And when in the 27th Year of his Reign, the Pope, instigated by the French King, interpos'd in the Behalf of the King of Scotland, he and his Nobility resolutely denied the Pope's Intercession and Mediation.
Thus the Kingdom of Scotland continued in an actual Subjection to the Crown of England for many Years; for Rot.
Claus. 33 E. I. Membr. 13. Dorso, and Rot. Claus. 34 E. I. Memb.
3. Dorso; several Provisions are made for the better ordering of the Government of Scotland.
What Proceedings there were herein in the Time of Edw. 2 and what Capitulations and Stipulations were afterwards made by King Edw. 3 upon the Marriage of his Sister by Robert de Bruce touching the Relaxation of the Superius Dominium of Scotland, is not pertinent to what I aim at, which is, to shew how the English Laws that were in Use and Force in the Time of Edw. I obtained to be of Force in Scotland, which is but this, viz.
King Edward I having thus obtained the actual Superiority of the Crown of Scotland, from the Beginning of the Reign until his 20th Year, and then placing John de Baliol in that Kingdom, and yet continuing his Superiority thereof, and keeping his Courts of Justice, and exercising Dominion and Jurisdiction by his Officers and Ministers in the very Bowels of that Kingdom, and afterwards upon the Defection of this King John, in the 24th of Edw. Itaking the whole Kingdom into his actual Administration, and placing his own Judges and great Officers there, and commanding his Courts of King's-Bench (&c.) here, to Issue their Process thither, and continuing in the actual Administration of the Government of that Kingdom during Life: It is no Wonder that those Laws, which obtained and were in Use in England, in and before the Time of this King, were in a great Measure translated thither; and possibly either by being enacted in that Kingdom, or at least for so long Time, put in Use and Practice there, many of the Laws in Use and Practice here in England were in his Time so rivetted and settled in that Kingdom, that 'tis no Wonder to find they were not shaken or altered by the liberal Concessions made afterwards by King Edw. 3 upon the Marriage of his Sister; but that they remain Part of the Municipal Laws of that Kingdom to this Day.
And that which renders it more evident, That this was one of the greatest Means of fixing and continuing the Laws of England in Scotland, is this, viz. This very King Edw. I was not only a Martial and Victorious, but also a very Wise and Prudent Prince, and one that very well knew how to use a Victory, as well as obtain it: And therefore knew it was the best Means of keeping those Dominions he had powerfully obtain' d, by substituting and translating his own Laws into the Kingdom which he had thus subdued. Thus he did upon his Conquest of Wales; and doubtless thus he did upon his Conquest of Scotland, and those Laws which we find there so nearly agreeing with the Laws of England used in his Time, especially the Statutes of Westm. 1 and Westm. 2 are the Monuments and Footsteps of his Wisdom and Prudence.
And, as thus he was a most Wise Prince, and to secure his Acquests, introduced many other Laws of his Native Kingdom into Scotland; so he very well knew the Laws of England were excellent Laws fitted for the due Administration of Justice to the Constitution of the Governed, and fitted for the Preservation of the Peace of a Kingdom, and for the Security of a Government: And therefore he was very solicitous, by all prudent and careful Means imaginable, to graft and plant the Laws of England in all Places where he might, having before-hand used all possible Care and Industry for Rectifying and Refining the English Laws to their greatest Perfection.
Again, It seems very evident, that the Design of King Edw. Iwas by all Means possible to unite the Kingdom of Scotland (as he had done the Principality of Wales) to the Crown of England, so that thereby Britain might have been one entire Monarchy, including Scotland as well as Wales and England under the same Sceptre; and in order to the accomplishing thereof, there could not have been a better Means than to make the Interest of Scotland one with England, and to knit 'em as it were together in one Communion, which could never have been better done than by establishing one Common Law and Rule of Justice and Commerce among them; and therefore he did, as Opportunity and Convenience served, translate over to that Kingdom as many of our English Customs and Laws as within that Compass of Time he conveniently could.
And thus I have given an Essay of the Reasons and Means, how and why we find so many Laws in Scotland parallel to those in England, and holding so much of Congruity and Likeness to them.
And the Reason why we have but few of their Laws that correspond with ours of a later Date than Edw. I or at least Edw.
2 is because since the Beginning of Edw. 3 that Kingdom has been distinct, and held little Communion with us till the Union of the two Crowns in the Person of King James I and in so great an Interval it must needs he, that by the Intervention and Succession of new Laws, much of what was so ancient as the Times of Edw. I and Edw. 2 have received many Alterations: So that it is a great Evidence of the Excellency of our English Laws, that there remain to this Day so many of them in Force in that Part of Great Britain continuing to bear Witness, that once that excellent Prince Edw. I exercised Dominion and Jurisdiction there.
And thus far of the Communion of the Laws of England to Scotland, and of the Means whereby it was effected; from whence it may appear, That as in Wales, Ireland and Normandy, so also in Scotland, such Laws which in those Places have a Congruity or Similitude with the Laws of England, were derived from the Laws of England, as from their Fountain and Original, and were not derived from any of those Places to England.
