As to Ireland (d), its inhabitants, at the time of the conquest of the island by Henry the second, were governed by what they called the Brehon law, so styled from the Irish name of judges, who were denominated Brehons (e). But on such conquest, the laws of England were received and sworn to by the Irish nation assembled at the council of Lismore (f). And afterwards [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 letterspatent, in right of the dominion of conquest, is said to have ordained and established that Ireland should be governed by the laws of England (g): which letters-patent Sir Edward Coke apprehends to have been there confirmed in parliament (h). 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 (i) and Edward the first (k) 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 (1) to have been "a rule of right un"written, 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 (d) As to Ireland, see 4 Inst. 349. (e) 4 Inst. 358; Edm. Spenser's State of Ireland, p. 1513, edit. Hughes. (f) Pryn. on 4 Inst. 249. (g) See Craw v. Ramsay, Vaugh. 294; 2 Pryn. Rec. 85; Calvin's case, 7 Rep. 23; Campbell v. Hall, Cowp. 210. (h) Co. Litt. 141. (i) A. R. 30; 1 Rym. Fœd. 442. (k) 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 Anglicanas."-Pryn. Rec. 1218. (1) See Spenser's State of Ireland, ubi sup. ["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.] Notwithstanding this settlement of Ireland, it was only entitled the dominion or lordship of Ireland (m), 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 the title of king, which is recognized by act of parliament, 35 Hen. VIII. c. 3. 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 (n); where it is said, " 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 (0), "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 66 (m) Stat. Hiberniæ, 14 Hen. 3. (n) 20 Hen. 6, 8; 2 Rich. 3, 12. (0) Lord Coke, citing this in Calvin's case (7 Rep. 22), inserts the following parenthesis, viz. "(which is to be understood unless specially named)." [them expressly by name, or includes them under general words, there can be no doubt but then they are bound by its laws (p). The original method of passing statutes in Ireland was nearly the same as in England, the chief governor holding parliaments at his pleasure, which enacted such laws as they thought proper (q). But an ill use being made of this liberty, particularly by Lord Gormanstown, deputylieutenant in the reign of Edward the fourth (r), a set of statutes were there enacted in the tenth year of Henry the seventh (Sir Edward Poynings being then lord deputy, whence they are called Poynings' laws), one of which (s), in order to restrain the power as well of the deputy as of 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; and 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 licence 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 (t). But as this precluded any laws 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 afterwards provided by the Irish statute of 3 & 4 Ph. & Mary, c. 4, [that any new propositions might be certified to England in the usual forms, even after the summons and during the session of parliament.] Still, however, [there was nothing (p) Year Book, 1 Hen. 7,3; Calvin's case, 7 Rep. 22. (q) Irish Stat. 11 Eliz. st. 3, c. 8. (r) Ibid. 10 Hen. 7, c. 23. (s) Cap. 4, expounded by 3 & 4 Ph. & M. c. 4. (t) 4 Inst. 353. [left to the parliament in Ireland, but a bare negative or power of rejecting, not of proposing or altering, any law.] But the usage afterwards was, that bills were often framed in either house, under the denomination of "heads for a bill or bills:" and in that shape they were 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. With regard, however, to 66 Poynings' law" in particular, it could not be repealed or suspended unless the bill for that purpose, before it was certified to England, were approved by both houses (u). [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 no longer uniform, it was therefore enacted by another of" Poynings' laws” (x), that all acts of parliament, before made in England, should be of force within the realm of Ireland (y).] But by the same rule, that the people of Ireland were not bound by acts of the English parliament passed before this enactment, and not specially naming or referring to Ireland, so they were not bound by such acts of parliament passed after this enactment (z). And on the other hand it was equally clear that where Ireland was particularly named, or included under general words, they were bound by such acts of parliament. [For this follows from the very nature and constitution of a dependent state: (u) Irish Stat. 11 Eliz. st. 3, c. 8. (x) Cap. 22. (y) 4 Inst. 351. (x) 12 Rep. 112. By the Act, however, of the Irish parliament, 21 & 22 Geo. 3, c. 48, (Yelverton's Act,) it was enacted, that certain statutes then made in England or Great Britain, relating to the subVOL. I. jects therein enumerated, save so H [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, was 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 (a). But this state of dependence being almost forgotten, and ready to be disputed by the Irish nation, it became necessary to declare how that matter really stood; and therefore by statute 6 Geo. I. c. 5, it was declared, that the kingdom of Ireland ought to be subordinate to, and dependent upon, the imperial crown of Great Britain, as being inseparably united thereto; and that the king's majesty, with the consent of the lords and commons of Great Britain in parliament, had power to make laws to bind the people of Ireland.] It was not only the parliamentary constitution of Ireland that was thus placed in a state of dependence; the same kind of inferiority attached to her courts of justice, from which there was an ultimate resort to the English courts, [and a writ of error (in the nature of an appeal) lay from the King's Bench in Ireland to the King's Bench in England (b), and an appeal from the chancery in Ireland immediately to the House of Lords here:-it being also expressly declared, by the 6 Geo. I. c. 5, that the peers of Ireland have no jurisdiction to affirm or reverse any judgments or decrees whatsoever.] For it was maintained to be a proper and 24. (a) Puff. Law of Nations, viii. 6, (b) This was law in the time of Hen. 8; as appears by the antient book intituled Diversity of Courts, c. Bank le Roy. |