Зображення сторінки
PDF
ePub

INTROD. 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 shall 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 observed as fundamental and effential conditions of the union."

UPON these articles and act of union, it is to be obferved, 1. That the two kingdoms are now fo infeparably united, that nothing can ever difunite them again; except the mutual confent of both, or the fuccessful refiftance of either, upon apprehending an infringement of thofe points which, when they were feparate and independent nations, it was mutually ftipulated fhould be "fundamental and effential conditions of "the union." 2. That whatever elfe may be deemed "fun

e It may jufly be doubted, whether even fuch an infringement (though a manifeft breach of good faith, unless done upon the most preffing neceflity) would of itself diffolve the union: for the bare

idea of a state, without a power fome. where vefted to alter every part of it's laws, is the height of political abfurdity. The truth feeras to be, that in fuch an incorporate union (which is well diftinguished

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 Scotland 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 laft 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. One may venture to fay, that fome of these refolutions must neceffarily have arifen from a mifconstruction of the ftatute of union, or a mifconception in the peers of the true principles of their own authority and jurifdiction.

"damental and effential conditions," the prefervation of the two churches, of England and Scotland, in the fame 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 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 respective 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 ifland, 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 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 confe.

guished by a very learned prelate from a feederate alliance, where fuch an infringement would certainly refcind the compact) the two contracting ftates are totally annihilated, without any power of a revival; and a third arifes from their conjunction, in which all the rights of fovereignty, and particularly that of legiflation, must of neceffity refide. (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 fuch an attempt might endinger (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 epifcopacy in Scotland, would doubtless 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 purfued, if refpectively agrecable to the fentiments of the English church, or the kirk in Scotland. But it should 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 abovementioned (for protecting each church and the English liturgy) esteemed, that in the regency acts both of 1751 and 1765 the regents are exprefsly difabled from affenting to the re peal or alteration of cither thefe, or the act of fertlement.

(8) Acts of parliament in general paffed fince the union, extend to Scotland, but where a flatute 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.

[blocks in formation]

[ 99 ]

quence, in the enfuing commentaries, we shall have very little occafion to mention, any farther than fometimes by way of illuftration, 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 England 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 fhould 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 cuftoms, were confirmed in parliament by the flatutes 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 fpecially named or otherwife. And therefore it was (perhaps fuperfluously) declared by ftatute 20 Geo. II. c. 42. that, where England only is mentioned in any act of parliament, the fame notwithstanding hath and fhall be deemed to comprehend the dominion of Wales and town of Berwick upon Tweed. And though certain of the king's writs or proceffes of the courts of Westminster do not ufually run into Berwick, any more than the principality of Wales, yet it hath been folemnly adjudged that all prerogative writs (as thofe of mandamus, prohibition, habeas corpus, certiorari, &c.) may iffue to Berwick as well as to every other of the domi nions of the crown of England, and that indictments and

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

Cro. Jac. 543. 2 Roll. abr. 292. Stat. 11 Geo. I. c. 4. 4 Burr. 834.

2

other

other local matters arifing in the town of Berwick may be tried by a jury of the county of Northumberland (9).

As to Ireland, that is still a distinct kingdom; though a dependent fubordinate kingdom. It was only entitled the do.ninion or lordship of Ireland, and the king's stile was no other than dominus Hiberniae, lord of Ireland, till the thirty- [ 100 ] third year of king Henry the eighth; when he affumed (10) 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 fame kingdom, and yet differ in their municipal laws; fo England and Ireland are, on the other hand, diftinct kingdoms, and yet in general agree in their laws. The inhabitants of Ireland are, for the most part, defcended from the English, who planted it as a kind of colony, after the conqueft of it by king Henry the fecond; and the laws of England were then received and fworn to by the Irish nation, affembled at the council of Lifmore. And as Ireland, thus conquered, planted, and governed, ftill continues in a ftate of dependence, it must neceffarily conform to, and be obliged by, fuch laws as the superior state thinks proper to prescribe.

AT the time of this conqueft the Irish were governed by what they called the Brehon law, fo ftiled from the Irish name of judges, who were denominated Brehons *. But king John in the twelfth year of his reign went into Ireland

h Stat. Hiberniae. 14 Hen. III. i Pryn. on 4 Inst. 249.

k 4 Inft. 358. Edm. Spenfer's ftate of Ireland. p. 1513. edit. Hughes.

(9) See the cafe of the King v. Cowle, in 2 Burr. 834, in which lord Mansfield feems to have collected and methodized all the learning refpecting the conftitution of the town of Berwick upon Tweed.

(10) The title of king was conferred upon him and his fucceffors by a ftatute paffed in Ireland exprefsly for that purpose, and it was made treason for any inhabitant of Ireland to deny it. 33 Hen. VIII. c. 1. Irish Stat.

and

m

and carried over with him many able fages of the law; and there by his letters patent, in right of the dominion of conqueft, is faid to have ordained and eftablished that Ireland fhould be governed by the laws of England: which letters patent fir Edward Coke apprehends to have been there confirmed in parliament. But to this ordinance many of the Irish were averfe to conform, and ftill fluck to their Brehon Jaw: fo that both Henry the third and Edward the first 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 cuftom crept in of later [101]times. And yet, even in the reign of queen Elizabeth, the

wild natives ftill kept and preferved their Brehon law; which is defcribed to have been "a rule of right unwritten, but "delivered by tradition from one to another, in which often"times there appeared great fhew of equity in determining "the right between party and party, but in many things "repugnant quite both to God's laws and man's." The latter part of this character is alone afcribed to it, by the laws before-cited of Edward the first and his grandfon.

Bur as Ireland was a distinct dominion, and had parliaments of it's own, it is to be obferved, that though the immemorial customs, or common law, of England were made the rule of justice in Ireland alfo, yet no acts of the English parliament, fince the twelfth of king John, extended into that kingdom; unless it were specially named, or included under general words, such as, " within any of the king's do"minions." And this is particularly expreffed, and the rea

[blocks in formation]
« НазадПродовжити »