ever, in two large and independent jurisdictions, and the acts of two distinct parliaments, have in process of time naturally tended to introduce great diversities; to which we may add, as a co-operative cause, the antient alliance and connection of Scotland with France, where the civil law chiefly prevailed. For to that law the Scottish jurisprudence ultimately became in many respects conformable; and particularly in all that regards contracts and commerce (n). To recur however to the history of the Union: it appeared to Sir Edward Coke, and the politicians of that time, to be attended (notwithstanding the similarity of the two systems of law) with great difficulties; but [these were at length overcome, and the great work was happily effected in the reign of Queen Anne (o); when twentyfive articles of union were agreed to by the parliaments of both nations; the purport of the most considerable being as follows;-that 1. 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 2,000,000l. by a land tax, Scotland shall raise 48,000Z. 16, 17. The standards of the coin, of weights, and of (n) See Erskine's Instit. b. 1, t. 1, s. 41. By 19 & 20 Vict. c. 60, and c. 97, the laws of England and Scotland have recently been assimi lated on several miscellaneous points [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 (p). 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 (q), and forty-five members to sit in the house of commons;] which number of commoners has, however, by an act of parliament passed in the year 1832, been raised to fifty-three (r). 23. [The sixteen representative 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 (s). These are the principal of the twenty-five articles of union, which are ratified and confirmed by statute 5 Anne c. 8 in which statute there are also two acts of parliament recited; the one of Scotland (t), whereby the church of Scotland, and also the four universities of that kingdom, are established for ever, and all succeeding sovereigns are to take an oath inviolably to maintain the same; the other of England (u), whereby the acts of uniformity of the thirteenth year of Elizabeth and the thirteenth year of (p) See Maxwell v. Mayre, 1 Bla. Fort. Rep. 165; Duke of QueensRep. 271, 364. berry's case, 1 Peere Wms. 582. (q) 6 Ann. c. 23. And see 2 & 3 Will. 4, c. 63; 14 & 15 Vict. c. 87; 15 & 16 Vict. c. 35. (r) 2 & 3 Will. 4, c. 65. (The Act to amend the representation of the people in Scotland.) (s) See Lord Mornington's case, (t) 1 W. & M. c. 5 (an Act for securing the Protestant religion and Presbyterian church government). (u) 5 Ann. c. 5 (an Act for securing the church of England as by law established). [Charles the second (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 for ever be observed as fundamental and essential conditions of the union." Upon these articles and acts 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 (v)." 2. That whatever (v) It may be justly doubted whether even such an infringement (though a manifest breach of good faith, unless done upon the most pressing necessity) would of itself dissolve the union; for the bare idea of a state without a power somewhere vested to alter every part of its laws is the height of political absurdity. The truth seems to be, that in such an incorporate union (which is well distinguished by a very learned prelate from a fœderate alliance, where such an infringement would certainly rescind the compact,) the two contracting states are totally annihilated, without any power of a revival; and a third arises from their conjunction, in which all the rights of sovereignty, and particularly that of legislation, must of necessity reside. (See Warburton's Alliance, 195.) But the wanton or imprudent exertion of this right would probably 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. To illustrate this matter a little farther; an act of parliament to repeal or alter the act of uniformity in England, or to establish episcopacy in Scotland, would doubtless in point of authority be sufficiently valid and binding; and notwithstanding such an act, the union would continue unbroken. Nay, each of these measures might be safely and honourably pursued, if respectively agreeable to the sentiments of the English church or the kirk in Scotland. But it should seem neither prudent, nor perhaps consistent with good faith, to venture upon either of those steps, by a spontaneous exertion of the inherent powers of parliament, or at the instance of mere individuals. So sacred, indeed, are the laws [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 certain instances, to alter them, they still (with regard to the particulars unaltered) continue in full force. Wherefore the municipal laws of England are, generally speaking, of no force or validity in Scotland;] nor, on the other hand, are those of Scotland of force or validity in England (x); [and of consequence, in the ensuing Commentaries, we shall have very little occasion to mention, any farther than sometimes by way of illustration, the municipal laws of the Scottish part of the united kingdom.] It is however to be observed, that acts of parliament, passed since the union, extend in general to Scotland, though that country be not expressly mentioned. If it be intended to except Scotland, there must be an express proviso to that effect, or the intention of the legislature to except it must be otherwise sufficiently indicated (y). above mentioned (for protecting each church and the English liturgy) esteemed, that in the regency Acts, both of 1751 and 1765, the regents are expressly disabled from assenting to the repeal or alteration of either these or the act of settlement. (x) Our courts do not even take judicial notice of the state of the law in Scotland; but (as in the case of a foreign country) if any question upon it happens to arise, it is considered as a matter of fact to be ascertained by evidence. (Woodham v. Edwardes, 5 Ad. & El. 771.) (y) Rex v. Cowle, 2 Burr. 853. [The town of Berwick-upon-Tweed was originally part of the kingdom of Scotland; and, as such, was for a time reduced by King Edward the first into the possession of the crown of England; and during such its subjection, it received from that prince a charter, which (after its subsequent cession by Edward Balliol to be for ever united to the crown and realm of England,) was confirmed by King Edward the third, 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 the first. Its constitution was new-modelled, and put upon an English footing by a charter of King James the first: 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 hath some local peculiarities, derived from the antient laws of Scotland, yet it is clearly part of the realm of England (z), 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, s. 3, that where England only is mentioned in any act of parliament, the same notwithstanding hath and shall be "deemed to comprehend and include the dominion of Wales and town of Berwick-upon-Tweed."] Berwick, however, is no part of the county of Northumberland (a); but forms, in some sense, a county of itself; that is, a county of a town corporate (b): as to the effect of which, the reader is referred to the observations which we shall have occasion presently to make when we come to explain the nature of counties corporate (c). (z) See Hale, Hist. C. L. c. 9; Rex v. Cowle, 2 Burr. 853; Com. Dig. Scotland (B.); Mayor of Berwick v. Shanks, 3 Bing. 459. (a) See Rex v. Cowle, 2 Burr. 860; Mayor of Berwick v. Shanks, ubi sup. (b) See 5 & 6 Will. 4, c. 76, ss. 61, 109; 6 & 7 Will. 4, c. 103, s. 6. (c) Vide post, 137. |