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XI.

1709.

of the Eng

law.

Their acquittal disappointed and enraged the ministers; and in the succeeding parliament a bill was introduced for improving the union of the lish trea on two kingdoms, by extending to Scotland the English laws against high treason, and misprision of treason. The Scottish members were unanimous in their opposition to the first attempts to reduce their country under the laws of England; they maintained that the bill was derogatory, not only to their public, but to their private rights which the union had reserved. When the laws of each nation were examined, the public discovered, with surprise, that the mode of trial for treason was more favourable to the accused, and the punishment far more lenient in Scotland. Till the preceding reign, the culprit had been deprived in England of a copy of his indictment; of a list of jurors; and of the aid of counsel to plead in his defence; which are still denied in inferior crimes, Peremptory challenges were refused in Scotland; but the prisoner was entitled to counsel; to a copy of his indictment, and to a list not only of jurors but of witnesses, fifteen days before his trial began. Marriage settlements, entails, and the claims of creditors, were excepted from forfeiture; corruption of blood, as the consequence of attainder, was never incurred unless inflicted by the legislature 89; and the former iniquitous trials in Scotland appeared indisputably to have proceeded

89 Stair's Institutes, 441.

and

from the accumulation of statutory treasons, and from the arbitrary or corrupt practices of the justiciary court. But the Scots discovered, when

it was too late, that their representation was inadequate, in either house, to the preservation of their public or private rights. A vote to substitute the English treason laws for those of Scotland, was passed in opposition to their whole representatives. A few clauses were inserted, for the security of marriage settlements and entails; but the Scottish peers demanded in vain that the witnesses, as well as jurors, should be notified to the prisoner before he was arraigned, Burnet, bishop of Sarum, humanely proposed to abolish forfeiture and corruption of blood; and not to disinherit the innocent offspring for their father's crimes. As these popular amendments were resumed by the commons, the peers agreed to suspend their effects till the pretender's death, in the artful expectation that the consequences of attainder might be rendered perpetual by a succeeding parliament, as they were afterwards prolonged during the lives of his sons 9o. Under the same government, the same laws were established through Britain against state crimes. The Scots obtained the repeal of tortures, already disused, and a precise rule for the determination of treasons; while the laws of England, by the notification of the witnesses' names, have been improved from theirs. But the

90 Blackstone, iv. 384.

BOOK

XI.

1709.

XI.

BOOK introduction of foreign laws was odious to the nation; and the nobility attainted under the succeeding reign, still suffer in their posterity from penalties formerly unknown in Scotland.

1709.

view of the

Thus, above a century after the accession, when the crowns were united in James VI. the union of the kingdoms was finally accomplished, under the last sovereign of the house of Stuart. Henceforth a new series of events began. The struggles of contending factions were removed. New objects of ambition were presented to the statesman, who engaged in a lottery, of which the prizes were richer, but far more precarious; and when the legislature and seat of government were transferred to the English capital, the history of Scotland expired with its constitution.

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General re- When we review the principles, in order to principles trace the consequences, of this memorable transaction to the present times, the union must be classed among those great, political innovations in which motives, perhaps of a just expedience, have superseded the doctrines of abstract right. The addition of a few members to the English parliament, neither impaired the constitution, nor deprived the nation of a single representative. But the estates of Scotland, in opposition to the acknowledged voice and sense of the nation, had undoubtedly no more right, abstractedly considered, to transfer their derivative, fiduciary powers to another parliament, than to deprive the people

the crown.

But

of the choice of their own representatives, or to
surrender their legislative functions for ever to
The subsequent acquiescence, or ra-
ther the virtual consent of the people, has sanc-
tioned a transaction to which three fourths of the
nation were originally adverse; and it may be
truly affirmed that an event of such national im-
portance and magnitude, so widely beneficial to
succeeding times, was never yet accomplished en-
tirely by the purest means, nor without some
violence to the freedom of popular consent,
the union, if defective as a question of abstract
right, had in point of political expediency become
indispensable. Two nations under different legisla
tures, when united merely by a common allegiance
to the same sovereign, are held together by the
most slender ties. The connexion may be dissolved
by either, on the sudden resentment of a capricious
legislature, unless the one has acquired a compul-
sive, or corrupt ascendency over the counsels of
the other, to insure its uniform concurrence in
public affairs. The Scottish parliament therefore,
whenever it asserted its own independency, inust
have either been secured by immense bribes, anni-
hilated by an union, or reduced by force. The
first expedient is always precarious, and must have
sometimes failed. In the event of a disputed suc-
cession, which appeared inevitable, nothing less
than an union could have preserved the nation
from becoming either an easy conquest, or a field

BOOK

XI.

1709.

XI.

1709.

BOOK of future contention and bloodshed between England and France; and the loss of a corrupt and factious parliament, next to that of its exclusive government, was the greatest blessing which Scotland could obtain. The union, confirmed since by the national consent, has acquired, from political expedience, a stability which no Scotsman would propose to dissolve; and it leaves posterity little to regret, but that the views of the whigs were not more enlarged. If instead of being strictly limited to the exigencies of the times, their scheme of an incorporating union had comprehended the American colonies and Ireland, the former might have still been preserved to the mother country; the latter might have been reclaimed from its original barbarism; and the representatives of both, if introduced with the Scots, into the English parliament, instead of endangering, might have secured, its constitutional balance, and consolidated the strength of the British empire.

and consequences of the union.

1713.

But the union at first gave such little satisfaction, that before six years had elapsed, the same party by whom it was established, proposed to dissolve it, from the real or imaginary injuries which the nation had sustained. The duke of Queensberry had acquired a British title and seat in parliament; but from a laudable jealousy of the influence of the crown, he was deprived of a vote in the election of the sixteen peers for Scotland.

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