reduction by Edward I. Its constitution was new-modelled, and put upon an English footing by a charter of king James I.: and all its liberties, franchises, and customs, were confirmed in parliament by the statutes 22 Ed. 4, c. 8, and 2 Jac. 1, c. 28. This town, indeed, derived some local peculiarities from the ancient laws of Scotland(j), yet is clearly part of the realm of England, is represented by burgesses in the house of commons, and bound by all acts of the British parliament, whether specially named or otherwise. And it was (perhaps superfluously) declared and enacted by statute 20 Geo. 2, c. 42, s. 3, that where England only has been or shall be mentioned in any act of parliament, the same notwithstanding has been and shall be deemed and taken to comprehend and include the dominion of Wales and town of Berwick-upon Tweed. Moreover the writs or processes of the courts of Westminster run into Berwick, as into the principality of Wales, and it has been solemnly adjudged(k) that all prerogative writs (as those of mandamus(l), prohibition, habeas corpus(m), certiorari, &c.) may issue to Berwick, and that indictments and other local matters arising in the town of Berwick may be tried by a jury of the county of Northumberland (n). Also by the 109th section of the Municipal Corporations Reform Act (0), it was *enacted that Berwick-upon-Tweed [*110] should thenceforth be taken to be a "county of a town corporate "(p), except so far as relates to the return of a member to serve in parliament. As to Ireland, which, until A. D. 1801, was a kingdom distinct from England, Ireland was a dis- though dependent upon and subordinate to it, some brief his tinct kingdom till the act of union. torical disquisition may be proper. Upon king Henry VIII. was conferred, by an act of the Irish parliament(9) the title of "king" of that country, in lieu of the style Dominus Hiberniæ, which had been previously borne by an English sovereign(r). The inhabitants of Ireland are, for the most part, descended from the English, who planted it as a kind of colony, after the conquest of it by king Henry II.; and the laws of England were then received and sworn to by the Irish nation, assembled at the council of Lismore(s). And as Ireland, thus conquered, planted, and governed, continued in a state of dependence, it was necessarily obliged to conform to, and be bound by, such laws as the superior state thought proper to prescribe. At the time of this conquest the Irish were governed by what they called the Brehon law, so styled from the Irish name of judges, who were denominated BreThe Brehon law. hons(t). But king John in the twelfth year of his reign went into Ireland, and carried over with him many able sages of the law; and there by his letters patent, in right of the dominion of conquest, is said to have ordained and established that Ireland should be governed by the laws of England(u), which (j) Hale, Hist. C. L. 183; 1 Sid. 382, 462; 2 Show. 365. (k) Cro. Jac. 543; 2 Rol. Abr. 292; stat. 11 Geo. 1, c. 4; 2 Burr. 834, 855. (2) Tapping on Mandamus, 311. (m) Valuable information respecting this writ is given in the Pref. to The Canadian Prisoners' Case (edit. by Mr. Fry). (n) In R. v. Cowole, 2 Burr. 834, Lord Mansfield collected and methodized the learning respecting Berwick-upon-Tweed. (0) 5 & 6 Will. 4, c. 4, c. 76; and see 6 & 7 Will. 4, c. 103, s. 6. (p) As to which see post, p. 142. (7) 33 Hen. 8, c. 1; 35 Hen. 8, c. 3; with which compare stat. 32 Hen. 8, pref. (r) Stat. Hiberniæ, 14 Hen. 3. (8) Pryn. on 4 Inst. 249. (t) 4 Inst. 358; Edm. Spencer's State of Ireland, p. 1513, edit. Hughes. 23. (u) Vaugh. 294; 2 Pryn. Rec. 85; 7 Rep. letters patent sir Edward Coke(v) apprehends to have been there confirmed in parliament. *But to this ordinance many of the Irish were averse to [*111] conform, and still stuck to their Brehon law: so that both Henry III.(x) and Edward I.(y) were obliged to renew the injunction; and at length in a parliament holden at Kilkenny, 40 Edward III. under Lionel, duke of Clarence, the then lieutenant of Ireland, the Brehon law was formally abolished, it being unanimously declared to be indeed no law, but a lewd custom crept in of later times. And yet, even in the reign of queen Elizabeth, the wild natives still kept and preserved their Brehon law: which is described (2) to have been a "rule of right unwritten, but delivered by tradition from one to another, in which oftentimes there appeared great show of equity in determining the right between party and party, but in many things repugnant quite both to God's laws and man's." The latter part of this character alone is ascribed to it, by the laws before cited of Edward I. and his grandson. Formerly not governed by English statutes unless named therein. But as Ireland was a distinct dominion, and had parliaments of its own, it is to be observed, that though the immemorial customs, or common law of England, were made the rule of justice in Ireland also, yet no acts of English parliament, since the twelfth of king John, extend into that kingdom; unless it were specially named, or included under general words, such as, "within any of the king's dominions." And this is particularly expressed, and the reason given in the Year Books(a): "a tax granted by the parliament of England shall not bind those of Ireland, because they are not summoned to our parliament:" and again, "Ireland hath a parliament of its own, and maketh and altereth laws; and our statutes do not bind them, because they do not send *knights to our parliament: [*112] but their persons are the king's subjects, like as the inhabitants of Calais, Gascoigne, and Guienne, while they continued under the king's subjection." And this is in accordance with an established maxim, that the general run of laws, enacted by a superior state, are supposed to be calculated for its own internal government, and do not extend to its distant dependencies; which, bearing no part in the legislature, are not therefore in its ordinary and daily contemplation. But, when the sovereign legislative power sees necessary to extend its care to any of its subordinate dominions, and mentions them expressly by name, or includes them under general words, there can be no doubt but then they are bound by its laws(b). The original method of passing statutes in Ireland was nearly the same as in England, the chief governor holding parliament at his pleasure, which enacted such laws as they thought proper(c). But an ill use being made of this liberty, particularly by lord Gormanstown, deputy-lieutenant in the reign of Edward IV. (d), a set of statutes was there enacted in the 10 Hen. VII. (Sir Edward Poynings being then lord deputy, whence they are called Poynings' laws), one of which(e), in order to restrain the power as well of the deputy as of the Irish parliament, provided: 1. That before any parliament Poynings' laws. (v) 1 Inst. 141. (x) 1 Rym. Foed. 442. (y) Pro eo quod leges quibus utuntur Hybernici Deo detestabiles existunt, et omni juri dissonant, adeo quod leges censeri non debeant ;nobis et consilio nostro satis videtur expediens, eisdem utendas concedere leges Anglicanas. 3 Pryn. Rec. 1218. (z) Edm. Spenser, ubi supra. (a) 20 Hen. 6, 8; 2 Ric. 3, 12. (b) Year Book, 1 Hen. 7, 3; Calvin's Case, 7 Rep. 22. (c) Irish Stat., 11 Eliz. Stat. 3, c. 8. (d) Irish Stat. 10 Hen. 7, c. 23. (e) Cap. 4, expounded by the Irish Stat. 3 & 4 Ph. & M. c. 4. was summoned or holden, the chief governor and council of Ireland should certify to the king under the great seal of Ireland the considerations and causes thereof, and the articles of the acts proposed to be passed therein. 2. That after the king, in his council of England, shall have considered, approved, or altered the said acts or any of them, and certified them back under the great seal of England, and should have given licence to summon and hold a parliament, then the same should be summoned and held; *and therein [*113] the said acts so certified, and no other, should be proposed, received, or rejected(f). But as this precluded any law from being proposed, but such as was preconceived before the parliament was in being, which occasioned many inconveniences and made frequent dissolutions necessary, it was provided by the statute of Philip and Mary before cited (g), that any new propositions might be certified to England in the usual forms, even after the summons and during the session of parliament. By this means, however, there was nothing left to the parliament in Ireland, but a bare negative or power of rejecting, not of proposing or altering any law. The usage, however, afterwards was that bills might be framed in either house, under the denomination of "heads for a bill or bills;" and in that shape offered to the consideration of the lord lieutenant and privy council: who upon such parliamentary intimation, or otherwise upon the application of private persons, received and transmitted such heads, or rejected them without any transmission, to England. And with regard to Poynings' law in particular, it could not have been repealed or suspended, unless the bill for that purpose, before being certified to England, had been approved by both the houses(h). But the Irish nation, being excluded from the benefit of the English statutes, were deprived of many good and profitable laws, made for the improvement of the common law: and, the measure of justice in both kingdoms becoming thence no longer uniform, it was therefore enacted by another of Poynings' laws(i), that all acts of parliament, before made in England, should be of force within the realm of Ireland(k). But, by the same rule, that laws made in England, between king John's time and Poynings' law were not, with some peculiar [*114] exceptions(7), *binding in Ireland, it follows that no acts of the English parliament made since the 10 Hen. 7 now bind the people of Ireland, unless specially named or included under general words(m). And on the other hand it is equally clear, that where Ireland is particularly named, or is included under general words, it is bound by such acts of parliament. For this follows from the very nature and constitution of a dependent state: dependence being very little else, but an obligation to conform to the will or law of that superior person or state, upon which the inferior depends. The I., had been brought to England to be tried in the King's Bench at Westminster, by a Middlesex jury, and the question was whether the prisoner was ousted of his trial by his peers in Ireland by force of the statute 35 Hen. 8, c. 2. The court overruled the pris oner's plea, which decision was approved of by a resolution of the two houses of Parlia ment. Lord Maguire was, therefore, found guilty, and executed as a traitor. See also Campbell v. Hall, Cowp. 210. (m) 12 Rep. 112. original and true ground of this superiority, in the present case, is what we usually call, though somewhat improperly, the right of conquest: a right allowed by the law of nations, if not by that of nature: but which in reason and civil policy, can mean nothing more, than that, in order to put an end to hostilities, a compact is either expressly or tacitly made between the conqueror and the conquered, that if they will acknowledge the victor for their master, he will treat them for the future as subjects, and not as enemies(n). But this state of dependence being almost forgotten, and ready to be disputed by the Irish nation, it became necessary some years ago to declare how that matter really stood: and therefore by stat. 6 Geo. 1, c. 5, it is declared, that the kingdom of Ireland is and ought to be *subordinate to, and dependent upon, the imperial crown of Great Britain, as being inseparably united [*115] thereto; and that the king's majesty, with the consent of the lords and commons of Great Britain in parliament, has power to make laws to bind the people of Ireland. By two statutes, the 39 & 40 Geo. 3, c. 67, and the Irish Act, 40 Geo. 3, c. 38, the legislative union of England and Ireland was effected, the fundamental articles upon which it is based being as under: 1. That the kingdoms of Great Britain and Ireland shall on the first day of January, 1801, and for ever after, be united into one kingdom, by the name of the United Kingdom of Great Britain and Ireland. 2. That the succession to the imperial 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 stood before limited. 3. That the said United Kingdom shall be represented in one and the same parliament, to be styled, "The Parliament of the United Kingdom of Great Britain and Ireland." 4. That four lords spiritual of Ireland, by rotation of sessions, and twentyeight lords temporal of Ireland, elected for life by the peers of Ireland, shall sit in the House of Lords; and certain commoners (the number of whom is now such as hereinafter specified) shall sit and vote in the House of Commons on the part of Ireland. 5. That the churches of England and Ireland be united into one protestant episcopal church, to be called, "the United Church of England and Ireland," that the doctrine, worship, discipline, and government of this united church shall be and remain the same as already established in England; that the continuance and preservation of the united church so established shall be deemed an essential and fundamental part of the union; and that in like manner the church of Scotland shall remain the *same as established by law, and by the acts of union of England and Scotland. [ *116] 6. That the subjects of Great Britain and Ireland shall be entitled to the same rights and privileges in trade and navigation, and also all treaties with foreign powers. That all prohibitions and bounties upon the importation of merchandize from one country to the other shall cease: but that the importation of certain articles therein enumerated shall be subject to the duties specified in the act. 7. That the sinking funds, and the interest of the national debt of each country shall be defrayed by each separately; and that Great Britain and Ire (n) Puff. L. of N. viii. 6, 24. land shall contribute according to a certain proportion towards the public expenditure, subject to future regulation. 8. That all the laws and courts of each kingdom shall remain as by law then established, subject to alterations by the united parliament; but that all writs of error and appeals shall be decided by the House of Lords of the United Kingdom, except appeals from the Court of Admiralty in Ireland; and that all existing laws contrary to these articles be repealed. Thus was the union between England and Ireland effected, a union which may be pronounced indispensable to the well-being of these adjacent islands, and which, though sometimes jeopardized by rebellion, has hitherto endured. With regard to some other adjacent islands which are subject to the crown of Great Britain, little need be said; the Isles of Portland and of Thanet are comprised respectively within the neighbouring counties of Dorset and of Kent, whilst the Isle of Wight is (except for purposes of parliamentary representation (o)) a portion of the county of Hants, all such are to be looked upon as annexed to the mother island, and as part of the kingdom of *England(p). But there are others which require a more particular consideration. The Isles of Wight, Portland, Thanet, &c. Isle of Man. [ *117] And, first, the Isle of Man is a distinct territory from England, and is not governed by our laws: neither does any act of parliament extend to it, unless it be particularly named therein; and then an act of parliament is binding there(g). It was formerly a subordinate feudatory kingdom, subject to the kings of Norway; then to king John and Henry III. of England; afterwards to the kings of Scotland; and then again to the crown of England: and at length we find king Henry IV. claiming the island by right of conquest, and disposing of it to the earl of Northumberland; upon whose attainder it was granted (by the name of the lordship of Man) to Sir John de Stanley by letters patent 7 Hen. 4 (~). In his lineal descendants it continued for eight generations, till the death of Fernando earl of Derby, A. D. 1594: when a controversy arose concerning the inheritance thereof, between his daughters and William his surviving brother; upon which, and a doubt that was started concerning the validity of the original patent (s), the island was seized into the queen's hands, and afterwards various grants were made of it by king James I.: all which being expired or surrendered, it was granted afresh in 7 Jac. 1 to William earl of Derby, and the heirs male of his body, with remainder to his heirs general; which grant was the next year confirmed by act of parliament, with a restraint of the power of alienation by the said earl and his issue male. On the death of James earl of Derby, A. D. 1735, the male line of earl William failing, the duke of Atholl succeeded to the island as heir general by a female branch. In the mean time, though the title of king had long been disused, the earls of Derby, as lords of Man, had main[ *118] tained a sort of royal authority therein; by assenting to or *dissenting from laws, and by exercising an appellate jurisdiction from which an appeal lay to the king of Great Britain in council (t). The separate existence, however, of this little subordinate royalty having been found inconvenient for the purposes of public justice, and for the revenue (the island of Man afford (0) 2 & 3 Wm. 4, c. 45, s. 16. (p) 4 Inst. 287; Com. Dig. Navigation F. 5. (7) 4 Inst. 284; 2 And. 116. (r) Selden, Tit. Hon. 1. 3. (8) Camden, Eliz. A. D. 1594. |