The History of the Common Law of England [66]
to those Matters, were as it were the Original and Exemplar from whence those Similar or Parallel Laws of Scotland were derived or borrowed. Thirdly, I come now to consider the Third Particular, viz. By what Means, or by what Reason this Similitude of Laws in England and Scotland happened, or upon what Account, or how the Laws of England at least in many Particulars, or Capita Legum, came to be communicated into Scotland, and they seem to be principally these two, viz. First, The Vicinity of that Kingdom to this. And Secondly, The Subjection of that Kingdom unto the Kings of England, at least for some considerable Time. Touching the former of these; First, It is very well known, that England and Scotland made but one Island, divided not by the Sea or any considerable Arm thereof, but only by the Interjacency of the River Tweed, and some Desart Ground, which did not hinder any easy common Access of the People of the one Kingdom to the other: And by this Means, First, The Intercourse of Commerce between that Kingdom and this was very frequent and usual, especially in the Northern Counties, and this Intercourse of Commerce brought unto those of Scotland an Acquaintance and Familiarity with our English Laws and Customs, which in Process of Time were adopted and received gradually into Scotland. Again, Secondly, This Vicinity gave often Opportunities of transplanting of Persons of either Nation into the other, especially in those Northern Parts, and thereby the English transplanted and carried with them the Use of their Native Customs of England, and the Scots transplanted hither, became acquainted with our Customs, which by occasional Remigrations were gradually translated and became diffus'd and planted in Scotland; and it is well known, that upon this Account some of the Nobility and great Men of Scotland had Possessions here as well as there: The Earls of Angus were not only Noblemen of Scotland, but were also Barons of Parliament here, and sate in our English Parliaments, as appears by the Summons to Parliament, Tempore Edvardi Tertii. Again, Thirdly, The Kings of Scotland had Feodal Possessions here; for Instance, The Counties of Cumberland, Northumberland and Westmoreland, were anciently held of the Crown of England by the Kings of Scotland, attended with several Vicissitudes and Changes until the Feast of St. Michael, 1237, at which Time Alexander King of Scotland finally released his Pretensions thereunto, as appears by the Deed thereof enter'd into the Red-Book of the Exchequer, and the Parliament Book of 20 E. I. and in Consideration thereof, Hen. 3. gave him the Lands of Penreth and Sourby, Habend' sibi Heredibus suis Regibus Scotiae, and by Virtue of that Special Limitation, they came to John the eldest Son of the eldest Daughter of Alexander King of Scotland, together with that Kingdom; but the Land of Tindale, and the Manor of Huntingdon, which were likewise given to him and his Heirs, but without that Special Limitation, Regibus Scotiae, fell in Coparcenry, one Moiety thereof to the said John King of Scotland, as the Issue of the eldest Daughter, and the other Moiety to Hastings, who was descended from the younger Daughter of the said Alexander: But those Possessions came again to the Crown of England by the Forfeiture of King John of Scotland, who through the Favour of the King of England he had Restitution of the Kingdom of Scotland, yet never had Restitution of those Possessions he had in England, and forfeited and lost by his levying War against the Kingdom of England, as aforesaid. And thus I have shewn, that the Vicinity of the Kingdoms of England and Scotland, and the Consequence thereof, viz. Translations of Persons and Families, Intercourse of Trade and Commerce, and Possessions obtained by the Natives of each Kingdom in the other, might be one Means for communicating our Laws to them. But Secondly, There was another Means far more effectual for that End, viz. The Superiority and Interest that the Kings of England