many diversities, subsisting between the two laws at present, may be well enough accounted for, from a diversity of practice in two large and uncommunicating jurisdictions, and from the acts of two distinct and independent parliaments, which have in many points altered and abrogated the old common law of both kingdoms. *However, Sir Edward Coke, and the politicians of that time, `con[*96] ceived great difficulties in carrying on the projected union; but these were at length overcome, and the great work was happily effected in 1707, 6 Anne; when twenty-five articles of union were agreed to by the parliaments of both nations; the purport of the most considerable being as follows:

1. That on the first of May, 1707, and for ever after, the kingdoms of England and Scotland shall be united into one kingdom, by the name of Great Britain. 2. The succession to the monarchy of Great Britain shall be the same as was before settled with regard to that of England.

3. The united kingdom shall be represented by one parliament.

4. There shall be a communication of all rights and privileges between the subjects of both kingdoms, except where it is otherwise agreed.

9. When England raises 2,000,0007. by a land tax, Scotland shall raise 48,000%. 16, 17. The standards of the coin, of weights, and of measures, shall be reduced to those of England, throughout the united kingdoms.

18. The laws relating to trade, customs, and the excise, shall be the same in Scotland as in England. But all the other laws of Scotland shall remain in force; though alterable by the parliament of Great Britain. Yet with this caution that laws relating to public policy are alterable at the discretion of the parliament: laws relating to private right are not to be altered but for the evident utility of the people of Scotland.

[*97]

*22. Sixteen peers are to be chosen to represent the peerage of Scotland in parliament, and forty-five members to sit in the house of commons. 23. The sixteen peers of Scotland shall have all privileges of parliament; and peers of Scotland shall be peers of Great Britain, and rank next after those of the same degree at the time of the union, and shall have all privileges of peers, except sitting in the house of lords, and voting on the trial of a peer. (3)

all

(3) [Since the union, the following orders have been made in the house of lords respecting the peerage of Scotland. Queen Anne, in the seventh year of her reign, had created James duke of Queensbury, duke of Dover, with remainder in tail to his second son, then earl of Solway, in Scotland; and upon the 21st of January, 1708–9, it was resolved by the lords, that a peer of Scotland claiming to sit in the house of peers by virtue of a patent passed under the great seal of Great Britain, and who now sits in the parliament of Great Britain, had no right to vote in the election of the sixteen peers who are to represent the peers of Scotland in parliament.

The duke of Hamilton having been created duke of Brandon, it was resolved by the lords on the 20th of December, 1711, that no patent of honor granted to any peer of Great Britain, who was a peer of Scotland at the time of the union, should entitle him to sit in parliament. Notwithstanding this resolution gave great offence to the Scotch peerage, and to the queen and her ministry, yet a few years afterwards, when the duke of Dover died, leaving the earl of Solway, the next in remainder, an infant, who, upon his coming of age, petitioued the king for a writ of summons as duke of Dover; the question was again argued on the 15th December, 1719, and the claim as before disallowed. See the argument, 1 P. Wis. 582. But in 1782, the duke of Hamilton claimed to sit as duke of Brandon, and the question being referred to the judges, they were unanimously of opinion, that the peers of Scotland are not disabled from receiving, subsequently to the union, a patent of peerage of Great Britain, with all the privileges incident thereto. Upon which the lords certified to the king, that the writ of summmons ought to be allowed to the duke of Brandon, who now enjoys a seat as a British peer. (6th June, 1782.) But there never was any objection to an English peer's taking a Scotch peerage by descent; and therefore, before the last decision, when it was wished to confer an English title upon a noble family of Scotland, the eldest son of the Scotch peer was create 1, in his father's life-time, an English peer, and the creation was not affected by the annexation by inheritance of the Scotch peerage. On the 13th February, 1787, it was resolved, that the earl of Abercorn and the duke of Queensbury, who had been chosen of the number of the sixteen peers of Scotland, having been created peers of Great Britain, thereby ceased to sit in that house as representatives of the peerage. See the argument in Ann. Reg. for 1787, p. 95. At the election occasioned by the last resolution, the dukes of Queensbury and Gordon had

These are the principal of the twenty-five articles of union, which are ratified and confirmed by statute 5 Ann. c. 8, in which statute there are also two acts of parliament recited; the one of Scotland, whereby the church of Scotland, and also the four universities of that kingdom, are established forever, and all succeeding sovereigns are to take an oath inviolably to maintain the same; the other of England, 5 Ann. c. 6, whereby the acts of uniformity of 13 Eliz. and 13 Car. II, (except as the same had been altered by parliament at that time.) and all other acts then in force for the preservation of the church of England, are declared perpetual; and it is stipulated, that every subsequent king and queen shall take an oath inviolably to maintain the same within England, Ireland, Wales, and the town of Berwick upon Tweed. And it is enacted, that these two acts "shall for ever be observed as fundamental and essential conditions of the union."

Upon these articles and act of union, it is to be observed, 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them again, except the mutual consent of both, or the successful resistance of either, upon apprehending an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be "funda mental and essential conditions of the union." (e) 2. That whatever else may be deemed "fundamental *and essential conditions," the preservation of [*98] 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, collectively or representatively given,) would be an infringement of these "fundamental and essential 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, (4) 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; (5) and of consequence, in the ensuing Commen

(e) It may justly be doubted whether even such an infringement (though a manifest breach of good faith, unless done upon the most pressing necessity) would of itself dissolve the union; for the bare idea of a State, without a power somewhere vested to alter every part of its lows, is the height of political absurdity. The truth seems to be, that in such an incorporate union (which is well distinguished by a very learned prelate from a fœderate alliance, where such an infringement would certainly rescind the compact) the two contracting states are totally annihilated, without any power of a revival; and a third arises from their conjunction, in which all the rights of sovereignty, and particularly that of legislation, must of necessity reside. See Wa burton'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 such an attempt might endanger (though by no means destroy) the union.

To illustrate this matter a little farther, an act of parliament to repeal or alter the act of uniformity in England, or to establish episcopacy in Scotland, would doubtless in point of authority be sufficiently valid and binding; and notwithstanding such an act, the union would continue unbroken. Nay, each of these measures might be safely and honorably pursued, if respectively agreeable to the sentiments of the English church, or the kirk in Scotland. But it should seem neither prudent, nor perhaps consistent with good faith, to venture upon either of those steps, by a spontaneous exertion of the inherent powers of parliament, or at the instance of mere individuals. So sacred indeed are the laws above mentioned (for protecting each church and the English liturgy) esteemed, that in the regency acts both of 1751 and 1765 the regents are expressly disabled from assenting to the repeal or alteration of either these or the act of settlement.

given their votes as peers of Scotland, contrary to the resolution of 1709, in consequence of which it was resolved, 18th May, 1787, that a copy of that resolution should be transmitted to the lord register of Scotland, as a rule for his future proceeding in cases of election.

The duke of Queensbury and marquis of Abercorn had tendered their votes at the last general election, and their votes were rejected; but notwithstanding the former resolutions, on 23d May, 1793, it was resolved, that, if duly tendered, they ought to have been counted.]

There were, in 1881, no less than forty Scottish peers sitting in the house of lords by virtue of British peerages created in their favor since the union of the two kingdoms. May, Const. Hist. c. 5.

(4) [Acts of parliament passed since the union extend in general to Scotland; but where a statute is only applicable to England, and where Scotland is not intended to be included, the bill expressly provides that it does not extend to Scotland. See 3 Burr. 853.]

(5) See the case of the King v. Cowle, in 2 Burr. 834, where the constitution of the town of Berwick upon Tweed, and indeed the prerogative as to dominion extra Great Britain, is very elaborately discussed.]

tarics, we shall have very little occasion to mention, any further than sometimes by way of illustration, the municipal laws of that part of the united kingdoms. The town of Berwick upon Tweed was originally part of the kingdom of [*99] Scotland; and, as such, was for a time reduced *by King Edward I into the possession of the crown of England: and during such, its subjection, it received from that prince a charter, which (after its 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 its 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 Edward IV, c. 8, and 2 Jac. I, c. 28. Though, therefore, it hath some local pecularities, derived from the ancient laws of Scotland, (f) 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 upon Tweed. And though certain of the king's writs or 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 (g) 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 be tried by a jury of the county of Northumberland. (6)

As to Ireland, that is still a distinct kingdom, though a dependent subordinate kingdom. It was only entitled the dominion or lordship of Ireland, (h) and the king's style was no other than dominus Hiberniæ, lord of Ireland, till the thirty-third year of King Henry the Eighth, when he assumed (7) the *title of king, which is recognized by act parliament 35 Hen. VIII, [*100] c. 3. But, as Scotland and England are now one and the same kingdom, and yet differ in their municipal laws, so 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. (1) 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 styled from the Irish name of judges, who were denominated Brehons. (k) 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: (7) which letters patent Sir Edward Coke (m) apprehends to have been there con

(f) Hale, Hist. C. L. 183. 1 Sid. 382, 462. 2 Show. 365. (g) Cro. Jac. 543. 2 Roll. Abr. 292. Stat. 11 Geo. I, c. 4. Burr. 834. (h) Stat. Hiberniæ, 14 Hen. III. (i) Pryn, on 4 Inst. 249. (k) 4 Inst. 358. Edm. Spenser's State of Ireland, p. 1513, edit. Hughes. (1) Vaugh. 294. 2 Pryn. Rec. 85. 7 Rep. 23. (m) 1 Inst. 141.

Since these commentaries were written, a number of acts of parliament have been passed, making alterations in the mode of administering justice in Scotland, but it is not deemed important to enumerate them here.

(7) [The title of king was conferred upon him and his successors; and it was made treason for any inhabitant of Ireland to deny it, by 33 Hen. VIII, c. 1, Irish Stat.]

firmed 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 (2) and Edward the First (0) 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 times. And yet, even in the reign of Queen Elizabeth, the *wild natives still kept and preserved their Brehon law, which is described (p) [*101 ] to have been "a rule of right unwritten, but delivered by tradition from one to another, in which oftentimes there appeared great shew of equity in determinjng 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 grandson.

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 the English parliament, since the twelfth of King John, extended 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: (7) "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, (8) because they do not send knights to our parliament, 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." The general run of laws, enacted by the superior state, are supposed to be calculated for its own internal government, and do not extend to its distant 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 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. (r) *The original method of passing statutes in Ireland was nearly the same as in England, the chief governor holding parliaments at his pleasure, [*102] which enacted such laws as they thought proper. (s) But an ill use being made of this liberty, particularly by lord Gormanstown, deputy-lieutenant in the reign of Edward IV, (t) a set of statutes were then enacted in the 10 Hen. VII, (Sir Edward Poynings being then lord deputy, whence they are called Poynings' laws) one of which, (u) 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 considered, approved, or altered the said acts or any of them, and certified them back under the great seal of England; and shall have given license to summon and hold a parliament, then the same shall be summoned and held; and therein the said acts so certified, and no other, shall be proposed, received, or rejected. (w) 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

(n) A. R. 30. 1 Rym. Feod. 412.

(0) A. R 5.-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 Anglicans. 3 Pryn. Rec. 1218. (p) Edm. Spenser, ibid. (g) 20 Hen. VI. S. 2 Ric. III, 12. (r) Yearbook Hen. VII, 3. 7. Rep. 22. Calvin's case. (8) Irish stat. 11 Eliz. st. 3. c. 8. (t) Ibid. 10 Hen. VII, c. 23. (u) Cap. 4. expounded by 3 and 4 Ph. and M. c. 4.

(w) 4 Inst. 353.

(8) [Lord Coke, citing this in Calvin's case, 7 Co., 22, inserts this parenthesis, viz.: "(which is to be understood unless specially named.)"]

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. 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 [*103] regard to Poynings' law in particular, it cannot be repealed or suspended, unless the bill for that purpose, before it be certified to England, be approved by both the houses. (x)

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 English 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: 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 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 laws 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. (b)

*But this state of dependence being almost forgotten and ready [*104] to be disputed by the Irish nation, it became necessary some years ago to

declare how that matter really stood: and therefore by statute 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 being inseparably unitedthereto; 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. (9)

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;

(x) Irish stat. 11 Eliz. st. 3. c. 38. (b) Puff. L. of N. viii, 6. 24.

(y) Cap. 22.

(z) 4 Inst. 351.

(a) 12 Rep. 112.

() [Prynne, in his learned argument, has enumerated several statutes made in England from the time of King John, by which Ireland was bound. 3 St. Tr. 343. That was an argument to prove that Lord Connor Maguire, Baron of Inneskillin in Ireland, who had committed treason in that country, by being a principal contriver and instigator of the Irish rebellion and massacre in the time of Car. I, and who had been brought to England against his will, could be lawfully tried for it in the King's Bench at Westminster by a Middlesex jury, and be ousted of his trial by his peers in Ireland, by force of the statute of 35 Hen. VIII, c. 2.

The prisoner having pleaded to the jurisdiction, the court, after hearing this argument, overruled the plea, and the decision was approved of by a resolution of the two houses of parliament, and Lord Maguire was found guilty, and was afterwards executed at Tyburn as a traitor.]