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HOWEVER, sir Edward Coke, and the politicians of that time, conceived great difficulties in carrying on the projected anion: but these were at length overcome, and the great

stitution. And perhaps the progress of the Scotch parliaments af. fords a clearer elucidation of the obscure and ambiguous points in the history of the representation and constitution of our country, than any arguments or authorities that have yet been adduced. But a particular discussion of this subject would far exceed the limits of a note, and will be reserved for a future occasion. But for an account of the parliament of Scotland before the union, and of the laws relative to the election of the representative peers and commoners of Scotland, I shall refer the studious reader to Mr. Wight's valuable Inquiry into the Rise and Progress of Parliaments chiefly in Scotland. (Quarto ed.) It is supposed, that we owe the lower house of parliament in England, to the accidental circumstance that the barons and the representatives of the counties and boroughs had not a room large enough to contain them all; but in Scotland, the three estates assembled always in one house, had one common president, and deliberated jointly upon all matters that came before them, whether of a judicial or of a legislative nature. (Wight, 82.) In England, the lords spiritual were always styled one of the three estates of the realm ; but there is no authority that they ever voted in a body distinct from the lords temporal. In the Scotch parliament the three estates were, 1. The bishops, abbots, and other prelates who had a seat in parliament, as in England, on account of their benefices, or rather lands, which they held in capite, i. e. immediately of the crown: 2. The barons, and the commissioners of shires, who were the representatives of the smaller barons, or the free tenants of the king : 3. The burgesses, or the representatives of the royal boroughs. Craig assures us, nihil ratum esse, nihil legis vim habere, nisi quod omnium trium ordinum consensu conjuncto constitutun est; ita tamen ut unius cujusque ordinis per se major pars consentiens pro toto ordine sufficiat. Scio hodie controverti, an duo ordines dissentiente tertio, quasi major pars leges condere possint; cujus partem negantem boni omnes, et quicunque de hac re scripserunt pertinacissimè tuentur, alioqui duo ordines in eversionem tertii possint consentire. (De Feudis, lib. i. Dieg. 7. s. 11.) But some writers have since presumed to controvert this doctrine. (Wight, 83.) It is strange that a great fundamental point, which was likely to occur frequently, should remain a subject of doubt and controversy. But we should now be inclined to think, that a majority of one of the estates could work was happily effected in 1707, 6 Anne; when twentyfive articles of union were agreed to by the parliaments of both nations; the purport of the most considerable being as follows:

1. That 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 priva ileges between the subjects of both kingdoms, except where it is otherwise agreed.

9. When England raises 2,000,0001. (5) by a land tax, Scotland shall raise 48,0001.

16, 17. The standards of the coin, of weights, and of measures, shall be reduced to those of England, throughout the united kingdoms.

not have resisted a majority of each of the other two, as it cannot easily be supposed, that a majority of the spiritual lords would have consented to those statutes, which, from the year 1587 to the year 1690, were enacted for their impoverishment, and finally for their annihilation. At the time of the union, the Scotch parliament consisted only of the other two estates. With regard to laws concerning contracts and commerce, and perhaps also crimes, the law of Scotland is in a great degree conformable to the civil law; and this, probably, was owing to their frequent alliances and connec. tions with France and the continent, where the civil law chiefly prevailed.

(5) Accurately, 1,997,7631. 8s. 4d the sum raised by a land tax of 4s, in the pound. VOL. I.


18. The laws relating to trade, customs, and the excise, shall be the same in Scotland as in England. 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. [97] 22. 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 (6).

(6) By the 25th article it is agreed, that all laws and statutes in either kingdom, so far as they are contrary to these articles, shall cease and become void. From the time of Edw. IV. till the reign of Ch. II. both inclusive, our kings used frequently to grant, by their charter only, a right to unrepresented towns of sending members to parliament. The last time this prerogative was exercised, was in the 29 Ch. II. who gave this privilege to Newark; and it is remarkable, that it was also the first time that the legality of this power was questioned in the house of commons, but it was then acknowledged by a majority of 125 to 73. r Comm. Jour. 21 March 1676-7.) But notwithstanding it is a general rule in our law, that the king can never be deprived of his prerogatives, but by the clear and express words of an act of parliament; yet it has been thought, from this last article in the act of union, that this prerogative of the crown is virtually abrogated, as the exercise of it would necessarily destroy the proportion of the representatives for the two kingdoms. (See 1 Doug. El. Cases, 70. The Preface to Glano. Rep. and Simeon's Law of Elect. 91.) It was also agreed, that the mode of the election of the peers and commons should be settled by an act passed in the parliament of Scotland, which was afterwards recited, ratified, and made part of the act of union. And by that statute it was enacted, that of the 45 commoners, 30 should be elected by the shires, and 15 by the boroughs; that the city of Edinburgh should elect one, and that the other royal boroughs should be di. vided into fourteen districts, and that each district should return one. It was also provided, that no person should elect or be elected

23. The sixteen 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 (7).

one of the 45, but who would have been capable of electing, or of being elected, a representative of a shire or a borough to the parlia. ment of Scotland. Hence the eldest son of any Scotch peer cannot be elected one of the 45 representatives ; for by the law of Scotland, prior to the union, the eldest son of a Scotch peer was incapable of sitting in the Scotch parliament. (Wight, 269.) There seems to be no satisfactory reason for this restriction, which would not equally extend to the exclusion of all the other sons of a peer. Neither can such eldest son be entitled to be enrolled and vote as a freeholder for any commissioner of a shire, though otherwise qualified, as was lately determined by the house of lords in the case of lord Daer, March 26, 1793. But the eldest sons of Scotch peers may represent any place in England, as many do. (2 Hats. Prec. 12.) The two statutes, 9 Ann. c. 5. and 33 Geo. II. c. 20. requiring knights of shires and members for boroughs to have respectively 6001. and 3001. a year, are expressly confined to England. But a commissioner of a shire 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 case of Wigtown in 1775, (2 Doug. 181.) it was supposed that it was necessary that every representative of a borough should be admitted a burgess of one of the boroughs which he represented. (Wight, 404.) It still holds generally true in shires in Scotland, that the qualifications of the electors and elected are the same ; or that eligibility and a right to elect are convertible terms. Upon some future occasion I shall endeavour to prove, that, in the origin of representation, they were universally the same in England.

(7) Since the union, the following orders have been made in the house of lords respecting the peerage of Scotland. Queen Anne, in the sev. enth year of her reign, had created James duke of Queensbury duke of Dover, with remainder in tail to his second son, then earl of Solway THESE are the principal of the twenty-five articles of union, which are ratified and confirmed by statute 5 Ann. c. 8. in which statute there are also two acts of parliament

in Scotland ; and upon the 21st of January 1708-9, it was resolved by the lords, 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, and who now sits in the parliament of Great Britain, had no right to vote in the election of the sixteen peers who are to represent the peers of Scotland in parliament.

The duke of Hamilton having been created duke of Brandon, it was resolved 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, should entitle him to sit in parliament. Notwithstanding this resolution 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 summons as duke of Dover ; the question was again argued on the 18th of December 1719, and the claim as before disallowed. (See the argument, 1 P. Wms. 582.) But in 1782 the duke of Hamilton claimed to sit as duke of Brandon, and the question being referred to the judges, they were unanimously of opinion, that the peers of Scotland are not disabled from receiving, subsequently to the union, a patent of peerage of Great Britain, with all the privileges usually incident thereto. Upon which the lords certified to the king, that the writ of summons ought to be allowed to the duke of Brandon, who now enjoys a seat as a British peer. (6th June 1782.) But there never was any objection to an English peer's taking a Scotch peerage by descent; and therefore, before the last decision, when it was wished to confer an English title upon a noble family of Scotland, the eldest son 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 resolved, that the earl of Abercom and the duke of Queensbury, who had been chosen of the number of the sixteen peers of Scotland, having been created peers

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