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 Parlia ment. 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 by a land tax, Scotland shall raise £48,000. 16, 17. The standards of the coin, of weights, and of measures, shall be reduced to those of England throughout the united kingdoms. 11. 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 sit [97] in the House of Commons. 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 those 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.' These are the principal of the twenty-five articles of union, which are ratified and confirmed by the 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 all 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, (5) The oaths to be taken on these elections have been prescribed and regulated by various statutes. See 2 & 3 Wm: IV., c. 63. (6) These were increased by the Scotch Reform Act (2 & 3 Wm. IV., c. 65) to fifty-three, of whom thirty are representatives for counties and twentythree for boroughs. (7) This article has been so construed as to exclude the crown from creating new Scotch peerages with the elective right, on the ground that it would be an interference with the elective rights of the peerages of Scotland in esse at the time of the union. On this article, see Fort., 165, and 1 P. Wms., 582. Fundamental principles of the union. 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 [98] 2. That whatever else may be deemed "fundamental and essential conditions," the preservation of the two churches of England and Scotland in the same state that they were in at the time of the union, and the maintenance of the acts of uniformity which establish our Common Prayer, are expressly declared so to be. 3. That, therefore, any alteration in the Constitution of either of those churches, or in the liturgy of the Church of England (unless with 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,* It may justly be doubted whether To illustrate this matter a little fureven such an infringement (though a ther: an act of Parliament to repeal or manifest breach of good faith, unless alter the Act of Uniformity in England, done upon the most pressing necessity) or to establish Episcopacy in Scotland, would of itself dissolve the union; for would doubtless, in point of authority, the bare idea of a state, without a pow- be sufficiently valid and binding; and, er somewhere vested to alter every part notwithstanding such an act, the union of its laws, is the height of political ab- would continue unbroken. Nay, each surdity. The truth seems to be, that of these measures might be safely and in such an incorporate union (which is honorably pursued, if respectively agreewell distinguished by a very learned able to the sentiments of the English prelate from a fœderate alliance, where Church, or the Kirk in Scotland. But such an infringement would certainly it should seem neither prudent, nor rescind the compact), the two contract- perhaps consistent with good faith, to ing states are totally annihilated, with- venture upon either of those steps by a out any power of a revival; and a third spontaneous exertion of the inherent arises from their conjunction, in which powers of Parliament, or at the inall the rights of sovereignty, and partic- stance of mere individuals. So saularly that of legislation, must of neces- cred, indeed, are the laws above mensity reside. (See Warburton's Alliance, tioned (for protecting each church and 195.) But the wanton or imprudent the English Liturgy) esteemed, that exertion of this right would probably in the regency acts, both of 1751 and raise a very alarming ferment in the minds of individuals; and therefore it is hinted above that such an attempt might endanger (though by no means destroy) the union. (8) The 20 Geo. II., c. 43, abolished heritable jurisdictions in Scotland. The 55 Geo. III., c. 42, explained and amended by 59 Geo. III., c. 35, 6 Geo. IV., c. 1765, the regents are expressly disabled from assenting to the repeal or alteration of either these, or the Act of Settlement. 120, and 1 Wm. IV., c. 69, extended trial by jury in Scotland to civil cases. By 10 Geo. IV., c. 55, amended by 7 Wm. IV., and 1 Vict., c. 41, and 1 & 2 to alter them, they still (with regard to the particulars unaltered) continue in full force. Wherefore 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. on-Tweed. The town of Berwick-upon-Tweed" was originally part of [99] the kingdom of Scotland; and, as such, was for a time reduc- Town of ed by King Edward I. into the possession of the crown of En- Berwick-up gland, and during such its subjection, it 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-modeled, 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 Edw. IV., c. 8, and 2 Jac. I., c. 28. Though, therefore, it had 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 (perhaps superfluously) declared by statute 20 Geo. II., c. 42, that where England only is mentioned in any act of Parliament, the same, notwithstanding, hath and shall be deemed to comprehend the dominion of Wales and town of Berwick-upon-Tweed. And, though certain of the king's writs or processes of the courts of Westminster do not usually run into Berwick any more than the prin f Hale, Hist. C. L., 183; 1 Sid., 382, 462; 2 Show., 365. Most of the distinctions between the Vict., c. 119, small debts became recov- that in criminal as well as civil matters. (10) In the case of Rex v. Cowle (2 Burr., 834), Lord Mansfield collected and methodized all the learning respecting Berwick-upon-Tweed. The whole (9) When it is intended that Scotland case well deserves an attentive perusal, shall not be included in an act of Parlia- as it not merely decides the points of law ment, a special clause should be inserted stated in the text, but elucidates the for that purpose. (2 Burr., 853.) The principles of the prerogative jurisdiction Scotch municipal law is, to a very great of the Court of Queen's Bench over all extent, founded on the civil law; and the dominions of the crown of England. Ireland was a distinct kingdom till the Act of Union, A.D. 1800. cipality of Wales, yet it hath been solemnly adjudgeds that all As to Ireland," that is still a distinct kingdom, though a de- (11) By the 109th section of the Municipal Corporations Reform Act (5 & 6 Wm. IV., c. 76) it was enacted that Berwick-upon-Tweed and the other cities excepted out of 38 Geo. III., c. 52, should thenceforth be on the same footing as other cities and counties of cities or towns corporate, except so far as relates to the return of members of Parliament. (6 & 7 Wm. IV., c. 103, s. 6.) (12) The whole of the text to page 104 has now become matter of history, in consequence of the legislative union with Ireland, which was happily effected by the 39 & 40 Geo. III., c. 47, and 40 Geo. III., c. 38 (Irish stat.). The purport of the eight articles of this union are as follows: Art. 1. That the kingdoms of Great Britain and Ireland shall, on the first day of January, 1801, and forever after, be united into one kingdom, by the name of the United Kingdom of Great Britain and Ireland. Art. 2. That the succession to the imperial crown of the United Kingdom shall continue settled in the same manner as the succession to the crown of Great Britain and Ireland stood before limited. Art. 3. That the said United Kingdom shall be represented in one and the same Parliament, to be styled "The Parliament of the United Kingdom of Great Britain and Ireland." Art. 4. That four lords spiritual of Ireland, by rotation of sessions, and twentyeight lords temporal of Ireland, elected for life by the peers of Ireland, shall sit in the House of Lords; and one hundred commoners, two for each county, two for the city of Dublin, and two for the city of Cork, one for Trinity College, and one for each of the thirty-one most considerable cities and boroughs, shall be the number to sit and vote in the House of Commons on the part of Ireland; to which five were added by the Irish Reform Act (2 & 3 Wm. IV., c. 88, s. 9). By this article the precedence of Irish peers was regulated, their power to sit in the House of Commons, &c.* Art. 5. That the churches of England and Ireland be united into one Protestant Episcopal Church, to be called "the United Church of England and Ireland;" that the doctrine, worship, discipline, and government shall be and remain the same as already established in England; and that the continuance and preservation of the united church so established shall be deemed an essential and fundamental part of the union; and that, in like manner, the Church of Scotland shall remain the same as is now established by law, and by the acts of union of England and Scotland.. Art. 6. That the subjects of Great Britain and Ireland shall be entitled to the same rights and privileges in trade and navigation, and also all treaties with foreign powers. That all prohibitions and bounties upon the importation of merchandise from one country to the other shall cease; but that the importation of certain articles therein enumerated shall be subject to the duties speci fied in the act. Art. 7. That the sinking funds, and the interest of the national debt of each country, shall be defrayed by each separately; and that, for the space of twenty years after the union, the contribution of Great Britain and Ireland toward the public expenditure in each year shall be in the proportion of fifteen to two, sub ject to future regulations. Art. 8. That all the laws and courts of each kingdom shall remain as by law then established, subject to alterations by the united Parliament; but that all writs of error and appeal shall be decided by the House of Lords of the United Kingdom, except appeals from the court of admiralty in Ireland, which shall be Vide infra, p. 159, n. (14), for number of representatives from Ireland in the British Parliament under the Reform Act, 2 & 3 Wm. IV., ch. 88. pendent, subordinate kingdom. It was only entitled the dominion or lordship of Ireland, and the king's style was no oth- [100] er than dominus Hiberniæ, lord of Ireland, till the thirty-third year of King Henry the Eighth, when he assumed the title of king," which is recognized by act of Parliament, 35 Hen. VIII., c. 3. But as Scotland and England are now one and the same kingdom, 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. And as Ireland, thus conquered, planted, and governed, still continues in a state of dependence, it must necessarily conform to, and be obliged by, such laws as the superior state thinks proper to prescribe. law. At the time of this conquest the Irish were governed by The Brehon what they called the Brehon law, so styled from the Irish name of judges, who were denominated Brehons. 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 ; which letters patent Sir Edward Coke apprehends to have been there confirmed in Parliament. But to this ordinance many of the Irish were averse to conform, and still stuck to their Brehon law; so that both Henry the Third" and Edward the Firsto 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 unanimously declared to be, indeed, no law, but a lewd custom crept in of later times. And yet, even in the reign of Queen Elizabeth, the wild natives still kept and pre- [101] served their Brehon law, which is described to have been "a b Stat. Hiberniæ, 14 Hen. III. i Pryn. on 4 Inst., 249. 4 Insta 358; Edm. Spenser's State of Ireland, p. 1513, edit. Hughes. 1 Vaugh., 294; 2 Pryn., Rec., 85; 7 Rep., 23. m 1 Inst., 141. "A. R., 30; 1 Rym., Foed., 442. 。 A. R., 5.-Pro eo quod leges quibus chapter of Mr. Hallam's Constitutional decided by a court of delegates appoint- |