The composite nature of the United Kingdom created by the union of the Crowns of England, Scotland, and Ireland, presents interesting points of comparison and contrast with the form of a federal union of the USA or unitary union of India. The United Kingdom is ruled by a single sovereign Parliament; but the identity of the component parts is by no means wholly lost, as will appear from a brief reference to the Acts of Union. In this regard, we can also go through the preamble of the CONSTITUTION OF SWITZERLAND.
In the name of Almighty God. The Swiss Confederation, desiring to confirm the alliance of the Confederates, to maintain and to promote the unity, strength and honour of the Swiss nation . . . The purpose of the Confederation is to secure the independence of the country against foreign nations, to maintain peace and order within, to protect the liberty and the rights of the Confederates and to foster their common welfare. (Preamble and Art. 2, 29th May, 1874.)
UNION OF ENGLAND AND SCOTLAND
Although the Crowns of England and Scotland were united upon the accession of James VI. of Scotland to the English throne, under the title of James I., in 1603, the two countries continued separate and distinct kingdoms, subject to the administration of two different executives and to the legislation of two independent Parliaments, for over one hundred years. The Union of the two kingdoms was, for many years, projected and discussed before the proposal assumed a tangible shape. During the reigns of Charles II. and James II., Commissioners were appointed in England to negotiate with Commissioners similarly appointed in Scotland in order to settle the terms of the Union, but no agreement was then arrived at. The realization of the manifest destiny of England and Scotland was reserved for the reign of Queen Anne.
By the Act of 1 Anne c. 8 (1702), authority was given for the appointment of a Commission representing England to meet a similar Commission representing Scotland to settle the Articles for the Union of the two kingdoms. The Commissioners met at Whitehall on 16th April, 1706, and they completed their labours and signed the treaty of Union on 22nd July following. The Treaty consisted of 25 Articles, of which the leading provisions were as follows:—
The Union.—That on 1st May, 1707, and for ever afterwards, the kingdoms of England and Scotland should be united into one kingdom by the name of Great Britain; that the succession to the throne of Great Britain should be vested in the Princess Sophia and her heirs according to the Act of Settlement passed by the English Parliament for that purpose; that there should be one Parliament for the whole kingdom.
Rights of Subjects.—That all the subjects should enjoy the same rights, immunities and privileges; have the same allowances, encouragements and drawbacks, and be under the same regulations and restrictions as to trade and commerce.
Trade and Finance.—That Scotland should not be charged with temporary duties on certain commodities; that the sum of £398,103 should be granted to Scotland as equivalent for such parts of the customs and excise charged upon that kingdom in consequence of the union, as would be applicable to the payment of the debts of England, according to the proportions which the customs and excise of Scotland bore to those of England; that as the revenues of Scotland should increase, a fair equivalent should be allowed for such proportion of the said increase as should be applicable to payment of the debts of England; that the sums to be thus paid should be employed in reducing the coin of Scotland to the standard and value of the English coin, in paying off the capital, stock and interest due to the proprietors of the African Company which should immediately be dissolved, in discharging all the public debts of the Kingdom of Scotland, in promoting and encouraging manufactures and fisheries under the direction of Commissioners to be appointed by Her Majesty and accountable to the Parliament of Great Britain.
Public Laws.—That laws relating to public right, policy, and civil government should be alike throughout the whole kingdom, and that no alteration should be made in laws which concerned private right except for the evident benefit of the people of Scotland.
Judicial System.—The Court of Session and all other courts of judicature in Scotland should remain as constituted, with all authority and privileges as before the union, subject only to the power of the Parliament of the United Kingdom.
Local and Municipal.—All heritable offices, superiorities, heritable jurisdictions, offices for life, and jurisdictions for life, should remain the same as rights and properties as then enjoyed by the laws of Scotland. The rights and privileges of the royal boroughs in Scotland were to remain unaltered.
Representation in Imperial Parliament.—Scotland should be represented in Parliament by sixteen peers elected from Parliament to Parliament, and forty-five commoners to be elected in a manner to be settled by the Parliament of Scotland before its dissolution. All peers of Scotland and the successors to their honours and dignities should from and after the union take rank and precedency next and immediately after the English peers of the like orders and degrees at the time of the union, and before all English peers of the like orders and degrees as should be created after the union; they should be tried as peers of Great Britain, and enjoy all the privileges of peers of England except that of sitting in the House of Lords and the privileges depending thereon, and particularly the right of sitting upon the trials of peers.
The Crown.—The crown, sceptre and sword of state, the records of Parliaments, and all other records, rolls and registers whatsoever, should still remain as they were in Scotland.
Existing Laws.—All laws and statutes in either kingdom inconsistent with these terms of union should cease and be declared void by the Parliaments of the two kingdoms. The standard of weights and measures should be reduced to that of England. The laws relating to trades, customs and excise should be the same in England and Scotland; all other laws in Scotland to remain in force until altered by the Parliament of Great Britain.
Religion.—The establishment of the Presbyterian religion was guaranteed in Scotland, with a proviso that it should not at all concern the established religion of England; each religion was in its respective country to maintain its acknowledged ascendency. It was further provided that every professor of a Scottish University should acknowledge, profess and subscribe to the ‘Confessions of Faith;’ these provisions relating to religion were asserted to be fundamental and essential conditions of the union in all time coming.
In the Scottish Parliament, October, 1706, every article in the treaty was bitterly resisted, but eventually it was carried by an overwhelming majority of votes, with but few alterations of any consequence; in fact the only additions made to the articles in the Scottish Parliament related to some trivial bounty on oats, which were then grown largely in Scotland; to regulations relating to salted meats and salted fish, and to the
encouragement of the herring industry. In the final session of the Scottish Parliament an Act was passed to regulate the election of 16 peers and 45 commoners to represent Scotland in the British Parliament. On the 25th March, 1707, the Scottish Parliament rose never to reassemble.
On 28th January, 1707, the English Parliament met and was informed by the Queen that the Articles of Treaty with some slight modifications had been adopted by the Scottish Parliament. The terms of the treaty were fiercely resented in some quarters. High Churchmen denounced the establishment of two religions; others protested against the financial part of the arrangement. However, a Bill ratifying the treaty was passed by the English Parliament, amid vehement protests from a few, but without serious opposition. The result of the ratification of the treaty by the two Parliaments was the establishment of the one Kingdom of Great Britain in place of the two Kingdoms of England and Scotland. The Parliament of England and the Parliament of Scotland both ceased to exist, and the Parliament of Great Britain took their place. (6 Anne c. 11.)
“No change ever took place under more violent or general opposition, none in which more evils and calamities were prognosticated. The Scotch believed that their trade would be destroyed, their nation oppressed, and their country altogether ruined through the overwhelming influence of England. But if we look at the condition of Scotland now—at the increase of its population, the increase of its wealth and comfort, the growth of its towns, the extension of its trade and manufactures—there is scarcely anything so striking in the history of the world as the wonderful advance of Scotland since and in consequence of the union. If we look at the vast numbers of Scotch who have settled in England and in all the colonies, at the numbers who have located themselves in eminent places in the literature, law, and government of England, how wonderful is the contrast betwixt the outcry against the union and the results! But to all parts of the Empire the union has been scarcely less beneficial by the peace, unity, and strength which it has conferred, and by the infusion of Scotch enterprise, industry, and perseverance into the texture of the English character. What Defoe says of the treaty is undoubtedly true. It is one of the greatest measures and most ably-framed which ever distinguished any reign or country. ‘I shall not,’ says that great writer, ‘descend to encomiums on the persons of these treaters, for I am not about to write a panegyric here, but an impartial and unbiassed history of fact, but since the gentlemen have been illtreated, especially in Scotland—charged with strange things, and exposed in print by some who had nothing but their aversion of the treaty to move them to maltreat them, I must be allowed on all occasions to do them justice in the process of this story. And I must own that generally
speaking, they were persons of the greatest probity, the best characters, and the stoutest adherents to the true interests of their country: so their abilities will appear in every step taken in so great a work; the bringing it to so good a conclusion and that in so little time, the rendering it in so concise a form and so fixing it that when all the obstruction imaginable was made to it afterwards in the Parliament of Scotland, the mountains of objections that first aroused the world proved such molehills, were so easily removed, raised so much noise, and amounted to so little in substance that, after all was granted that could in reason be demanded, the amendments were so few and of so little weight, that there was not one thing material enough to obtain a negative in the English Parliament.’ ” (Cassell’s Hist. of Eng., IV., p. 225.)
By the Reform Act of 1832 (2 and 3 Will. IV. c. 45) the number of Scotch members in the House of Commons was increased to 53 in all, and by the Reform Act of 1867 (30 and 31 Vic. c. 102) that number was increased to 60, whilst by the redistribution of seats in 1885 (48 Vic. c. 3) Scotland was allotted 12 additional seats, making in all 72 members.
UNION OF GREAT BRITAIN AND IRELAND
In the reign of Henry (1172–3) Ireland became à Dominion or Lordship of the King of England, who was styled ‘Dominus Hibernioe.’ Since then the Crown has been continuously represented in Ireland by an Administrative Official under the varying names of Chief Governor, Justiciary, Lord Deputy and Lord Lieutenant. The Lordship of Ireland was eventually converted into a kingdom, and in 1542 the King of England became King of Ireland; that title was conferred on him by an Irish Act, 33 Henry VIII, Ir. c. I., and was recognized by an English Act, 35 Henry VIII. c. 3. From that period the Crown of Ireland became inseparably annexed to the Crown of England.
Ireland may be deemed to have had legislative assemblies or councils similar to those in England, based on the principle of elective representation, from the year 1295. Those assemblies or councils gradually developed into a Parliament, composed, according to the English model, of a House of Lords and a House of Commons. There were, however, several serious limitations on the authority of the Irish Parliament; (1) internal restraints in the shape of the Irish Privy Council, and restrictive regulations self-imposed by the Irish Parliament, under the dominating influences of the executive; and (2) external restraints in the competing authority of the English Parliament. In 10 Hen. VII. (1495) an Act was passed by the Irish Parliament called “Poynings’ Law;” taking its name from Sir Edward Poynings, the Chief Governor. This law provided that no Parliament should be convened in Ireland until the causes and considerations thereof, and all such measures as were proposed to be introduced and all such Acts as were proposed to be passed, were previously certified by both Houses to the King, and the King’s license for the holding of the Parliament was issued; and only such business as was previously approved of by the King could be introduced into the Parliament and dealt with by it when it was assembled. This greatly contracted the authority of the Irish Parliament, and, in time, nothing was left to it but the power to reject without the power to initiate or amend Bills.
In addition to this internal limitation, the Irish Parliament was restrained, in its legislative action, by a claim put forward by the English Parliament that it had a concurrent, if not a paramount, jurisdiction over, and right to legislate for, Ireland; it being contended that the authority of the Irish Parliament was not exclusive but secondary and subordinate. In the reigns of Charles II., William III., and Anne, several statutes were passed in England expressly binding Ireland, such as the Navigation Act, the Woollen Act, and the Tobacco Act. Despite protests, the English Parliament continued to legislate for Ireland. Especially in the matter of foreign trade, the Parliament of England, and afterwards the Parliament of Great Britain, claimed the right to legislate for the whole of the British Isles, and at length the Act of 6 Geo. I. c. 5 (1719) was passed, declaring that Ireland was a subordinate kingdom, and that the Parliament of Great Britain had full power to bind the people of Ireland. In 1782, however, the legislative independence of the Irish Parliament was restored by three statutes. (1) By 22 Geo. III. c. 53 (1782), the Act of 6 Geo. I. c. 5 was repealed. (2) By 23 Geo. III. c. 28 (1783), the right of the Irish people to be bound only by the Acts of the Irish Parliament was affirmed in these words:—“The right claimed by the people of Ireland to be bound only by laws enacted by His Majesty and the Parliament of that kingdom in all cases whatsoever, and to have all actions and suits instituted in that kingdom decided in His Majesty’s courts there finally and without appeal from thence, is established and ascertained for ever.” (3) By 21 and 22 Geo. III. Ir. c. 47 (1781), the Crown assented to a modification of Poynings’ Law, and thus freed the Irish Parliament from its self-imposed restraints, and from the control of the Privy Council.
After 1782, as before, the Irish Parliament had no control of the Executive, which was vested in the Lord-Lieutenant and his Chief Secretary, who were nominated by the British Government. The King, as King of Great Britain, acted on the advice of his Ministers; as King of Ireland, on the advice of the Irish Executive. The views and interests of England might seriously differ from those of Ireland on grave questions, such as peace and war, trade and commerce. The Irish Parliament, however, whilst it had no voice in such great issues, could not be forced to raise men or money to carry on a war. A conspicuous defect of such a complicated distribution of sovereign power was that it was unaccompanied by any provisions for the settlement of deadlocks or for reconciling differences that might arise between the two kingdoms.
The circumstances that led up to the passage of the Act of Union necessarily belong to the political history of Ireland. By the Irish Act, 40 Geo, III. Ir. c. 38, and by the British Act, 39 and 40 Geo. III. c. 67 (1800) the Kingdoms of Great Britain and Ireland became united into one Kingdom under the name of the United Kingdom of Great Britain and Ireland. The Parliaments of Great Britain and of Ireland became merged in one Imperial Parliament of the United Kingdom. Some of the chief Articles of this great statute, condensed from Tomlins’ Law Dictionary, may be reproduced:—
The Union.—The kingdoms of Great Britain and Ireland shall after 1st January, 1801, and for ever, be united into one kingdom, by the name of the United Kingdom of Great Britain and Ireland.—Art. I.
The Crown.—The succession to the Crown of the United Kingdom shall continue limited and settled in the same manner as the succession to the Crown of Great Britain and Ireland stands limited and settled according to the existing laws, and to the Terms of Union between Great Britain and Scotland.— Art. II.
The Executive.—The Act of Union made no alteration in the Constitution of the Irish Executive, which still consists of a Lord Lieutenant, assisted by the Privy Council of Ireland.—Art. II.
Parliament.—The United Kingdom to be represented in one Parliament. Four Lords Spiritual of Ireland, by rotation of Sessions, viz.—One of the four Archbishops, and three of the eighteen bishops, and 28 Lords Temporal of Ireland (elected for life, by the Peers of Ireland), shall sit in the House of Lords of the Parliament of the United Kingdom; and in the House of Commons, 100 Commoners; two for each of the 32 counties in Ireland; two for Dublin; two for Cork; one for Trinity College, Dublin; and one for each of the 31 most considerable cities, towns, and boroughs.—Arts. III.-IV.
Ecclesiastical.—The Churches of England and Ireland shall be united into one Protestant Episcopal Church to be called “The United Church of England and Ireland,” according to the doctrine, worship, discipline, and government of the Church of England. The Church of Scotland to remain as under the Union of that Kingdom.—Art. V.
Commerce.—The subjects of Great Britain and Ireland shall be entitled to the same privileges, and be on the same footing as to encouragements and bounties on the like articles, the growth, produce, or manufacture of either country respectively, and generally in respect of trade and navigation in the ports and places in the United Kingdom, and its dependencies; and in all foreign treaties Irish subjects shall be put
on the same footing as subjects of Great Britain. All prohibitions and bounties on the export of articles, the growth, produce, or manufacture of either country to the other, shall cease. All articles, the growth, produce or manufacture of either country (not enumerated and subjected by the Act to specific duties) shall be imported into each country from the other free of duty, except countervailing duties. For 20 years from the Union certain articles were subjected to specified duties.
National Debt.—By Article VII. it was provided that the charge of the separate national debt of either country before the Union should continue to be separately defrayed by the respective countries.—Art. VII.
Existing Laws.—All laws in force at the time of the Union, and all courts, civil and ecclesiastical, within the respective kingdoms, shall remain as established, subject to future alterations by the United Parliament. All writs of error and appeals (determinable in the House of Lords of either kingdom) shall be decided by the House of Lords of the United Kingdom. The Instance Court of Admiralty in Ireland shall continue, with appeals to the delegates in Chancery there.—Art. VII.
Before parting, we must mention the preamble of the Australian Constitution
Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland
Source: Commentaries on the Constitution of the Commonwealth of Australia Garran, Robert, Sir (1867-1957)
Categories: Law of England