That laws relating to trade, customs, and the excise, should be the same in Scotland as in England. But that all the other laws of Scotland should be in force; subject to alteration by the parliament of Great Britain: with this caution however, that laws relative to the public policy are alone subjugated to parliamentary interference; laws relating to private right not being to be altered, unless for the evident utility of the people of Scotland.

Sixteen peers are to be chosen to represent the peerage of Scotland in parliament, and forty-five members to sit in the house of commons.

The sixteen peers to have all privileges of parliament: and all peers of Scotland to be peers of Great Britain, and to have all the privileges of peers, except sitting in the house of lords and voting on the trial of a peer.

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These are the principal of the twenty-five articles of union; against some of which, however, the Lords North and Grey, Rochester, Howard, Leigh, Buckingham, and Guildford, protested. "We humbly conceive, (say the pro“testing peers) that the sum of forty-eight thousand pounds to be charged "on the kingdom of Scotland, as the quota of Scotland, for a land-tax, is not proportionable to the aid granted by the parliament of England: but if by "reason of the present cirsumstances of that kingdom, it might have been thought it was not able to bear a greater proportion, at this time, yet we cannot but think it unequal to this kingdom, that it should be agreed, that "when the four shillings aid shall be enacted by the parliament of Great “Britain to be raised on land in England, that the forty-eight thousand pounds "now raised in Scotland shall never be increased in time to come; though "the trade of that kingdom shall be extremely improved, and consequently "the value of their land proportionably raised, which in all probability it "must do, when this union shall have taken effect. And we humbly con"ceive, that the number of sixteen peers of Scotland is too great a propor“tion to be added to the peers of England, who very rarely consist of more "than one hundred attending lords, in any one session of parliament; and for "that reason, we humbly apprehend, such a number as sixteen may have a very great sway in the resolutions of this house, of which the consequences "cannot now be foreseen. In the next place, we conceive, the lords of Scot“land who, by virtue of this treaty, are to sit in this house, being not quali"fied as the peers of England are, must suffer a diminution of their dignity "to sit here on so different foundations; their right of sitting here depending "entirely on an election, and that from time to time, during the continuance "of one parliament only; and at the same time, we are humbly of opinion, "that the peers of England who sit here by creation from the crown, and "have a right of so doing in themselves, or their heirs, by that creation for "ever, may find it an alteration in their constitution, to have lords added to "their number, to sit and vote in all matters brought before a parliament, "who have not the same tenure of their seats in parliament as the peers of “England have." Die Jovis 27o Feb. 1706.

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By the statute 5 Ann. c. 8. the articles of the union are ratified and confirmed. In this 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 for ever, 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, and the town of Berwick upon Tweed.

And it is enacted, that "these two acts shall for ever be observed as fun"damental and essential conditions of the union."

Upon these articles, and act of union, it is to be observed, first, 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 *." Secondly, 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. Thirdly, 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. Fourthly, 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, 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 Scotlandt. Thus were united two kingdoms, which, by their situation, were destined for the formation of one great and powerful monarchy. And by this solemn

alarming ferment in the minds of indivi duals; and therefore 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. Blac. Com. 1 v. 97. † Blac. Com. 1 v. 96.

junction of his whole native force, Great Britain hath risen to an eminence and to an authority in Europe, which England and Scotland could never have attained.

Those who are desirous of knowing the origin and constitution of the parliament in Scotland before the union, and of the change made by the establishment of one parliament for Great Britain, may consult the treatise on the laws of election for Scotland, with which Mr. Wight hath obliged the public.

The union had not long been effected, before the House of Lords began to exercise its jurisdiction over those articles which related to the peerage. Queen Anne (26th May, in the 7th year of her reign) created James duke of Queensbury, baron of Rippon, marquis of Beverley, and duke of Dover; remainder (his eldest son being an ideot) to his second son, then earl of Solway in Scotland. On the 21st of January 1708-9, the Honse of Lords resolved that a peer of Scotland, claiming to sit in the House of Peers by virtue of a patent passed under the great seal of Great Britain, had no right to vote in the election of the sixteen peers who represent the peers of Scotland in parliament.

At a subsequent period* the duke of Hamilton having been created duke of Brandon, it was resolved by the lords, that "no patent of honour granted "to any peer of Great Britain who was a peer of Scotland at the time of the "union, should entitle him to sit in parliament." And afterwardst, when the Earl of Solway petitioned for his writ of summons as duke of Dover, the question was again agitated, and decided as before‡. In 1782, however, the then duke of Hamilton claimed to sit in the House of Peers as duke of Brandon. The question was ultimately referred to the twelve Judges, who were unanimously of opinion, that a peer of Scotland, was competent to receive a patent of peerage of Great Britain, and to enjoy all its incidental privileges; and his grace sat as duke of Brandon in the House of Peers. In the course of the year 1787, the attention of the House was again called to the former question. Two of the sixteen peers of Scotland had been created peers of Great Britain. The act of union was silent upon the subject; and the only precedent which existed, was that of the duke of Athol; who, in 1736, being one of the sixteen peers, the English barony of Strange devolved upon him by INHERITANCE, and which was decided in the affirmative. Notwithstanding which, as the negative appeared to be strongly supported by every principle of equity, analogy, and fair construction, the question was brought forward for public decision. Accordingly on the 13th of February 1787, the House resolved itself into a committee of privileges, for the purpose of taking it into consideration. The motion was, "that it is the opinion of this committee, "that the Earl of Abercorn, who was chosen to be of the number of the "sixteen peers, who by the treaty of union are to represent the peerage of "Scotland in parliament, having been created Viscount Hamilton, by letters "patent under the great seal of Great Britain, doth thereby cease to sit in the

20 Decembris 1711.

†A. D. 1719.

pl. 1.

That was by a descent; and even as to the latter question, I believe no objec1 P. Wms. 582. 2 Eq. Ca. Abr. 707. tion wss ever made to a peer of England taking a Scotch title, by descent.

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"House as a representative of the peerage of Scotland." The motion was carried by a majority of 52 to 38; and was followed by a similar one respecting the duke of Queensbury, who had been created baron Douglass. On the 18th of May following, it was resolved, that a copy of the resolution of 1709, should be transmitted to the lord register of Scotland, as a rule for his future proceedings in elections. The duke of Queensbury and the marquis of Abercorn, nevertheless persisted in their right to vote in the election of peers, to represent the peerage of Scotland in parliament; and therefore in the general election of 1790, tendered their votes, as peers of Scotland, to the lord register, who, in obedience with the resolutions before stated, thought proper to reject them. Of this they complained, by petition, to the house of peers, praying, that their votes might be reckoned. A committee of privileges reported that "the votes, if duly tendered, ought to have been "counted." To which the house, on the 6th of June 1793, agreed, without a division. Contrary, as this decision certainly is, to the former resolutions, yet it was come to, after great deliberation, and after the subject had been fully argued and thoroughly investigated. It should seem that the former resolutions were not binding, inasmuch as they were not only contrary to the express terms and meaning of the articles of union, to law, justice, and the constitution, but had never been sanctioned either by practice or acquiescence *.

On the 23d of May 1787, another question respecting the construction of the act of union was agitated in the house of commons. It arose in conse quence of the succession of the earl of Wemys to that earldom; whose eldest son, Francis Charteris, lord Elcho, represented the boroughs of Lauder, &c. in Scotland. By the ancient parliamentary law of Scotland, the eldest sons of peers could not sit in the house of commons; and by an article in the act of union, it is provided, that the two kingdoms should participate reciprocally in the privileges, rights, and immunities of each other. The motion made was, "that a new writ should be made out for electing a member for the "districts of Lauder, &c. in the room of Francis Charteris, esq. now become "the eldest son of a peer of Scotland, and therefore incapable of represent"ing the said districts in this house." The motion was carried without a divisiont.

* See Parl. Reg. by Debrett, vol. xxxvi. Ann. Reg. for 1787, p. 147. Wight 269. And see lord Daer's case, determined

in the House of Lords, 26 March 1793. Deb. Parl. Reg. vol. xxxvi. p. 143.

CHAP. XI.

Touching the course of DESCENTS in England.

AMONG the many preferences that the laws of England have above others, I shall single out Two PARTICULAR TITLES, which are of common use, wherein their preference is very visible. The due consideration of their excellence therein, may give us a handsome indication, or specimen, of their excellencies above other laws, in other parts or titles of the same, also.

The titles, or capitula legum, which I shall single out for this purpose, are these two, viz. first, the hereditary transmission of lands from ancestor to heir, and the certainty thereof; and secondly, the manner of trial BY JURY; which, as it stands at this day settled in England, together with the circumstances and appendixes thereof, is certainly THE BEST MANNER OF TRIAL IN THE WORLD. And I shall herein give an account of the successive progress of those capitula legis, and what growth they have had in succession of time, till they arrived to that state and perfection which they have now obtained.

First, then, touching descents and hereditary transmissions.

It seems by the laws of the Greeks and Romans, that the same rule was held both in relation to lands and goods, where they were not otherwise disposed of by the ancestor, which the Romans therefore called SUCCESSIO AB INTESTATO. But the customs of particular countries, and especially here in England, do put a great difference, and direct a SEVERAL method in the transmission of goods or chattels, and that of the inheritances of LANDS.

Now as to hereditary transmissions or successions, commonly called with us DESCENTS, I shall hold this order in my discourse, viz.