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« damental and effential 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 constitution of either of those churches, or in the liturgy of the church of England, (unless with the consent of the respective churches, collectivelyor representatively given,) would be an infringement of these “fundamental and efsential "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 confequence, in the ensuing commentaries, we shall have very little occasion to mention, any farther than sometimes by way of illuftration, the municipal laws of that part of the united kingdoms.
where vefted to alter every part of it's 07 to establish episcopacy in Scotland, laws, is the height of political absurdity. would doubtless in point of authority be The truth seems to be, that in such an sufficiently valid and binding; and, notincorporate union (which is well diftin- withitanding such an act, the union guished by a very learned prelate from a would continue unbroken. Nay, each foederate alliance, where such an in- of these measures might be fafely and fringement would certainly rescind the honourably pursued, if respectively a. compact) the two contracting states are greeable to the sentiments of the English totally annihilated, without any power church, or the kirk in Scotland. But of a revival; and a third arifes from their it should seem neither prudent, nor perconjunction, in which all the rights of haps content with good faith, to ven. sovereignty, and particularly that of le- ture upon either of those steps, by a spongillation, muit of necellity reside. (See taneous exertion of the inherent powers Warburton's alliance. 195.) But the of parliament, or at the instance of mere wanton or imprudent exertion of this individuals-So sacred indeed are the right would probably raise a very alarm- laws abovementioned (for protecting ing fermest in the minds of individuals; each church and the English liturgy) and therefore it is hinted above that such eiteemed, that in the regency acts borla an attempt might endanger (though by of 1751 and 1765 the regents are ex. no means destroy) the union.
pressly disabled from afsenting to the reTo illustrate this matter a little far- peal or alteration of either these, or the ther : an act of parliament to repeal or act of settlement. ziler the act of uniformity in Ecglund,
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 by Edward I. It's conftitution was new-modelled, and put upon an English footing by a charter of king James I: and all it's liberties, franchises, and customs, were confirmed in parliament by the statutes 22 Edw. IV. c. 8. and 2 Jac. I. c. 28. Though therefore it hath some local peculiarities, derived from the antient laws of Scotland', yet it is clearly part of the realm of England, being represented by burgesses in the house of commons, and bound by all acts of the British parliament, whether specially named or otherwise. And therefore it was (perhaps superfluously) declared by statute 20 Geo. II. C. 42. . that, where England only is mentioned in any act of parliament, the same notwithstanding hath and shall be deemed to comprehend the dominion of Wales and town of Berwick
And though certain of the king's writs of processes of the courts of Westminster do not usually run into Berwick, any more than the principality of Wales, yet it hath been solemnly adjudged that all prerogative writs (as those of mandamus, prohibition, habeas corpus, certiorari, &*c.) may issue to Berwick as well as to every other of the dominions of the crown of England, and that indictments and other local matters arising in the town of Berwick may tried by a jury of the county of Northumberland.
As to Ireland, that is still a distinct kingdom ; though a dependent subordinate kingdom. It was only entitled the dominion or lordship of Ireland", and the king's stile was no
f Hale Hift. C. L. 183. -1 Sid. 382. Stat. 11 Geo. I. c. 4. 4. Burr. 834. 462. 2 Show. 3652
Stai. Hiberniae, 14 Hen. III. & Cro. Jas. 543• 2 Roll. ab!, 292.
other than dominus Hiberniae, lord of Ireland, till the thirtythird year of king Henry the eighth; when he assumed the title of king, which is recognized by act of parliament 35 Hen. VIII. c. 3. But, as Scotland and England are now one and the same kingdom, and yet differ in their municipal laws; fo England and Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws. 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 the second; and the laws of England were then received and sworn to by the Irish nation, assembled at the council of Lismore i. And as Ireland, thus conquered, planted, and governed, still continues in a state of dependence, it must necessarily conform to, and be obliged by, such laws as the superior state thinks proper to prescribe.
At the time of this conquest the Irish were governed by what they called the Brehon law, so stiled from the Irish name of judges, who were denominated Brchonsk. 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', which letters patent fir Edward Coke" apprehends to have been there confirmed in parliament. But to this ordinance many of the Irish were averse to conform, and still stuck to their Brehon law; so that both Henry the third" and Edward the first were obliged to renew the injunction; and at length in a parliament holden at Kilkenny, 40 Edw. 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
i Pryn. on 4 Inft. 249.
• A. R. 5.-pro eo quod leges quibus 4 Inst. 358. Edm. Spenser's state utuntur Ilyi ernici Deo deteftabiles exiftunt, of Ireland. p. 1513. edit. Hughes. et omni juri difonant, adeo quod leges cene.
| Vaugh. 294. 2 Pryn. Rec. 85. Seri non debeant ;--nobis et confilio noftra 7 Rep. 23.
fatis videtur expediens, eisdem utendas m 1 Inft. 141.
Gereedere leges Anglicanas, 3 Pryn. Reo, . A. R. 30 Rym. Fed. 442. 1218.
the Laws of ENGLAND. ΙοΙ , times. And yet, even in the reign of queen Elizabeth, the wild natives still kept and preserved their Brehon law; which is described P to have been “a rule of right unwritten, but “ delivered by tradition from one to another, in which often« times there appeared great shew 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 is alone ascribed to it, by the laws before-cited of Edward the first and his grandfon.
But as Ireland was a distinct dominion, and had parliaments of it's 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 the English parliament, since the twelfth of king John, extended into that kingdom ; unless it were specially named, or included under general words, such aș, “ within any of the king's dó“minions.” And this is particularly expressed, and the reason given in the year books9 : “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 it's own, and maketh and
altereth laws; and our statutes do not bind them, because “they do not send knights to our parliament: but their per“ sons are the king's subjects, like as the inhabitants of Ca“ lais, Gascoigne, and Guienne, while they continued un“ der the king's subjection.” The general run of laws, enacted by the superior state, are supposed to be calculated for it's own internal government, and do not extend to it's diftant dependent countries; which, bearing no part in the legislature, are not therefore in its ordinary and daily contemplation. But, when the sovereign legislative power sees it necessary to extend it's care to any of it's 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 it's laws'.
The original method of passing statutes in Ireland was pearly the same as in England, the chief governor holding p Edm. Spenser, ibid.
s Yearbook i Hen. VII. 3• 7 Rep. 9 20 Hen. VI. 3. 2. Ric. III. 12. 22. Calvin's case. G3
parliaments at his pleasure, which enacted such laws as they thought proper'. But an ill use being made of this liberty, particularly by lord Gormanstown, deputy-lieutenant in the reign of Edward IV', a set of statutes were there enacted in the 10 Hen. VII. (fir Edward Poynings being then lord deputy, whence they are called Poynings' laws) one of which", in order to restrain the power as well of the deputy as the Irish parliament, provides, 1. That, before any parliament be summoned or holden, the chief governor and council of Ireland shall 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 confidered, approved, or altered the said acts or any of them, and certified them back under the great seal of England, and shall have given licence to summon and hold a parliament, then the same shall be summoned and held; and therein the said acts fo cerțified, and no other, shall be proposed, received, or rejected". But as this precluded any law from being proposed, but such as were pre-conceived 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, 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, rot of proposing or altering, any law. But the usage now is, that bills are often framed in either house, under the denomination of "heads for a bill or bills:” and in that shape they are offered to the consideration of the lord lieutenant and privy council: who, upon such parliamentary intimation, or otherwise upon the application of private persons, receive and transmit such heads, or reject them without any transmission to England. And with regard to Poynings' law in particular, it cannot be repealed or suspended, unless the bill for that purpose,
s Irish Stat. 11 Eliz, ft. 3. c. 8. i Ibid. 10 Hen. VII. c, 23.
• Cap. 4. expounded by 3 & 4 Ph. &
w 4 lpit. 353
M. 6. 4•