Note 56 — Chapter II

“Amongst these commissioners there grew a question, whether there could be made an Union of the Kingdoms by raising a new Kingdome of Great Britaine, before there was an Union of the Lawes. Which question, by the King’s commandment, was referred to all the Judges of England in Trinity Terme, Anno 2 Jac., who unanimously resolved (I being then Attorney General and present), that Anglia had lawes, and Scotia had lawes, but this new erected Kingdome of Britannia should have no law. And, therefore, where all the judiciall proceedings in England are secundum legem et consuetudinem Angliæ, it could not be altered secundum legem et consuetudinem Britanniæ, untill there was an Union of the lawes of both Kingdomes; which could not be done but by Authority of Parliament in either Kingdome” (Coke’s Institutes, part iv. cap. 75). On one point connected with the legal system of Scotland, James displayed greater foresight than even the Whigs of 1707. “The greatest hinderance,” he says in the Basilikon Doron, “to the execution of our lawes in this countrie, are these heritable Sheifdomes and Regalities, which being in the hands of the great men, doe wracke the whole countrey.” And then he recommends his son to look forward to a time when he might be able to abolish them, and introduce the English system; “Preassing with time, to draw it to the lawdable custome of England; which ye may the easilier doe, being King of both, as I hope in God ye shall.” The Heritable Jurisdictions, a curse to Scotland, were not abolished until after the second Jacobite Rebellion.