and distinct kingdom, until 1707, when, by the Act of Union, it was declared that the "kingdoms of England and Scotland should be united into one kingdom by the name of Great Britain." The northern kingdom thereby became subject to the legislation of parliament, and its courts subject to the supreme authority of the house of lords. The Presbyterian Church, or "Kirk" of Scotland, has retained its independent democratic organization; the crown retaining only the right to grant one-third of the benefices, and to appoint a lord high commissioner to the general assembly of the kirk, such office, however, being of a purely honorary nature. The laws of Scotland have been recognized by the act of union, but are subject to modification by parliament; 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. Every act of parliament passed since the union, applies to Scotland, unless the latter has been expressly excepted therein. Common law and equity are under one and the same jurisdiction in Scotland; the grand jury does not exist, nor is a unanimity of the jury necessary. The authority of the sheriff in Scotland is much more extensive than in England; the office was formerly often hereditary, or held for life. There are, further, exempted districts or "stewartries," administered by a steward. Since the reign of George II. the crown has acquired the right of nominating these functionaries, who hold office during life, and must be advocates of three years' standing. Since 9 Geo. IV. c. 29, s. 22, they are styled "sheriffs." There is at least one sheriff court for each county, the immediate business being conducted before the sheriff-substitute; there are certain acts, however, both judicial and executive, which must be performed by the sheriff-principal. By an act passed in 1855, arrangements were made for grouping the counties into districts, and one sheriff-principal serves for all the counties of each district. Justices of peace, appointed under royal commission, and magistrates of municipal corporations, have jurisdiction in Scotland both in civil and criminal matters; their authority is, however, restricted within a narrow sphere by the efficiency of the jurisdiction exercised by the sheriffs, who are professionally trained and responsible judges. The supreme court in civil matters is the court of session, consisting of thirteen judges; they act in what is called the "inner" and the "outer" house. The latter is the court of first instance, whence litigations pass to the inner as to a court of review. Five of the junior judges sit in the outer house, each holding a separate court, called the court of a lord ordinary. The inner house is apportioned into two divisions, each consisting of four judges. An ordinary litigation in the court of session comes first before the lord ordinary, and may be taken for review to one of the divisions of the inner house, where a decision is regarded as a decision of the court of session. The supreme tribunal for matters criminal is the court of justiciary, consisting of five of the judges of the court of session. The "high court of justiciary" sits in Edinburgh, but circuit-courts of justiciary are held, four in Glasgow, and two in the other circuit districts annually. This court has jurisdiction in all criminal charges, except those which are reserved by statute for summary trial in inferior tribunals. There are points which can be referred from the circuit courts to the high court of justiciary. The head of this court is the lord justice-general, who acts also as president of the court of session.* Till 33 Hen. VIII. Ireland was only a lordship of the crown. The ancient national or Brehon law was overborne by the English law so early as the time of the Plantagenets. King John is said to have ordained that Ireland should be governed by the laws of England, but to this ordinance the natives were indisposed to conform, and still clung to their ancient Brehon law, which was only formally abolished in a parliament holden at Kilkenny, 40 Edw. III. The original method of passing statutes in Ireland was nearly the same as in England, the chief governor holding parliaments at his pleasure, which enacted such laws and imposed such taxes as might be deemed expedient for Ireland. The parliament of England, in like manner, might issue statutes applying to Ireland, and the parliament of the latter country was kept in a very subordinate position. The equity and common law courts are separate in Ireland, just as in England. The courts of justice, even before the union, were in a similar state of dependence, as there was an ultimate resort to the English courts. The superiority of the English parliament was often disputed by the Irish nation, and to define exactly the relation of Ireland to England it was declared, by 6 Geo. I. c. 5, that the * Encyc. Brit., article, "Scotland." kingdom of Ireland ought to be subordinate to, and dependent upon, the imperial crown of Great Britain, as being inseparably united thereto, and that the king's majesty, with the consent of the lords and commons of Great Britain in parliament, had power to make laws to bind the people of Ireland. After a time, however, this statute was repealed, and by 23 Geo. III. c. 28, it was declared that the parliament and courts of Ireland had an exclusive right as to all matters of legislation and judicature in that country; this emancipation was followed, however, at no distant period by a fresh enactment, and by 39 & 40 Geo. III. c. 67, İreland was made an integral part of the British dominions. Since the union all acts of parliament extend to Ireland, whether expressly mentioned or not, unless that portion of the United Kingdom be expressly excepted, or the intention to except it be otherwise plainly shown. Gibraltar, Malta, Heligoland, St. Helena, and the Island of Ascension, are administered by royal governors. In Gibraltar the governor is the sole legislator, under control of the home government. In Heligoland there exists an assembly for local requirements. In Malta, in conjunction with the governor, there is an assistant council, which is partly elective. In St. Helena the council of the governor is appointed by the crown. CHAPTER II. THE COLONIES. Three Classes of Colonies.-Magna Charta of the Colonies.-Governors.-Episcopal Sees.-Individual Colonial Constitutions.-1. Canada: Power of the Governor, -2. Jamaica.-3. Columbia.-4. Guiana.-5. Trinidad, St. Lucia, and the Falkland Islands.-6. Ceylon and Hong Kong.-7. Cape Colony.-8. Australia : -Captain-General; Recent Constitutions; New South Wales; Victoria; Van Dieman's Land (Tasmania); South Australia; Western Australia-9. New Zealand. THERE are three classes of colonies :-The first, provincial establishments, having a constitution organized in accordance with the commission granted by the crown to the governors, under the authority of which the assemblies are invested with the power of making local ordinances, not repugnant to the law of England. The second class consists of those proprietary governments granted by the crown to individuals, in the nature of feudatory principalities, and subordinate powers of legislation, similar to those formerly possessed by owners of counties palatine. The third class, charter governments, in the nature of civil corporations, with such rights and authorities as are specially given in the charter of incorporation. There is, at present, no proprietary colony in existence, and almost all the colonies pertain to the first class, with the exception of Sierra Leone. By the 6 Geo. III. c. 12, it was declared that all the American colonies are, and of right ought to be, subordinate to, and dependent upon, the imperial crown and parliament of Great Britain, who have full power and authority to make laws binding the colonies and people of America. In 1782, however, this power, so far as regards taxation, was formally renounced by the 18 Geo. III. c. 12, it being declared that the king and parliament of Great Britain will not impose any duty, tax, or assessment whatever payable in any of his majesty's colonies, provinces, or plantations in North America. The exercise of the so-called "right" of the British parliament to raise a revenue by colonial taxation, led to the rebellion of the North American provinces, which resulted in their independence. Wherever colonial representations now exist, the crown merely imposes upon the colonies such restrictions as are necessary for the regulation of trade, and for the benefit of the colonies. The statute 18 Geo. III. c. 12, is termed the Colonial Magna Charta; parliament is competent, however, to modify or abolish the resolutions of the colonial assemblies. Acts of parlia "A sovereign government, whether of one or of a number, in its collegiate capacity can have no legal rights against its own subjects. To every legal right there are three several parties: namely, a party bearing the right; a party burthened with the relative duty; and a sovereign government setting the law, through which the right and the duty are respectively conferred and imposed. A sovereign government cannot acquire rights through laws set by itself to its own subjects. A man is no more able to confer a right on himself than he is able to impose on himself a law or duty. Every party bearing a right, divine, legal, or moral, has necessarily acquired the right through the might or power of another. Consequently if a sovereign government had legal rights against its own subjects, those rights were the creatures of positive laws, set to its own subjects by a third person or body. And, as every positive law is laid by a sovereign government on a person or persons in a state of subjection to itself, that third person or body were sovereign in that community whose own sovereign government bore the legal rights; that is to say, the community were subject to its own sovereign, and were also subject to a sovereign conferring rights upon its own, which is impossible and absurd. But so far as they are bound by the law of God to obey their temporal sovereign, a sovereign government has rights divine against its own subjects; and, so far as the members of its own community are severally constrained to obey it, by the opinion of the community at large, it has also moral rights against its own subjects severally considered. Consequently, when we say that a sovereign government, as against its own subjects, has or has not a right to do this or that, we necessarily mean by a right, a right divine or moral; that it has or has not a right, derived from a law of God, or derived from a law improperly so called, which the general opinion of the community sets to its members severally. But when we say that a government, as against its own subjects, has or has not a right to do this or that, we not uncommonly mean that we deem the act in question generally useful or pernicious. To ignorance or neglect of the palpable truths thus expounded may be imputed the pernicious jargon that was current in this country on the eve of her horrible war with her North American children. By the great and small rabble in and out of parliament, it was said that the government sovereign in Britain was also sovereign in the colonies; and that since it was sovereign in the colonies, it had a right to tax their inhabitants. It was objected by Mr. Burke to the project of taxing their inhabitants, that the project was inexpedient-pregnant with probable evil to the colonies, and pregnant with probable evil to the inhabitants of the mother country. But to that most rational objection the sticklers for the scheme of taxation returned this asinine answer. They said that the British government had a right to tax the colonists, and that it ought not to be withheld by paltry considerations of expediency, from enforcing its sovereign right against its refractory subjects. Now, assuming that the government sovereign in Britain was properly sovereign in the colonies, it had no legal right to tax its colonial subjects; although it was not restrained by positive law, from dealing with its colonial subjects at its own pleasure or discretion. If, then, the sticklers for the scheme of taxation had any determinate meaning, they meant that the British government was empowered by the law of God to tax its American subjects; but it had not a divine right to tax its American subjects, unless the project of taxing them accorded with general utility; for every divine right springs from the divine law; and to the divine law general utility is the index. Consequently, when the sticklers for the scheme of taxation opposed the right to expediency, they opposed the right to the only test by which it was possible to determine the reality of the right itself." --Austin, On Jurisprudence, 250-260. |