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 fame 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 a peer (7).

one of the 45, but who would have been capable of electing, or of being elected, a reprefentative of a fhire or a borough to the parliament of Scotland. Hence the eldeft fon of any Scotch peer cannot be elected one of the 45 representatives; for by the law of Scotland, prior to the union, the eldeft fon of a Scotch peer was incapable of fitting in the Scotch parliament. (Wight, 269.) There feems to be no fatisfactory reafon for this reftriction, which would not equally extend to the exclufion of all the other sons of a peer. Neither can fuch eldest fon be entitled to be enrolled and vote as a freeholder for any commiffioner of a fhire, though otherwife qualified, as was lately determined by the house of lords in the case of lord Daer, March 26, 1793. But the eldest fons of Scotch peers may reprefent any place in England, as many do. (2 Hatf. Prec. 12.) The two ftatutes, 9 Ann. c. 5. and 33 Geo. II. c. 20. requiring knights of fhires and members for boroughs to have refpectively 600l. and 300 7. a year, are exprefsly confined to England. But a commiffioner of a fhire 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 cafe of Wigtown in 1775, (2 Doug. 181.) it was fuppofed that it was necessary that every reprefentative of a borough fhould be admitted a burgess of one of the boroughs which he reprefented. (Wight, 404.) It ftill holds generally true in fhires in Scotland, that the qualifications of the electors and elected are the fame; or that elegibility and a right to elect are convertible terms. Upon fome.future oc'cation I fhall endeavour to prove, that, in the origin of represent ation, they were univerfally the fame in England.

(7) Since the union, the following orders have been made in the houfe of lords refpecting the peerage of Scotland. Queen Anne, in the feventh year of her reign, had created James duke of Queensbury duke of Dover, with remainder in tail to his fecond

fon,

THESE are the principal of the twenty-five articles of union, which are ratified and confirmed by ftatute 5 Ann. c. 8. in which statute there are alfo two acts of parliament

fon, then earl of Solway in Scotland; and upon the 21ft of January 1708-9, it was refolved by the lords, that a peer of Scot land claiming to fit in the house of peers by virtue of a patent paffed under the great feal of Great Britain, and who now fits in the parliament of Great Britain, had no right to vote in the elec tion of the fixteen peers who are to represent the peers of Scotland in parliament.

The duke of Hamilton having been created duke of Brandon, it was refolved by the 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, fhould entitle him to fit in parliament. Notwithstanding this refolution 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 fummons as duke of Dover; the question was again argued on the 18th of December 1719, and the claim as before difallowed. (See the argument, P. Wms. 582.) But in 1782 the duke of Hamilton claimed to fit as duke of Brandon, and the question being referred to the judges, they were unanimoufly of opinion, that the peers of Scotland are not difabled from receiving, fubfequently to the union, a patent of peerage of Great Britain, with all the privileges ufually incident thereto. Upon which the lords certified to the king, that the writ of fummons ought to be allowed to the duke of Brandon, who now enjoys a feat as a British peer. (6th June 1782.) But there never was any objection to an English peer's taking a Scotch peerage by defcent; and therefore, before the laft decifion, when it was wished to confer an English title upon a noble family of Scotland, the eldest fon of the Scotch peer was created in his father's life-time an English peer, and this creation was not affected by the annexation by inheritance of the Scotch peerage. On the 13th February 1787, it was refolved, that the earl of Abercorn and the duke of Queensbury, who had been chosen of the number of the fixteen peers of Scotland, having been created peers

I 3

recited; the one of Scotland, whereby the church of Scotland and alfo the four univerfities of that kingdom are established for ever, and all fucceeding 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 fame had been altered by parliament at that time) and all other acts then in force for the prefervation of the church of England, are declared perpetual; and it is ftipulated that every fubfequent king and queen fhall take an oath inviolably to maintain the fame within England, Ireland, Wales, and the town of Berwick upon Tweed. And it is enacted, that these two acts "fhall for ever be "obferved as fundamental and effential conditions of the "union."

UPON thefe articles and act of union, it is to be observed, 1. That the two kingdoms are now so infeparably united, that nothing can ever difunite them again; except the mutual con fent of both, or the fuccefsful refiftance of either, upon apprehending an infringement of those points which, when they were separate and independent nations, it was mutually stipulated fhould be "fundamental and effential conditions of the

peers of Great Britain, thereby ceased to fit in that house as reprefentatives of the peerage. See the argument in Ann. Reg. for 1787, p. 95. At the election occafioned by the laft refolution, the dukes of Queensbury and Gordon had given their votes as peers of Scotland contrary to the refolution of 1709; in confequence of which it was refolved 18th May 1787, that a copy of that refolution fhould be tranfmitted to the lord register of Scot land as a rule for his future proceeding in cafes 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 refolutions, on 23d May 1793, it was refolved, that if duly tendered they ought to have been counted.

"union" 2. That whatever elfe may be deemed "fundamental and effential conditions," the prefervation of the two churches of England and Scotland, in the fame ftate, that they were in at the time of the union, and the maintenance of the acts of uniformity which establish our common prayer, are exprefsly declared fo to be. 3. That therefore any alteration in the conftitution of either of thofe churches, or in the liturgy of the church of England, (unless with the confent of the refpective churches, collectively or reprefentatively given,) would be an infringement of thefe "fundamental and effential "conditions," and greatly endanger the union. 4. That the municipal laws of Scotland are ordained to be still obferved in that part of the island, unless altered by parliament; and, as the parliament has not yet thought proper, except in a few inftances, to alter them, they ftill (with regard to the

It may juftly be doubted, whether even fuch an infringement (though a manifeft breach of good faith, unless done upon the most preffing neceffity) would of itself diffolve the union: for the bare idea of a ftate, without a power fome. where vested to alter every part of it's laws, is the height of political abfurdity. The truth feems to be, that in such an incorporate union (which is well distinguished by a very learned prelate from a foederate alliance, where fuch an in fringement would certainly refcind 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 fovereignty, and particularly that of legislation, must of neceffity refide. (See Warburton's alliance, 195.) But the wanton or imprudent exertion of this right would probably raise a very alarm. ing ferment in the minds of individuals; and therefore it is hinted above that fuch an attempt might endanger (though by no means deftroy) the union.

To illuftrate this matter a little farther: an act of parliament to repeal or alter the act of uniformity in England, or to establish epifcopacy in Scotland, would doubtlefs in point of authority be fufficiently valid and binding; and, notwithstanding fuch an act, the union would continue unbroken. Nay, each of these measures might be fafely and honourably pursued, if respectively a. greeable to the fentiments of the English church, or the kirk in Scotland. But it fhould feem neither prudent, nor perhaps confiftent with good faith, to venture upon either of thofe fteps, by a fpontaneous exertion of the inherent powers of parliament, or at the inftance of mere individuals-So facred indeed are the laws above-mentioned (for protecting each church and the English liturgy) efteemed, that in the regency acts both of 1751 and 1765 the regents are exprefsly difabled from affenting to the repeal or alteration of either these, or the act of fertlement.

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particulars unaltered) continue in full force. Wherefore the municipal or common laws of England are, generally speaking, of no force or validity in Scotland (8); and of confequence in the enfuing commentaries, we fhall have very little occafion to mention, any farther than fometimes 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 kingdom of Scotland; and, as fuch, was for a time reduced by king Edward I. into the poffeffion of the crown of Eng land and during fuch it's fubjection, it received from that prince a charter, which (after it's fubfequent ceffion by Edward Balliol, to be for ever united to the crown and realm of England) was confirmed by king Edward III, with fome additions; particularly that it should be governed by the laws and ufages which it enjoyed during the time of king Alexander, that is, before it's reduction by Edward I. It's conftitution was new-modelled, and put upon an English footing by a charter of king James I and all it's 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 fome local peculiarities, derived from the antient laws of Scotland, yet it is clearly part of the realm of England, being reprefented by burgeffes in the house of commons, and bound by all acts of the British parliament, whether specially named or otherwife. And therefore it was (perhaps fuperfluoufly) declared by statute 20 Geo, II. c. 42. that, where England only is mentioned in any act of parliament, the fame notwithstanding hath and shall be deemed to

f Hale Hift. C. L. 183. 1 Sid. 382. 462. 2 Show. 365.

(8) Acts of parliament in general paffed fince the union, extend to Scotland; but where a ftatute is not applicable to Scotland, and where Scotland is not intended to be included, the method is to declare by provifo that it does not extend to Scotland. 3 Burr. 853.

comprehend