Commentaries on the Laws of England/Of the Countries subject to the Laws of England

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Section the fourth.

Of the Countries subject to the Laws of England.

The kingdom of England, over which our municipal laws have jurisdiction, includes not, by the common law, either Wales, Scotland, or Ireland, or any other part of the king's dominions, except the territory of England only. And yet the civil laws and local customs of this territory do now obtain, in part or in all, with more or less restrictions, in these and many other adjacent countries; of which it will be proper first to take a review, before we consider the kingdom of England itself, the original and proper subject of these laws.

Wales had continued independent of England, unconquered and uncultivated, in the primitive pastoral state which Caesar and Tacitus ascribe to Britain in general, for many centuries; even from the time of the hostile invasions of the Saxons, when the antient and christian inhabitants of the island retired to those natural intrenchments, for protection from their pagan visitants. But when these invaders themselves were converted to christianity, and settled into regular and potent governments, this retreat of the antient Britons grew every day narrower; they were overrun by little and little, gradually driven from one fastness to another, and by repeated losses abridged of their wild independence. Very early in our history we find their princes doing homage to the crown of England; till at length in the reign of Edward the first, who may justly be stiled the conqueror of Wales, the line of their antient princes was abolished, and the king of England's eldest son became, as a matter of course, their titular prince: the territory of Wales being then entirely re-annexed (by a kind of feodal resumption) to the dominion of the crown of England[1]; or, as the slatute of Rutland[2] expresses it, “terra Walliae cum incolis suis, prius regi jure feodali subjecta, (of which homage was the sign) jam in proprietatis dominium totaliter et cum integritate conversa est, et coronae regni Angliae tanquam pars corporis ejusdem annexa et unita.” By the statute also of Wales[3] very material alterations were made in divers parts of their laws, so as to reduce them nearer to the English standard, especially in the forms of their judicial proceedings: but they still retained very much of their original polity, particularly their rule of inheritance, viz. that their lands were divided equally among all the issue male, and did not descend to the eldest son alone. By other subsequent statutes their provincial immunities were still farther abridged: but the finishing stroke to their independency, was given by the statute 27 Hen. VIII. c. 26. which at the same time gave the utmost advancement to their civil prosperity, by admitting them to a thorough communication of laws with the subjects of England. Thus were this brave people gradually conquered into the enjoyment of true liberty; being insensibly put upon the same footing, and made fellow-citizens with their conquerors. A generous method of triumph, which the republic of Rome practised with great success; till she reduced all Italy to her obedience, by admitting the vanquished states to partake of the Roman privileges.

It is enacted by this statute 27 Hen. VIII, 1. That the dominion of Wales shall be for ever united to the kingdom of England. 2. That all Welchmen born shall have the same liberties as other the king's subjects. 3. That lands in Wales shall be inheritable according to the English tenures and rules of descent. 4. That the laws of England, and no other, shall be used in Wales: besides many other regulations of the police of this principality. And the statute 34 & 35 Hen. VIII. c. 26. confirms the same, adds farther regulations, divides it into twelve shires, and, in short, reduces it into the same order in which it stands at this day; differing from the kingdom of England in only a few particulars, and those too of the nature of privileges, (such as having courts within itself, independent of the process of Westminster hall) and some other immaterial peculiarities, hardly more than are to be found in many counties of England itself.

The kingdom of Scotland, notwithstanding the union of the crowns on the accesson of their king James VI to that of England, continued an entirely separate and distinct kingdom for above a century, though an union had been long projected; which was judged to be the more easy to be done, as both kingdoms were antiently under the same government, and still retained, a very great resemblance, though far from an identity, in their laws. By an act of parliament 1 Jac. I. c. 1. it is declared, that, these two, mighty, famous, and antient kingdoms were formerly one. And sir Edward Coke observes[4], how marvellous a conformity there was, not only in the religion and language of the two nations, but also in their antient laws, the descent of the crown, their parliaments, their titles of nobility, their officers of state and of justice, their writs, their customs, and even the language of their laws. Upon which account he supposes the common law of each to have been originally the same, especially as their most antient and authentic book, called regiam majestatem and containing the rules of their antient common law, is extremely similar to that of Glanvil, which contains the principles of ours, as it stood in the reign of Henry II. And the 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, conceived great difficulties in carrying on the projected union: but these were at length overcome, and the great work was happily effected in 1707, 5 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 2,000,000 l. by a land tax, Scotland shall raise 48,000 l.

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; but 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.

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 all 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.

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 for ever, 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; unless perhaps an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be “fundamental and essential conditions of the union[5].” 2. That whatever else may be deemed “fundamental and essential 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 constitutions of either of those churches, or in the liturgy of the church of England, 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, 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 consequence, in the ensuing commentaries, we shall have very little occasion to mention, any farther 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 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 constitution 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[6] , 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 Westminfter do not usually run into Berwick, any more than the principality of Wales, yet it hath been solemnly adjudged[7] 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.

As to Ireland, that is still a distinct kingdom ; though a dependent, subordinate kingdom. It was only entitled the dominion or lordship of Ireland[8], and the king's stile 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 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[9]. 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 Brehons[10]. 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[11] : which letters patent sir Edward Coke[12] 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[13] and Edward the first[14] 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 [15] 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 determining the right between party and party, but in many things repugnant quite both to God's law 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 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 as, “within any of the king's dominions.” And this is particularly expressed, and the reason given in the year books[16]: “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 persons are the king's subjects, like as the inhabitants of Calais, Gascoigny, 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 it's own internal government, and do not extend to it's distant dependent countries; which, bearing no part in the legislature, are not therefore in it's 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[17].

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[18]. But an ill use being made of this liberty, particularly by lord Gormanstown, deputy-lieutenant in the reign of Edward IV[19], a set of statutes were there enacted in the 10 Hen. VII. (sir Edward Poynings being then lord deputy, whence they are called Poynings' laws) one of which[20], 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 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[21]. But as this precluded any law from being proposed, but such as were preconceived 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, 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 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[22].

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 thereby no longer uniform, therefore it was enacted by another of Poynings' laws[23], that all acts of parliament, before made in England, should be of force within the realm of Ireland[24]. 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[25]. 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 cafe, 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 or tacitly made between the conqueror and the conquered, that if they will acknowlege the victor for their master, he will treat them for the future as subjects, and not as enemies[26].

But this state of dependence being almosr 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 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 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.

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[27], as the appeal from the chancery in Ireland lies immediately to the house of lords here: it being expressly declared, by the fame satute 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 general administred 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 dependence to be only of the person of the king, and not of the crown of England[28].

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 Portland, 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. But there are others, which require a more particular consideration.

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  1. Vaugh. 400.
  2. 10 Edw. I.
  3. 12 Edw. I.
  4. 4 Inst. 345.
  5. 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 consequentially dissolve the union: for the bare idea of a state, without a power somewhere vested to alter every part of it's laws, 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 foederate alliance, where such an infringement would certainly rescind the compact) the two contracting states are totally annihilated, without any power of revival; and a third arises from their conjuncton, in which all the rights of sovereignty, and particularly that of legislation, must of necessity refide. (See Warburton's alliance. 195.) But the 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 not certainly destroy) the union.
  6. Hale. Hist. C. L. 183. 1 Sid. 382. 462. 2 Show. 365
  7. Cro. Jac. 543. 2 Roll. Abr. 292. Stat. II Geo. I. c. 4. 4 Burr. 834.
  8. Stat. Hiberniæ. 14 Hen. III.
  9. Pryn. on 4 Inst. 249.
  10. 4 Inst. 358. Edm. Spenser's state of IReland. p. 1513. edit. Hughes.
  11. Vaugh. 294. 2 Pryn. Rec.85. 7Rep.23.
  12. 1 Inst. 141.
  13. A. R. 30. 1 Rym. Foed. 422.
  14. A. R. 4. — 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. 3 Pryn. Rec. 1218.
  15. Edm. Spenser. ibid.
  16. 20 Hen. VI. c. 8. 2. Ric. III. c. 12.
  17. Yearbook 1 Hen. VII. c. 3. 7 Rep. 22. Calvia's case.
  18. Irish Stat. 11 Eliz. st. 3. c. 8.
  19. Ibid. 10 Hen. VII. c. 23.
  20. cap. 4. expounded by 3 & 4 Ph. & M. c. 4.
  21. 4 Inst. 353.
  22. Irish Stat. 11 Eliz. st. 3. c. 38.
  23. cap. 22.
  24. 4 Inst. 351.
  25. 12 Rep. 112.
  26. Puff. L. of N. viii. 6. 24.
  27. This was law in the time of Hen. VIII; as appears by the anticnt book, entituled, diversity of courts, c. bank le roy.
  28. Vaugh. 402.