 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them again, except the mutual consent of both, or the successful resistance of either, upon apprehending an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be fundamental and essential conditions of the union."(e) 2. That whatever else may
deemed "fundamental *and essential conditions,” the preservation of the
two churches of England and Scotla in the same state that they were in at the time of the union, and the maite of the acts of uniformity which establish our common prayer, are espressly declared so to be. 3. That therefore any alteration in the constitutio. Other of those churches, or in the liturgy of the church of England, (unless in the consent of the respective churches, collectively or representatively given,) would be an infringement of these "fundamental and essential conditions," and greatly endanger the union. 4. That the municipal laws of Scotland are ordained to be still observed in that part of the island, unless altered by parliament; and as the parliament has not yet thought proper, except in a few instances, to alter them, they still, with regard to the particulars unaltered, continue in full force. Wherefore
(C) It may justly be doubted whether eren such an in To illustrate this matter a little farther, an act of parliafringement (though a manifest breach of good faith, unless ment to repeal or alter the act of uniformity in England, or dons upon the most pressing necessity) would of itself dis to establish episcopacy in Scotland, would doubtless in point solve the union: for the bare idea of a state, without a power of authority be sufficiently valid and binding; and, notsomewhere vested to alter every part of its laws, is the withstanding such an act, the union would continue unheight of political absurdity. The truth seems to be, that broken. Nay, each of these measures might be safely and in such an incorporate union (which is well distinguished by honourably pursued, if respectively agreeable to the senti. a very learned prelate from a fæderate alliance, where such ments of the English church, or the kirk in Scotland. But an infringement would certainly rescind the compact) the it should seem neither prudent, nor perhaps consistent with two contracting states are totally annihilated, without any good faith, to venture upon either of those steps, by a sponpower of a revival; and a third arises from their conjunc taneous exertion of the inherent powers of parliament, or at Lion, in which all the rights of sovereignty, and particularly the instance of mere individuals. that of legislation, must of necessity reside. (See War So sacred indeed are the laws above mentioned (for proburton's Alliance, 195.) But the wanton or imprudent ex. tecting each church and the English liturgy) esteemed, that ertion of this right would probably raise a very alarming in the regency acts both of 1751 and 1765 the regents are forment in the minds of individuals; and therefore it is expressly disabled from assenting to the repeal or alteration binted above that such an attempt might endanger (though of either these or the act of settlement. by no means destroy) the union.
(6th June, 1782.) But there never was any objection to an English peer's taking a Scotch peerage by descent; and, therefore, before the last decision, when it was wished to confer an English title upon a noble family of Scotland, the eldest son of the Scotch peer was created in his father's lifetime an English peer, and the creation was not affected by the annexation by inheritance of the Scotch peerage. On the 13th of February, 1787, it was resolved, that the earl of Abercorn and the duke of Queensbury, who had been chosen of the number of the sixteen peers of Scotland, having been created peers of Great Britain, thereby ceased to sit in that house as representatives of the peerage. (See the argument in Ann. Reg. for 1787, p. 95.) At the election occasioned by the last resolution, the dukes of Queensbury and Gordon had given their votes as peers of Scotland, contrary to the resolution of 1709, in consequence of which it was resolved, 18th May, 1787, that a copy of that resolution should be transmitted to the lord register of Scotland as a rule for his future proceeding in cases of election.
The duke of Queensbury and marquis of Abercorn had tendered their votes at the last general election, and their votes were rejected; but notwithstanding the former resolu. tions, on 230 May, 1793, it was resolved, that if duly tendered they ought to have been counted.-CHRISTIAN.
the municipal or common laws of England are, generally speaking, of no force or validity in Scotland; and of consequence, in the ensuing Commentaries, we shall have very little occasion to mention, any further than sometimes by way of illustration, the municipal laws of that part of the united kingdoms.
The town of Berwick upon Tweed was originally part of the king, dom of Scotland; and, as such, was for a time reduced *by king Edward
[*99 I. into the possession of the crown of England: and during such, its subjection, 't received from that prince a charter, which (after its subsequent cession by Edward Balliol, to be forever united to the crown and realm of England,) was confirmed by king Edward III. with some additions; particularly that it should be governed by the laws and usages which it enjoyed during the time of king Alexander, that is, before its reduction by Edward I. Its constitution was new-modelled, and put upon an English footing, by a charter of king James I.: and all its liberties, franchises, and customs, were confirmed in parliament by the statutes 22 Edward IV. c. 8, and 2 Jac. I. c. 28. Though, therefore, it hath some local peculiarities, derived from the ancient laws of Scotland, (f) yet it is clearly part of the realm of England, being represented by burgesses in the house of Commons, and bound by all Acts of the British parliament, whether specially named or otherwise. And therefore it was, pur. haps superfluously, declared, by statute 20 Geo. II. c. 42, that, where England only is mentioned in any Act parliament, the same, notwithstanding, hatt and shall be deemed to contend the dominion of Wales and town of Berwick upon Tweed. And though pertain of the king's writs or processes of the courts of Westminster de tot sually run into Berwick, any more than the principality of Wales, yet it itu been solemnly adjudged(9) that all prerogative writs, as those of mandamus, prohibition, habeas corpus, certiorari, &c., may issue to Berwick as well as to every other of the dominions of the crown of England, and that indictments and other local matters arising in the town of Berwick may be tried by a jury of the county of Northumberland.
As to Ireland, that is still a distinct kingdom, though a dependent subordi. nate kingdom. It was only entitled the dominion or lordship of Ireland,(h) and the king's style was no other than dominus Hibernice, lord of Ireland, till the thirty-third year of king Henry the Eighth, when he assumed the *title of king, which is recognised by act of parliament 35 Hen. VIII. c. 3. But, as Scotland and England are now one and the same king
[*100 dom, and yet differ in their municipal laws, so England and Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws. The inhabitants of Ireland are, for the most part, descended from the English, who planted it as a kind of colony, after the conquest of it by king Henry the Second; and the laws of England were then received and sworn to by the Irish nation assembled at the council of Lismore.(0) And as Ireland, thus conquered, planted, and governed, still continues in a state of dependence, it must neces. sarily conform to, and be obliged by, such laws as the superior state thinks proper to prescribe.
At the time of this conquest the Irish were governed by what they called the Brehon law, so styled from the Irish name of judges, who were denominated Brehons.(k)' But king John, in the twelfth year of his reign, went into Ireland, and carried over with him many able sages of the law; and there by his letters patent, in right of the dominion of conquest, is said to have ordained and established that Ireland should be governed by the laws of England :(l) which letters patent Sir Edward Coke(m) apprehends to have been there confirmed in parlia
(1) Hale, Hist. C. L. 183. 1 Sid. 382, 462.2 Show. 365,
Cro. Jac. 543. 2 Roll. Abr. 292. Stat. 11 Geo. I. c. 4. ( Burt. 834. (*) Stat. Hibernise, 14 Hen. III. ) Pryn. on 4 Inst. 249.
(*) 4 Inst. 358. Edm. Spenser's State of Ireland, p. 1513, edit. Hughes.
(9) Vaugh. 294. 2 Pryn. Rec. 85. 7 Rep. 23.
6 See the case of the King vs. Cowle, in 2 Burr. 834, where the constitution of the town of Berwick upon Tweed, and, indeed, the prerogative as to dominion extra Great Britain, is very elaborately discussed.-CHRISTIAN.
ment. But to this ordinance many of the Irish were averse to conform, and still stuck to their Brehon law : 80 that both Henry the Third(n) and Edward the First(o) were obliged to renew the injunction; and at length, in a parliament holden at Kilkenny, 40 Edw. III., under Lionel duke of Clarence, the then lieutenant of Ireland, the Brehon law was formally abolished, it being unani. mously declared to be indeed no law, but a lewd custom crept in of later times. *101]
And yet, even in the reign of queen Elizabeth, the *wild natives still
kept and preserved their Brehon law, which is described(p) to have been "a rule of right unwritten, but delivered by tradition from one to another, in which oftentimes there appeared great show of equity in determining the right between party and party, but in many things repugnant quite both to God's laws and man's.” The latter part of this character is alone ascribed to it, by the laws before cited of Edward the First and his grandson.
But as Ireland was a distinct dominion, and had parliaments of its own, it is to be observed that though the immemorial customs, or common law, of England were made the rule of justice in Ireland also, yet no acts of the English parliament, since the twelfth of king John, extended into that kingdom, unless it were specially named, or included under general words, such as “within any of the king's dominions.” And this is particularly expressed, and the reason given in the year books:(2) "a tax granted by the parliament of England shall not bind those of Ireland, because they are n summoned to our parliament;" and again, “ Ireland hath a parliament of its and maketh and altereth laws; and our statutes do not bind them, because they do not send knights to our parliament, but their persons are the king'sujects, like as the inhabitants of Calais, Gascoigne, and Guienne, while they corrued under the king's subjection.” The general run of laws, enacted by the superior state, are supposed to he calculated for its own internal government, and do not extend to its distant dependent countries, which, bearing no part in the legislature, are not therefore in its ordinary and daily contemplation. But, when the sovereign legislative power sees it necessary to extend its care to any of its subordinate dominions, and mentions them expressly by name, or includes them under general words, there can be no doubt but then they are bound by its laws.(r) *102]
*The original method of passing statutes in Ireland was nearly the
same as in England, the chief governor holding parliaments at his pleasure, which enacted such laws as they thought proper.(3) But an ill use being made of this liberty, particularly by lord Gormanstown, deputy-lieutenant in the reign of Edward IV.,(t) a set of statutes were then enacted in the 10 Hen. VII. (Sir Edward Poynings being then lord deputy, whence they are called Poynings' laws) one of which,(u) in order to restrain the power as well of the deputy as the Irish parliament, provides, 1. That, before any parliament be summoned or holden, the chief governor and council of Ireland shall certify to the king, under the great seal of Ireland, the consideration and causes thereof, and the articles of the acts proposed to be passed therein. 2. That after the king, in his council of England, shall have considered, approved, or altered the said acts or any of them, and certified them back under the great seal of England, and shall have given license to summon and hold a parliament, then the same shall be summoned and held; and therein the said acts so certified, and no other, shall be proposed, received, or rejected.(w) But as this precluded any law from being proposed, but such as were preconceived before the parliament, was in being, which occasioned many inconveniences and made frequent dissolutions necessary, it was provided by the statute of Philip and Mary, before cited, that any new propositions might be certified to England in the usual forms, even after the summons and during the session of parliament. By this means, however, there was nothing left to the parliament in Ireland but a bare nega
(*) A. R. 30. 1 Rym. Fend. 442.
lo) A. R.5.-pro eo quod leges quibus utuntur Hybernici pro detestabiles existunt, et omni juri dissonant, adeo quod leges censeri non debeant ;-nobis et consilio nostro satis vide
ser espediens, eisdem utendas concedere lcges Anglicanas. 3
(9) 20 Hen. VI. 8. 2 Ric. III. 12.