Page images
[blocks in formation]




HE kingdom of England, over which our municipal

laws have jurisdiction, includes not, by the common law, either Wales, Scotland, or Ireland, or any


part of the king's dominions, except the territory of England only. And yet the civil laws and local customs of this territory do now obtain, in part or in all, with more or less restrictions, in these and many other adjacent countries; of which it will be proper first to take a review, before we consider the kingdom of England itself, the original and proper subject of these laws.

Wales had continued independent of England, unconquered and uncultivated, in the primitive pastoral state which Caefar and Tacitus ascribe to Britain in general, for many centuries; even from the time of the hostile invasions of the Saxons, when the antient and christian inhabitants of the island retired to those natural intrenchments, for protection from their pagan visitants. But when these invaders themselves were converted to christianity, and settled into regular and potent governments, this retreat of the antient Britons grew every day narrower ; they were over-run by little and little, gradually driven from one faftness to another, and by repeated lofses abridged of their wild independence. Very early in our history we find their princes doing homage to the crown of England; till at length in the reign of Edward the first, who may juftly be stiled the conqueror of 7


Wales, the line of their antient princes was abolished, and the king of England's eldest son became, as a matter of course, their titular prince; the territory of Wales being then entirely re-annexed (by a kind of feodal resumption) to the dominion of the crown of England”; or, as the statute of Rhudhlan expresses it, “terra Walliae cuin incolis suis, prius

regi jure feodali subjecta, (of which homage was the sign) “jam in proprietatis dominium totaliter et cum integritate conta

verfa eft, et coronae regni Angliae tanquam pars corporis ejuf« dem annexa et unita.By the statute also of Wales very material alterations were made in divers parts of their laws, so as to reduce them nearer to the English standard, especially in the forms of their judicial proceedings : but they still retained very much of their original polity; particularly their rule of inheritance, viz. that their lands were divided equally among all the issue male, and did not descend to the eldest son alone. By other subsequent statutes their provincial immunities were still farther abridged: but the finishing stroke to their independency was given by the statute 27 Hen. VIII. c. 26. which at the same time gave the utmost advancement to their civil prosperity, by admitting them to a thorough communication of laws with the subjects of England. Thus were this brave people gradually conquered into the enjoyment of true liberty ; being insensibly put upon the same footing, and made fellow-citizens with their conquerors. A generous method of triumph, which the republic of Rome practised with great success; till she reduced all Italy to her obedience, by admitting the vanquished states to partake of the Roman privileges.

It is enacted by this statute 27 Hen. VIII, 1. That the dominion of Wales shall be for ever united to the kingdom of England. 2. That all Welthmen born shall have the same liberties as other the king's subjects. 3. That lands in Wales shall be inheritable according to the English tenures and rules of descent. 4. That the laws of England, and no other, shall


Edw. I.

a V.

400. 10 Edw. I.


be used in Wales: besides many other regulations of the police of this principality. And the statute 34 & 35 Hen. VIII, c. 26. confirms the fame, adds farther regulations, divides it into twelve fhires, and, in short, reduces it into the same order in which it stands at this day; differing from the kingdom of England in only a few particulars, and those too of the nature of privileges, (such as having courts within itself, independent of the process of Westminster-hall,) and some other immaterial peculiarities, hardly more than are to be found in many counties of England itself.

The kingdom of Scotland, notwithstanding the union of the crowns on the accession of their king James VI to that of England, continued an entirely separate and distinct kingdom for above a century more, though an union had been long projected; which was judged to be the more easy to be done, as both kingdoms were antiently under the same government, and still retained a very great resemblance, though far from an identity, in their laws. By an act of parliament i Jac. I. c. 1. it is declared, that these two mighty, famous, and antient kingdoms were formerly one. And fir Edward Coke observes“, how marvellous a conformiiy there was, not only in the religion and language of the two nations, but also in their antient laws, the descent of the crown, their parliaments, their titles of nobility, their officers of state and of justice, their writs, their customs, and even the language of their laws. Upon which account he supposes the common law of each to have been originally the same; especially as their most antient and authentic book, called regiam mojestatem, and containing the rules of ibeir antient common law, is extremely similar to that of Glanvil, which contains the principles of ours, as it stood in the reign of Henry II. And the many diversities, subsisting between the two laws at present, may be well enough accounted for, from a diversity of practice in two large and uncommunicating jurisdictions, and from the acts of two diftinct and independent parliaments, which have in many points altered and abrogated the old common law of both kingdoms.

[blocks in formation]

However, fir Edward Coke, and the politicians of that time, conceived great disficulties in carrying on the projected union : but these were at length overcome, and the great work was happily effected in 1707, 6 Anne; when twentyfive articles of union were agreed to by the parliaments of both nations; the purport of the most confiderable being as follows:

1. That on the first of May 1707, and for ever 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 2,000,000 l. by a land tax, Scotland shall raise 48,000 l.

16, 17. The standards of the coin, of weights, and of meafures, 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 right are not to be altered but for the evident utility of the people of Scotland.


22. SIXTEEN peers are to be chosen to represent the peerage of Scotland in parliament, and forty-five members to fit in the house of commons.

23. The fixteen peers of Scotland shall have all privileges of parliament; and all peers of Scotland shall be peers of Great Britain, and rank next after those of the same degree at the time of the union, and shall have all privileges of peers, except fitting in the house of lords and voting on the trial of


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 for ever, and all succeeding fovereigns are to take an oath inviolably to maintain the fame; 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 preserration of the church of England, are declared perpetual; and it is stipulated, that every subsequent king and queen fhall 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 for ever be observed "as fundamental and effential 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 confent 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 effential conditions of "the union.” 2. That whatever elfe may be deemed “ fun

e It may justly be doubted, whether upon the most pressing neceflity) would even such an infringement (though a of itfelt diffolve the union : for the bare tuanifest breach of good faith, unles. done idea of a state, without a power some



« PreviousContinue »