SECTION THE FOURTH.

OF THE COUNTRIES SUBJECT TO THE LAWS OF ENGLAND.

THE kingdom of England, over which our municipal laws have jurifdiction, includes not, by the common law, either Wales, Scotland, or Ireland, or any other part of the king's dominions, except the territory of England only. And yet the civil laws and local cuftoms 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 confider the kingdom of England itself, the original and proper fubject of thefe laws.

WALES had continued independent of England, unconquered and uncultivated, in the primitive pastoral state which Cæfar and Tacitus afcribe to Britain in general, for many centuries: even from the time of the hoftile invafions of the Saxons, when the antient and chriftian 'inhabitants of the ifland retired to thofe natural intrenchments, for protection from their pagan vifitants. But when these invaders themselves were converted to christianity, and settled into regular and potent governments, this retreat of the ancient Britons grew every day narrower; they were over-run by little and little, gradually driven from one fastness to another, and by repeated loffes 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 justly be ftyled the conqueror of

$ 4.

Of the COUNTRIES fubject, &c.

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Wales, the line of their antient princes was abolished, and the king of England's eldest fon became, as a matter of course, (1) 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 (2) of Rhudlan expreffes it, "terra Walliae cum incolis fuis, prius ❝ regi jure feodali subjecta, (of which homage was the fign,) "jam in proprietatis dominium totaliter et cum integritate con"verfa eft, et coronae regni Angliae tanquam pars corporis ejuf"dem annexa et unita." By the statute alfo of Wales very material alterations were made in divers parts of their laws, fo 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 iffue male, and did not defcend to the eldest fon alone. By other subsequent statutes their provincial immunities were still farther abridged: but the finishing stroke

(1) It cannot be faid that the king's eldest son became prince of Wales by any neceffary or natural confequence; but for the origin and creation of his title, see p. 224.

(2) The learned Judge has made a mistake in referring to the ftatute, which is called the statute of Rutland, in the 10 Ed. I. which does not at all relate to Wales. But the ftatute of Rutland, as it is called in Vaughan (p. 430.) is the fame as the Statutum Wallia. Mr. Barrington, in his Obfervations on the Antient Statutes, (p. 74.) tells us, that the Statutum Wallia bears date apud Rothelanum, what is now called Rhuydland in Flintshire. Though Edward says, that terra Walliæ prius regi jure feodali subjecta, yet Mr. Barrington affures us, that the feudal law was then unknown in Wales, and that "there are at present in North Wales, and it is believed in South Wales, no copyhold tenures, and fcarcely inftance of what we call manerial rights; but the property Edward, however, was a conqueror,

65 an

" is entirely free and allodial.

" and he had a right to make use of his own words in the preamble

"to his law." Ib.75.

VOL. I.

I

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to their independency was given by the statute 27 Hen. VIIIc. 26. which at the fame time gave the utmost advancement to their civil profperity, 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 infenfibly put upon the fame footing, and made fellow-citizens with their conquerors. A generous method of triumph, which the republic of Rome practised with great fuccefs, till fhe reduced all Italy to her obedience, by admitting the vanquished states to partake of the Roman privileges.

It is enacted by this ftatute 27 Hen. VIII. 1. That the dominion of Wales fhall be for ever united to the kingdomof England. 2. That all Welfhmen born fhall have the fame liberties as other the king's subjects. 3. That lands in Wales fhall be inheritable according to the English tenures and rules of defcent. 4. That the laws of England, and no other, shall [95] be used in Wales: befides many other regulations of the police

of the principality. And the ftatute of 34 & 35 Hen. VIII. c. 26. confirms the fame, adds farther regulations, divides it into twelve fhires(3), and, in short, reduces it into the fame order in which it ftands at this day; differing from the kingdom of England in only a few particulars, and those too of the nature of privileges, (fuch as having courts within itself, independent of the procefs of Weftminster-hall), and fome other immaterial peculiarities, hardly more than are to be found in many counties of England itself.

ide

THE kingdom of Scotland, notwithstanding the union of the crowns on the acceflion of their King James VI. to that of England, continued an entirely separate and distinct king

(3) By this union of Wales with England, twenty-seven members were added to the English house of commons. By the 27 Hen. VIII. c. 26. the county of Monmouth (which till that time had been part of Wales) was enabled to fend two members to parliament; but the other counties and towns in Wales represented in parliament had the privilege granted of returning one only.

dom

dom 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 1 Jac. I. c. 1. it is declared, that these two mighty, famous, and antient kingdoms were formerly one. And fir Edward Coke obferves, how marvellous a conformity 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 ftate and of juftice, 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 fame; especially as their most antient and authentic book, called regiam majeftatem, and containing the rules of their antient common law, is extremely fimilar 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 diverfity of practice in two large and uncommunicating jurifdictions, and from the acts of two distinct and independent parliaments, which have in many points altered and abrogated the old common law of both kingdoms. (4)

₫ 4 Inft. 345.

(4) The laws in Scotland concerning the tenures of land, and of confequence the conftitution of parliaments and the royal prerogatives, were founded upon the fame feudal principles as the laws refpecting the subjects in England. It is faid, that the feudal polity was established first in England; and was afterwards introduced into Scotland in imitation of the English government. But it continued in its original form much longer in Scotland than it did in England, and the changes in the Scotch government, probably owing to the circumstance that they are more recent, are far more distinctly marked and defined than they are in the hiftory of the English constitution. And perhaps the progrefs of the Scotch parliaments affords a clearer elucidation of the obfcure

I 2

HOWEVER, fir Edward Coke, and the politicians of that time, conceived great difficulties in carrying on the projected union but these were at length overcome, and the great

obfcure and ambiguous points in the history of the representation and conftitution of our country, than any arguments or authorities that have yet been adduced. But a particular difcuffion of this fubject would far exceed the limits of a note, and will be referved for a future occafion. But for an account of the parliament of Scotland before the union, and of the laws relative to the election of the reprefentative peers and commoners of Scotland, I fhall refer the ftudious reader to Mr.Wight's' valuable Inquiry into the Rife and Progrefs of Parliaments chiefly in Scotland. (Quarto ed.) It is fuppofed, that we owe the lower houfe of parliament in England to the accidental circumstance that the barons and the reprefentatives 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 prefident, 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 ftyled one of the three eftates 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 eftates were, 1. The bishops, abbots, and other prelates who had a feat 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 commiffioners of fhires, who were the representatives of the smaller barons, or the free tenants of the king: 3. The burgeffes, or the reprefentatives of the royal boroughs. Craig affures us, nihil ratum effe, nihil legis vim habere, nifi quod omnium trium ordinum confenfu conjuncto conflitutum eft; ita tamen ut unius cujufque ordinis per fe major pars confentiens pro toto ordine fufficiat. Scio hodie controverti, an duo ordines dissentiente tertio, quafi major pars leges condere poffint; cujus partem negantem boni omnes, et quicunque de hac re fcripferunt pertinaciffimè tuentur, alioqui duo ordines in everfionem tertii possint consentire. (De Feudis, lib. 1. Dieg. 7. f. 11.) But fome writers have fince prefumed to controvert this doctrine, (Wight, 83.) It is ftrange that a great fundamental point, which was likely to occur frequently, fhould remain a subject of doubt and controverfy. But we should now be inclined to think, that a majority of one of the eftates could

not