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 fundamental and essential conditions of the "union."

UPON these articles and act 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

of Great Britain, thereby ceased to sit in that house as representatives of the peerage. See the argument in Ann. Reg. for 1787, p. 95. At the election occasioned by the last resolution, the dukes of Queensbury and Gordon had given their votes as peers of Scotland, contrary to the resolution of 1709; in consequence of which it was resolved 18th May 1787, that a copy of that resolution should be transmitted to the lord register of Scotland as a rule for his future proceeding in cases 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 resolutions, on 23d May 1793, it was resolved, that if duly tendered they ought to have been counted.

"union"." 2. That whatever else may be deemed " fun"damental 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 altera. tion 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 parlia ment; 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,

e It may justly be 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 foederate 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 pur sued, if respectively agreeable to the senti ments 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 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.

generally speaking, of no force or validity in Scotland (8); 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 that part of the united kingdoms.

THE town of Berwick upon Tweed was originally [99] part of the kingdom of Scotland; and, as such, was for a time reduced by king Edward I. 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 III, 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 I. Its constitution was new-modelled, and put upon an English footing by a charter of king James I 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 ancient laws of Scotland, yet it is clearly part of the realm of England, being represented by burgesses in the house of commons, and bound by all acts of the British parlament, whether specially named or otherwise. And therefore it was (perhaps superfluously) declared by statute 20 Geo. II. c. 42. that, where England only is mentioned in any act of parliament, the same notwithstanding hath and shall

f Hale Hist. C. L. 193. 1 Sid. 382. 462. 2 Show. 365.

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

be deemed to comprehend the dominion of Wales and town of Berwick upon Tweed. And though certain of the king's writs or processes of the courts of Westminster do not usually run into Berwick, any more than the principality of Wales, yet it hath been solemnly adjudgeds that all prerogative writs (as those of mandamus, prohibition, habeas corpus, certiorari, &c.) may issue to Berwick as well as to every other of the dominions of the crown of England, and that indictments and other local matters arising 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 subordinate kingdom. It was only entitled the

dominion or lordship of Irelandh, and the king's style [100] was no other than dominus Hiberniae, lord of Ireland, till the thirty-third year of king Henry the eighth; when he assumed (10) the title of king, which is recognised by act of parliament 35 Hen. VIII. c. 3. But, as Scotland and England are now one and the same kingdom, and yet differ in their municipal laws; so England and Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws. The inhabitants of Ireland are, for the most part, descended from the English, who planted it as a kind of colony, after the conquest of it by king Henry the second: and the laws of England were then received and

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

h Stat. Hiberniae. 14 Hen. III.

(9) See the case of the King v. Cowle, in 2 Burr. 834. in which Lord Mansfield seems to have collected and methodized all the learning respecting the constitution of the town of Berwick upon Tweed.

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

sworn to by the Irish nation, assembled at the council of Lismore. And as Ireland, thus conquered, planted, and governed, still continues in a state of dependence, it must necessarily conform to, and be obliged by, such laws as the superior state thinks proper to prescribe.

At the time of this conquest the Irish were governed by what they called the Brehon law, so styled from the Irish name of judges, who were denominated Brehonsk. But king John in the twelfth year of his reign went into Ireland and carried over with him many able sages of the law; and there by his letters patent, in right of the dominion of conquest, is said to have ordained and established that Ireland should be governed by the laws of England1: which letters patent sir Edward Cokem apprehends to have been there confirmed in parliament. But to this ordinance many of the Irish were averse to conform, and still stuck to their Brehon law so 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, and then lieutenant of Ireland, the Brehon law was formally abolished, it being unanimously declared to be indeed no law, but a lewd custom crept in of later times. And yet, even in the reign of queen Eliza- [101] beth, the wild natives still kept and preserved their Brehon law; which is described to have been "a rule of "right unwritten, but delivered by tradition from one to another, in which oftentimes there appeared great shew of "equity in determining the right between party and party,