INTROD. "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 fo to be. 3. That therefore any alteration in the conftitution of either of those churches, or in the liturgy of the church of England, (unless with the confent of the respective churches, collectively or representatively given,) would be an infringement of these "fundamental and effential "conditions," and greatly endanger the union. 4. That the municipal laws of Scotland are ordained to be ftill observed in that part of the island, unless altered by parliament; and, as the parliament has not yet thought proper, except in a few inftances, to alter them, they ftill (with regard to the particulars unaltered) continue in full force. Wherefore the municipal or common laws of England are, generally fpeaking, of no force or validity in Scotland; and of confequence, in the enfuing commentaries, we shall have very little occafion to mention, any farther than fometimes by way of illuftration, the municipal laws of that part of the united kingdoms. where vefted to alter every part of it's laws, is the height of political abfurdity. The truth feems to be, that in fuch an incorporate union (which is well diftinguished by a very learned prelate from a foederate alliance, where fuch an infringement would certainly refcind the compact) the two contracting states are totally annihilated, without any power ́of a revival; and a third arifes from their conjunction, in which all the rights of fovereignty, and particularly that of legiflation, must of neceffity refide. (See Warburton's alliance. 195.) But the wanton or imprudent exertion of this right would probably raise a very alarming ferment in the minds of individuals; and therefore it is hinted above that fuch an attempt might endanger (though by no means deftrey) the union. To illuftrate this matter a little far ther: an act of parliament to repeal or aner the a of uniformity in England, But or to establish epifcopacy in Scotland, THE 1 THE town of Berwick upon Tweed was originally part of the kingdom of Scotland; and, as fuch, was for a time reduced by king Edward I. into the poffeffion of the crown of England: and, during such it's subjection, it received from that prince a charter, which (after it's subsequent ceffion by Edward Balliol, to be for ever united to the crown and realm of England) was confirmed by king Edward III, with fome additions; particularly that it should be governed by the laws and ufages 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 ftatutes 22 Edw. IV. c. 8. and 2 Jac. I. c. 28. Though therefore it hath fome local peculiarities, derived from the antient laws of Scotland, yet it is clearly part of the realm of England, being reprefented by burgeffes in the house of commons, and bound by all acts of the British parliament, whether specially named or otherwise. And therefore it was (perhaps fuperfluoufly) declared by ftatute 20 Geo. II. c. 42. that, where England only is mentioned in any act of parlia ment, the fame notwithstanding hath and fhall be deemed to comprehend the dominion of Wales and town of Berwick upon Tweed. 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 folemnly adjudged that all prerogative writs (as thofe of mandamus, prohibition, habeas corpus, certiorari, &c.) may iffue to Berwick as well as to every other of the dominions of the crown of England, and that indictments and other local matters arifing in the town of Berwick may be tried by a jury of the county of Northumberland. As to Ireland, that is still a diftinct kingdom; though a dependent fubordinate kingdom. It was only entitled the dominion or lordship of Ireland", and the king's ftile was no f Hale Hift. C. L. 183. 1 Sid. 382. Stat. 11 Geo. I. c. 4• 4 Burr. 834. 462. 2 Show. 365. Stat. Hiberniae. 14 Hen. III. ■ Cro. Jac. 543. 2 Roll. abr. 292. G 2 other other than dominus Hiberniae, lord of Ireland, till the thirtythird year of king Henry the eighth; when he affumed 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 fame kingdom, and yet differ in their mu nicipal laws; fo England and Ireland are, on the other hand, diftinct kingdoms, and yet in general agree in their laws. The inhabitants of Ireland are, for the most part, defcended from the English, who planted it as a kind of colony, after the conqueft of it by king Henry the fecond; and the laws of England were then received and sworn to by the Irish nation, affembled at the council of Lifmore. And as Ireland, thus conquered, planted, and governed, ftill continues in a state of dependence, it must neceffarily conform to, and be obliged by, fuch laws as the fuperior state thinks proper to prescribe. But AT the time of this conqueft the Irifh were governed by what they called the Brehon law, fo ftiled from the Irish name of judges, who were denominated Brehons*. king John in the twelfth year of his reign went into Ireland and carried over with him many able fages of the law; and there by his letters patent, in right of the dominion of conqueft, is faid to have ordained and established that Ireland fhould 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 averfe to conform, and ftill stuck to their Brehon law; fo 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 cuftom 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 to have been "a rule of right unwritten, but "delivered by tradition from one to another, in which often"times there appeared great fhew 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 firft and his grandfon. BUT as Ireland was a diftinct 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, fuch as, "within any of the king's do"minions." And this is particularly expreffed, and the reafon given in the year books?: "a tax granted by the parlia"ment of England shall not bind those of Ireland, because "they are not fummoned to our parliament;" and again, "Ireland hath a parliament of it's own, and maketh and "altereth laws; and our ftatutes do not bind them, because "they do not fend knights to our parliament: but their per"fons are the king's fubjects, like as the inhabitants of Ca"lais, Gafcoigne, and Guienne, while they continued un"der the king's fubjection." The general run of laws, enacted by the superior state, are fupposed to be calculated for it's own internal government, and do not extend to it's dif tant dependent countries; which, bearing no part in the legiflature, are not therefore in its ordinary and daily contemplation. But, when the fovereign legiflative power fees it neceffary to extend it's care to any of it's fubordinate dominions, and mentions them exprefsly 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 paffing ftatutes in Ireland was nearly the fame as in England, the chief governor holding P Edm. Spenfer, ibid. 4 20 Hen. VI. 3. 2 Riç. III. 12. r Yearbook 1 Hen. VII. 3. 7 Rep. 22. Calvin's cafe. G 3 parliaments parliaments at his pleasure, which enacted fuch laws as they thought propers. 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 fummoned or holden, the chief governor and council of Ireland shall certify to the king under the great feal of Ireland the confiderations and caufes thereof, and the articles of the acts propofed to be paffed therein. 2. That after the king, in his council of England, fhall have confidered, approved, or altered the faid acts or any of them, and certified them back under the great feal of England, and fhall have given licence to fummon and hold a parliament, then the fame fhall be fummoned and held; and therein the faid acts fo certified, and no other, fhall be propofed, 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 occafioned many inconveniences and made frequent diffolutions neceflary, it was provided by the ftatute of Philip and Mary before-cited, that any new propofitions might be certified to England in the ufual forms, even after the fummons and during the feffion 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 propofing or altering, any law. But the ufage now is, that bills are often framed in either house, under the denomination of "heads for a bill or bills:" and in that fhape they are offered to the confideration of the lord lieutenant and privy council: who, upon fuch parliamentary intimation, or otherwise upon the application of private perfons, receive and transmit such heads, or reject them without any tranfmiflion to England, And with regard to Poynings' law in particular, it cannot be repealed or fufpended, unless the bill for that purpose, s Irish Stat. 11 Eliz. ft. 3. c. 8. Ibid. 10 Hen. VII. c. 23. Cap. 4. expounded by 3 & 4 Ph. & M. c. 4. w 4 Inft. 353. before |