Commentaries on the Laws of England Part 8

[Footnote e: 1 Sid. 382. 2 Show. 365.]

AS to Ireland, that is still a distinct kingdom; though a dependent, subordinate kingdom. It was only ent.i.tled the dominion or lords.h.i.+p of Ireland[f], and the king's stile was no other than _dominus Hiberniae_, lord of Ireland, till the thirty third year of king Henry the eighth; when he a.s.sumed the t.i.tle 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 munic.i.p.al 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, at which time they carried over the English laws along with them. 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.

[Footnote f: _Stat. Hiberniae._ 14 Hen. III.]

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[g]. 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[h]: which letters patent sir Edward c.o.ke[i] 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[k] and Edward the first[l] 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[m] 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 G.o.d's law and man's." The latter part of which character is alone allowed it under Edward the first and his grandson.

[Footnote g: 4 Inst. 358. Edm. Spenser's state of Ireland. p. 1513.

edit. Hughes.]

[Footnote h: Vaugh. 294. 2 Pryn. Rec. 85.]

[Footnote i: 1 Inst. 341.]

[Footnote k: _A.R._ 30. 1 Rym. _Foed._ 442.]

[Footnote l: _A.R._ 5.--_pro eo quod leges quibus utuntur Hybernici Deo detestabiles existunt, et omni juri dissonant, adeo quod leges censeri non debeant--n.o.bis et consilio nostro satis videtur expediens eisdem utendas concedere leges Anglicanas._ 3 Pryn. Rec. 1218.]

[Footnote m: Edm. Spenser. _ibid._]

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 book[n]: "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 representatives 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 method made use of in Ireland, as stated by sir Edward c.o.ke[o], of making statutes in their parliaments, according to Poynings' law, of which hereafter, is this: 1. The lord lieutenant and council of Ireland must certify to the king under the great seal of Ireland the acts proposed to be pa.s.sed. 2. The king and council of England are to consider, approve, alter, or reject the said acts; and certify them back again under the great seal of England. And then, 3. They are to be proposed, received, or rejected in the parliament of Ireland. By this means nothing was left to the parliament in Ireland, but a bare negative or power of rejecting, not of proposing, any law. But the usage now is, that bills are often framed in either house of parliament 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 then reject them at pleasure, without transmitting them to England.

[Footnote n: 2 Ric. III. pl. 12.]

[Footnote o: 4 Inst. 353.]

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 in the 10 Hen.

VII. a set of statutes pa.s.sed in Ireland, (sir Edward Poynings being then lord deputy, whence it is called Poynings' law) by which it was, among other things, enacted, that all acts of parliament before made in England, should be of force within the realm of Ireland[p]. 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[q]. 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 const.i.tution 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 is the right of conquest: a right allowed by the law of nations, if not by that of nature; and founded upon a compact 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[r].

[Footnote p: 4 Inst. 351.]

[Footnote q: 12 Rep. 112.]

[Footnote r: Puff. L. of N. 8. 6. 24.]

BUT this state of dependence 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 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[s], as the appeal from all other courts 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 const.i.tution, "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 a.s.sent 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[t].

[Footnote s: This was law in the time of Hen. VIII. as appears by the antient book, ent.i.tuled, _diversity of courts, c. bank le roy_.]

[Footnote t: Vaugh. 402.]

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.

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[u]. 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 lords.h.i.+p of Man) to sir John de Stanley by letters patent 7 Hen. IV[w]. 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[x], the island was seised 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 t.i.tle of king had long been disused, the earls of Derby, as lords of Man, had maintained a sort of royal authority therein; by a.s.senting or dissenting to laws, and exercising an appellate jurisdiction. 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[y]. But, the distinct jurisdiction of this little subordinate royalty being found inconvenient for the purposes of public justice, and for the revenue, (it affording a convenient 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 hath at length been completed in this present year 1765, and confirmed by statutes 5 Geo. III. c. 26, & 39. whereby the whole island and all it's dependencies, so granted as aforesaid, (except the landed property of the Atholl family, their manerial rights and emoluments, and the patronage of the bishop.r.i.c.k[z] and other ecclesiastical benefices) are unalienably vested in the crown, and subjected to the regulations of the British excise and customs.

[Footnote u: 4 Inst. 284. 2 And. 116.]

[Footnote w: Selden. t.i.t. hon. 1. 3.]

[Footnote x: Camden. Eliz. _A.D._ 1594.]

[Footnote y: 1 P.W. 329.]

[Footnote z: The bishop.r.i.c.k of Man, or Sodor, or Sodor and Man, was formerly within the province of Canterbury, but annexed to that of York by statute 33 Hen. VIII. c. 31.]

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 antient book of very great authority, ent.i.tuled, _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[a]. 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 in council, in the last resort.

[Footnote a: 4 Inst. 286.]

BESIDES these adjacent islands, our more distant plantations in America, and elsewhere, are also in some respects subject to the English laws. 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 mother country; 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 is held[b], that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For as the law is the birthright of every subject, so wherever they go they carry their laws with them[c]. But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the antient laws of the country remain, unless such as are against the law of G.o.d, as in the case of an infidel country[d].

[Footnote b: Salk. 411. 666.]

[Footnote c: 2 P. Wms. 75.]

[Footnote d: 7 Rep. 17 _b._ Calvin's case. Show. Parl. C. 31.]

OUR American plantations are princ.i.p.ally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what natural justice I shall not at present enquire) or by treaties. And therefore the common law of England, as such, has no allowance or authority there; they being no part of the mother country, but distinct (though dependent) dominions. They are subject however to the control of the parliament; though (like Ireland, Man, and the rest) not bound by any acts of parliament, unless particularly named. The form of government in most of them is borrowed from that of England. They have a governor named by the king, (or in some proprietary colonies by the proprietor) who is his representative or deputy. They have courts of justice of their own, from whose decisions an appeal lies to the king in council here in England. Their general a.s.semblies which are their house of commons, together with their council of state being their upper house, with the concurrence of the king or his representative the governor, make laws suited to their own emergencies. But it is particularly declared by statute 7 & 8 W. III. c. 22. That all laws, by-laws, usages, and customs, which shall be in practice in any of the plantations, repugnant to any law, made or to be made in this kingdom relative to the said plantations, shall be utterly void and of none effect.

THESE are the several parts of the dominions of the crown of Great Britain, in which the munic.i.p.al laws of England are not of force or authority, merely _as_ the munic.i.p.al laws of England. Most of them have probably copied the spirit of their own law from this original; but then it receives it's obligation, and authoritative force, from being the law of the country.

AS to any foreign dominions which may belong to the person of the king by hereditary descent, by purchase, or other acquisition, as the territory of Hanover, and his majesty's other property in Germany; as these do not in any wise appertain to the crown of these kingdoms, they are entirely unconnected with the laws of England, and do not communicate with this nation in any respect whatsoever. The English legislature had wisely remarked the inconveniences that had formerly resulted from dominions on the continent of Europe; from the Norman territory which William the conqueror brought with him, and held in conjunction with the English throne; and from Anjou, and it's appendages, which fell to Henry the second by hereditary descent. They had seen the nation engaged for near four hundred years together in ruinous wars for defence of these foreign dominions; till, happily for this country, they were lost under the reign of Henry the sixth. They observed that from that time the maritime interests of England were better understood and more closely pursued: that, in consequence of this attention, the nation, as soon as she had rested from her civil wars, began at this period to flourish all at once; and became much more considerable in Europe than when her princes were possessed of a larger territory, and her counsels distracted by foreign interests.

This experience and these considerations gave birth to a conditional clause in the act[e] of settlement, which vested the crown in his present majesty's ill.u.s.trious house, "That in case the crown and imperial dignity of this realm shall hereafter come to any person not being a native of this kingdom of England, this nation shall not be obliged to engage in any war for the defence of any dominions or territories which do not belong to the crown of England, without consent of parliament."

[Footnote e: Stat. 12 & 13 W. III. c. 3.]

WE come now to consider the kingdom of England in particular, the direct and immediate subject of those laws, concerning which we are to treat in the ensuing commentaries. And this comprehends not only Wales, of which enough has been already said, but also part of the sea. The main or high seas are part of the realm of England, for thereon our courts of admiralty have jurisdiction, as will be shewn hereafter; but they are not subject to the common law[f]. This main sea begins at the low-water-mark. But between the high-water-mark, and the low-water-mark, where the sea ebbs and flows, the common law and the admiralty have _divisum imperium_, an alternate jurisdiction; one upon the water, when it is full sea; the other upon the land, when it is an ebb[g].

[Footnote f: Co. Litt. 260.]

[Footnote g: Finch. L. 78.]

THE territory of England is liable to two divisions; the one ecclesiastical, the other civil.

1. THE ecclesiastical division is, primarily, into two provinces, those of Canterbury and York. A province is the circuit of an arch-bishop's jurisdiction. Each province contains divers dioceses, or sees of suffragan bishops; whereof Canterbury includes twenty one, and York three; besides the bishop.r.i.c.k of the isle of Man, which was annexed to the province of York by king Henry VIII. Every diocese is divided into archdeaconries, whereof there are sixty in all; each archdeaconry into rural deanries, which are the circuit of the archdeacon's and rural dean's jurisdiction, of whom hereafter; and every deanry is divided into parishes[h].

[Footnote h: Co. Litt. 94.]

A PARISH is that circuit of ground in which the souls under the care of one parson or vicar do inhabit. These are computed to be near ten thousand in number. How antient the division of parishes is, may at present be difficult to ascertain; for it seems to be agreed on all hands, that in the early ages of christianity in this island, parishes were unknown, or at least signified the same that a diocese does now.

There was then no appropriation of ecclesiastical dues to any particular church; but every man was at liberty to contribute his t.i.thes to whatever priest or church he pleased, provided only that he did it to some: or, if he made no special appointment or appropriation thereof, they were paid into the hands of the bishop, whose duty it was to distribute them among the clergy and for other pious purposes according to his own discretion[i].

[Footnote i: Seld. of t.i.th. 9. 4. 2 Inst. 646. Hob. 296.]