ever elſe may be deemed “fundamental 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 alteration in the conſtitutions of either of thoſe churches, or in the liturgy of the church of England, 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 parliament; 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, generally ſpeaking, of no force or validity in Scotland; 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 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 it’s ſubjection, it received from that prince a charter, which (after it’s 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 it’s reduction
ed to alter every part of it’s 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 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 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 not certainly deſtroy) the union.
