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, (y) that all acts of parliament, before made in England, should be of force within the realm of Ireland. (2) But, by the same rule, that no laws made in England, between king John's time and Poynings' law were then binding in Ireland, it follows that no acts of the Engglish parliament made since the 10 Hen. VII. do now bind the people of Ireland, unless specially named or included under general words. (a) And on the other hand it is equally clear, that where Ireland is particularly named, or is included under general words, they are bound by such acts of parliament. For this follows from the very nature and constitution of a dependent state: dependance 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 original and true ground of this superiority, in the

y cap 22.

z 4 Inst. 351.

a 12 Rep. 112.

proceedings of the neighbouring kingdoms of Scotland and Ireland furnish strong arguments from analogy, when difficult questions arise respecting the English constitution, and they are sometimes irrefragible evidence of ancient principles which were once common to them all.

Lord Montinorres observes upon the statute referred to by the learned judge, that to repeal Poynings' law it required the consent of the greater number of the lords and commons, which, if it meant any thing, must signify a majority not of those who happened to be present, but of the whole number summoned to parliament; and that the requisition in that sense was strictly complied with in 1782, when Poynings' law was repealed. 1 Vol. p. 53.

I shall here take the liberty to subjoin an extract from what Lord Montmorres calls "a short view of the former and of the present method of passing laws and of holding parliaments in Ireland," as it contains a clearer and more authentic account than I could elsewhere collect: "Before a parliament was held, it was expedient, antecedent to one thousand seven hundred and eighty-two, that the lord lieutenant and council should send over an important bill as a reason for summoning that assembly. This always created violent disputes, and it was constantly rejected as a money bill, which originated in the council, was contrary to a known maxim, that the commons hold the purse of the nation; and as all grants originate from them, since, in early times, they were used to consult with their constituents upon the mode, duration, and quantum of the supply.

"Propositions for laws, or heads of bills, as they were called, originated indifferently in either house. After two readings and a committal, they were sent by the council to England, and were submitted, usually by the English privy council, to the attorney and solicitor general; and from thence they were returned to the council of Ireland, from whence they were sent to the commons, if they originated there, (if not, to the lords,) and after three readings they were sent up to the house of lords, where they went through the same stages; and then the lord lieutenant gave the royal assent in the same form which is observed in Great Britain.

"In all these stages in England and Ireland, it is to be remembered, that any bill was liable to be rejected, amended, or altered; but that when they had passed the great seal of England, no alteration could be made by the Irish parliament.

"At present, by the chief baron Yelverton's law, it is not necessary for the council to certify a bill under the great seal of Ireland, as a reason for summoning a parliament, but it is ordered to be convoked by proclamation from the crown, as it is summoned in England.

"Touching bills, they now originate in either house, and go from one to the other, as they do in England; after which they are deposited in the lords' office, when the clerk of the crown takes a copy of them, and this parchment is attested to be a true copy, by the great seal of Ireland on the left side of the instrument. Thus they are sent to England by the Irish council, and if they are approved of by the king, this transmiss, or copy, comes back with the great seal of England on the right side, with a commission to the lord lieutenant to give the royal assent. All bills, except money bills, remain in the lords' office; but bills of supply are sent back to the house of commons to be presented by the speaker at the bar of the lords for the royal assent. Hence it is manifest, that no alteration can now be made in bills, except in parliament, as the record, or original roll, remains in the lords' office till it obtains the royal assent.

"Of the rejection of bills, or not returning them from England, it is said there are few instances of such a refusal by the crown since one thousand seven hundred and eighty-two: though, doubtless, the royal negative in both kingdoms is as clear a privilege as any other prerogative." 1 Vol. 57. Christian.

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 of 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. (b)

But this state of dependance 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. I. c. 5. it is declared, that the kingdom of Ireland ought to be subordinate to, and dependent upon, the imperial crown of Great Britain, as be- [104] ing inseparably united thereto; and that the king's majesty, with the consent of the lords and commons of Great Britain in parliament, hath power to make laws to bind the people of Ireland. 16

Thus we see how extensively the laws of Ireland communicate with those of England; and indeed such communication is highly necessary, as the ultimate resort from the courts of justice in Ireland is, as in Wales, to those in England: a writ of error (in the nature of an appeal) lying from the king's bench in Ireland to the king's bench in England, (c) as the appeal from the chancery in Ireland lies immediately to the house of lords here: it being expressly declared, by the same statute, 6 Geo. I. c. 5. that the peers of Ireland have no jurisdiction to affirm or reverse any judgments or decrees whatsoever. The propriety and even necessity, in all inferior dominions, of this constitution, "that, though justice be in gene"ral administered by courts of their own, yet that the appeal in the last "resort ought to be to the courts of the superior state," is founded upon these two reasons. 1. Because otherwise the law, appointed or permitted to such inferior dominion, might be insensibly changed within itself, without the assent of the superior. 2. Because otherwise judgments might be given to the disadvantage or diminution of the superiority; or to make the dependance to be only of the person of the king, and not of the crown of England. (d) 17

17

b Puff. L. of N. viii. 6. 24.

c This was law in the time of Hen. VIII.; as appears by the ancient book, entitled divzysity of courts, c. bank le roy. d Vaugh 402.

(16) See 8 State Trials, 343.

(17) The union, which combined the representation of Ireland with the parliament of Great Britain, was effected in A. D. 1800. The following is extracted from the 39 & 40 Geo. III. c. 67. In pursuance of his majesty's most gracious recommendation to the two houses of parliament in Great Britain and Ireland respectively, to consider of such measures as might best tend to strengthen and consolidate the connexion between the two kingdoms, the two houses of parliainent in each country resolved, that, in order to promote and secure the essential interests of Great Britain and Ireland, and to consolidate the strength, power, and resources of the British empire, it was adviseable to concur in such measures as should best tend to unite the two kingdoms into one kingdom, on such terms and conditions as should be established by the acts of the respective parliaments in the two countries. And, in furtherance of that resolution, the two houses of each parliament agreed upon eight articles, which, by an address of the respective houses of parliament, were laid before his majesty for his consideration; and his majesty having approved of the same, and having recommended it to his parliaments in Great Britain and Ireland to give full effect to them, they were ratified by an act passed in the parliament of Great Britain on the 2d of July 1800.

Art. I. 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 The United Kingdom of Great Britain and Ireland; and that the royal style and titles of the imperial crown, and the ensigns, armorial flags, and banners, shall be such as should be appointed by his majesty's royal procla 10

mation.

VOL. I.

[105]

With regard to the other adjacent islands which are subject to the crown of Great Britain, some of them (as the isle of Wight, of Port

Art. II. That the succession to the imperial crown shall continue settled in the same manner as the succession to the crown of Great Britain and Ireland stood before limited.

Art. III. That there shall be one parliament, styled, The Parliament of the United Kingdom of Great Britain and Ireland.

Art. IV. That four lords spiritual of Ireland, by rotation of sessions, and 28 lords temporal of Ireland, elected for life by the peers of Ireland, shall'sit in the house of lords; and 100 commoners, two for each county, two for the city of Dublin, and two for the city of Cork, one for Trinity College, and one for each of the 31 most considerable cities and boroughs, shall be the number to sit in the house of commons on the part of Ireland.

That questions respecting the rotation or election of the spiritual or temporal peers shall be decided by the house of lords, and in the case of an equality of votes in the election of a temporal peer, the clert: of the parliament shall determine the election by drawing one of the names from a glass. That a peer of Ireland, not elected one of the 28, may sit in the house of commons; but whilst he continues a member of the house of commons, he shall not be entitled to the privilege of peerage, nor capable of being elected one of the 28, nor of voting at such election, and he shall be sued and indicted for any offence as a commoner.

That as often as three of the peerages of Ireland, existing at the time of the union, shall become extinct, the king may create one peer of Ireland; and when the peers of Ireland are reduced to 100 by extinction, or otherwise, exclusive of those who shall hold any peerage of Great Britain subsisting at the time of the union, or created of the united kingdom since the union, the king may then create one peer of Ireland for every peerage that becomes extinct, or as often as any one of them is created a peer of the united kingdom, so that the king may always keep up the number of 100 Irish peers, over and above those who have an hereditary seat in the house of lords.

That questions respecting the election of the members of the house of commons returned for Ireland, shall be tried in the same manner, as questions respecting the elections for places in Great Britain, subject to such particular regulations as the parliament afterwards shall deem expedient. That the qualifications by property of the representatives in Ireland, shall be the same respectively as those for counties, cities, and boroughs in England, unless some other provision be afterwards made.

Until an act shall be passed in the parliament of the united kingdom, providing in what cases persons holding offices and places of profit under the crown of Ireland, shall be incapable of sitting in the house of commons, not more than 20 such persons shall be capable of sitting; and if more than 20 such persons shall be returned from Ireland, then the seats of those above 20 shall be vacated, who have last accepted their offices or places.

That all the lords of parliament on the part of Ireland, spiritual and temporal, sitting in the house of lords, shall have the same rights and privileges respectively as the peers of Great Britain; and that all the lords spiritual and temporal of Ireland shall have rank and precedency next and immediately after all the persons holding peerages of the like order and degree in Great Bri tain, subsisting at the time of the union; and that all peerages hereafter created of Ireland, or of the united kingdom, of the same degree, shall have precedency according to the dates of their creations; and that all the peers of Ireland, except those who are members of the house of commons, shall have all the privileges of peers as fully as the peers of Great Britain, the right and privileges of sitting in the house of lords, and upon the trial of peers, only excepted.

Art. V. 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 and worship shall be the same; and that the continuance and preservation of the united church as the estab lished church of England and Ireland, 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 is now established by law, and by the acts of union of England and Scotland.

Art. VI. The subjects of Great Britain and Ireland shall be entitled to the same privileges with regard to trade and navigation, and also in respect of all treaties with foreign powers.

That all prohibitions and bounties upon the importation of merchandise from one country to the other shall cease.

But that the importation of certain articles therein enumerated shall be subject to such countervailing duties as are specified in the act.

Art. VII. The sinking funds, and the interest of the national debt, of each country, shall be defrayed by each separately. And, for the space of 20 years after the union, the contribution of Great Britain and Ireland towards the public expenditure in each year, shall be in the proportion of fifteen to two, subject to future regulations.

Art. VIII. All the laws and courts of each kingdom shall remain the same as they are now es tablished, subject to such alterations by the united parliament as circumstances may require : but that all writs of error and appeal shall be decided by the house of lords of the united kingdom, except appeals from the court of admiralty in Ireland, which shall be decided by a court of delegates appointed by the court of chancery in Ireland.

The statute then recites an act passed in the parliament of Ireland, by which the rotation of the four spiritual lords for each sessions is fixed; and it also directs the time and mode of electing the

land, of Thanet, &c.) are comprized within some neighbouring county, and are therefore to be looked upon as annexed to the mother island, and part of the kingdom of England. 13 But there are others which require a more particular consideration.

18

And, first, the isle of Man is a distinct territory from England, and is not governed by our laws: neither doth any act of parliament extend to it, unless it be particularly named therein; and then an act of parliament is binding there. (e) 19 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 Henry IV. (f) in his lineal descendants it continued for eight generations, till the death of Ferdinando 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, (g) the island was seized into the queen's hands, and afterwards various grants were made of it by king James the First; all which being expired or surrendered, it was granted afresh in 7 Jac. I. 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 maintained a sort of royal authority therein; by assente 4 Inst. 284. 2 And. 116. (Com. Dig. Navigation, F. 2.) fSelden, tit. bon. 1. 3.

g Camden, Eliz. A. D. 1594.

28 temporal peers for life; and it provides that 64 county members shall be elected, two for each county, two for the city of Dublin, two for the city of Cork, one for Trinity College, Dublin, and one for each of 31 cities and towns which are there specified, which are the only places in Ireland to be represented in future. One of the two members of each of those places was chosen by lot, unless the other withdrew his name to sit in the first parliament, but at the next elections, one member only was to be returned. Christian.

An Irish peer is now entitled to every privilege, except that of sitting in the house of lords; unless he chooses to waive it, in order to sit in the house of commons; and therefore Irish peers, who are not members of the house of commons, are entitled to the letter missive from the court of chancery, when a bill is filed against them. 8 Ves. Jun. 601. They also, like Scotch peers, are privileged from arrest.

Since the union, and under the first article, the style of the king in legal proceedings is thus: "In the-year of the reign of our sovereign Lord George the Fourth, by the grace of God of the United Kingdom of Great Britain and Ireland King, Defender of the Faith."-The great seal of England continued to bear that character till the statute of union with Scotland, when the great seal of Great Britain was substituted, and since this union with Ireland, the great seal of the United Kingdom of Great Britain and Ireland is, by consequence of law, become the clavis régni; and those instruments which formerly derived their authority from the great seal of England, must now pass under the great seal of the United Kingdom. If however it be untechnically alleged in pleading, that a commission of bankrupt issued under the great seal of Great Britain, though it appear to have been under the seal of the United Kingdom, this is no variance. The King v. Bullock. 1 Taunt. 71. Since the union a judgment in a court of record in Ireland is to be considered in England as a record. 5 East, 473. Chitty.

(18) These are subject to the laws of England. The isle of Wight is part of the county of Hants. Com. Dig. Navigation, F. 5. 4 Inst. 287. Cal. 21.

(19) Is not subject to the laws of England. As to the law, &c. affecting this island in general, see Com. Dig. Navigation, F. 3.

ing or dissenting to laws, and exercising an appellate jurisdiction. [106] Yet, though no English writ, or process from the courts of Westminster, was of any authority in Man, an appeal lay from a decree of the lord of the island to the king of Great Britain in council. (h) But the distinct jurisdiction of this little subordinate royalty being found inconveninent for the purposes of public justice, and for the revenue (it affording a commodious asylum for debtors, outlaws, and smugglers), authority was given to the treasury by statute 12 Geo. I. c. 28. to purchase the interest of the then proprietors for the use of the crown: which purchase was at length completed in the year 1765, and confirmed by statutes 5. Geo. III. c. 26. and 39. 20 whereby the whole island and all its dependencies so granted as aforesaid (except the landed property of the Atholl family, their manerial rights and emoluments, and the patronage of the bishoprick (i) and other ecclesiastical benefices), are unalienably vested in the crown, and subjected to the regulations of the British excise and

customs.

The islands of Jersey, Guernsey, Sark, Alderney, and their appendages, were parcel of the duchy of Normandy, and were united to the crown of England by the first princes of the Norman line. They are governed by their own laws, which are for the most part the ducal customs of Normandy, being collected in an ancient book of very great authority, entitled, le grand coustumier. The king's writ, or process from the courts of Westminster, is there of no force; but his commission is. They are not bound by common acts of our parliaments, unless particularly named. (k) All causes are originally determined by their own officers, the bailiffs and jurats of the islands; but an appeal lies from them to the king and council, in the last resort.

Besides these adjacent islands, our more distant plantations in America and elsewhere, are also in some respects subject to the English [107] laws. 22 Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desart and uncultivated, and peopling them from the mothercountry; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it hath been held, (?) that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birth-right of every subject, (m) are imme

h1 P Wms. 329.

i The bishoprick of Man or Sodor, or Sodor and Man, was formerly within the province of Canterbury, but annexed to that of York, by statute 3S Hen. VIII. 3. 31. 1 Salk. 411. 666.

k 4 Inst. 286.

in 2 P. Wins. 75. (See 1 Chitty's Commercial Law, 630.)

(20) c. 26. is called the resting act, and c. 59. the regulating act. The 45 Geo. III. c. 123, settles an annuity equal to one fourth of the revenue of customs arising within the isle of Man, to be paid to the duke of Atholl, and the heirs general of the seventh earl of Derby.

This island still affords the same protection and asylum for debtors and outlaws, as before the purchase of it by the crown of England. The revenue only has been regarded by the legisla ture in the several statutes. The internal laws of the island, with respect to debtors and outlaws, still remain unaltered. An appeal lies to the king from a judgment of a court in this island. Com. Dig. Navigation, F. 2. Chitty.

(21) See the laws of these islands, Com. Dig. Navigation, F. 3. 4.

(22) As to the regulations and law affecting them in general, see Com. Dig. Navigation, G.; and Chitty on Commercial Law, 1 vol. 631-689.