22. SIXTEEN peers are to be chosen to represent the peerage of Scotland in parliament, and forty five members to fit in the house of commons.

23. THE fixteen 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 fame degree at the time of the union, and shall have all privileges of peers, except fitting 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 ftatute 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 fovereigns are to take an oath inviolably to maintain the fame; the other of England, 5 Ann. c.6. whereby the acts of uniformity of 13 Eliz. and 13 Car. II. (except as the fame 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 ftipulated, that every fubfequent king and queen shall take an oath inviolably to maintain the fame 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, but an infringement of those points which, when they were feparate and independent nations, it was mutually stipulated should be "fundamental and "essential conditions of the union." 2. That whatever else may be deemed "fundamental and essential conditions," the prefervation of the two churches, of England and Scotland, in the same state that they were in at the time of the union, and the main

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tenance 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 confequence, in the enfuing commentaries, we shall have very little occafion to mention, any farther than fometimes by way of illuftration, the municipal laws of that part of the united kingdoms.

THE town of Berwick upon Tweed, though subject to the crown of England ever fince the conquest of it in the reign of Edward IV, is not part of the kingdom of England, nor fubject to the common law; though it is subject to all acts of parliament, being represented by burgesses therein. And therefore it was declared by statute 20 Geo. II. c. 42. that where England only is mentioned in any act of parliament, the fame notwithstanding shall be deemed to comprehend the dominion of Wales, and town of Berwick upon Tweed. But the general law there used is the Scots law, and the ordinary process of the courts of Westminster-hall is there of no authority.

As to Ireland, that is still a distinct kingdom; though a dependent, fubordinate kingdom. It was only entitled the dominion or lordship of Ireland, 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 affumed 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 fame kingdom,

e

1 Sid. 382. 2 Show. 365.

f Stat. Hiberniae. 14 Hen. III.

and

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, defcended 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 fuch laws as the superior state thinks proper to prescribe.

Ar 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. But king John in the twelfth year of his reign went into Ireland, and carried over with him many able fages of the law; and there by his letters patent, in right of the dominion of conquest, is faid to have ordained and established that Ireland should be governed by the laws of England: which letters patent fir Edward Coke' 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 and Edward the first1 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 unanimoufly 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 preferved their Brehon law; which is defcribed 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

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Ireland. p. 1513. edit. Hughes.

4 Inst. 358. Edm. Spenser's state of tur Hybernici Deo detestabiles exiftunt, et omni juri diffonant, adeo quod leges cenferi non debeant - nobis et confilio noftro fatis videtur expediens eifdem utendas concedere leges Anglicanas. 3 Pryn. Rec. 1218.

Vaugh. 294. 2 Pryn. Rec. 85.

1

1 Inst. 341.

* A. R. 30. 1 Rym. Foed. 442.

A.R.5.-pro eo quod leges quibus utun

m Edm. Spenser. ibid.

"party, but in many things repugnant quite both to God's law "and man's." The latter part of which character is alone allowed it under Edward the first and his grandfon.

But as Ireland was a distinct dominion, and had parliaments of it's own, it is to be observed, that though the immemorial cuftoms, or common law, of England were made the rule of justice in Ireland alfo, yet no acts of the English parliament, fince 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 expreffed, and the reason given in the year book": "Ireland hath "a parliament of it's own, and maketh and altereth laws; and "our statutes do not bind them, because they do not fend repre"sentatives to our parliament: but their persons are the king's "fubjects, like as the inhabitants of Calais, Gafcoigny, and Guienne, "while they continued under the king's subjection." The method made use of in Ireland, as stated by fir Edward Coke, 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 feal of Ireland the acts proposed to be passed. 2. The king and council of England are to confider, approve, alter, or reject the faid acts; and certify them back again under the great feal of England. And then, 3. They are to be propofed, 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 propofing, 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 thape they are offered to the confideration of the lord lieutenant and privy council, who then reject them at pleasure, without tranfmitting them to England.

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 meafure of justice in both kingdoms becoming thereby no longer uniform, therefore in the 10 Hen. VII. a set of statutes pafled in Ireland, (fir 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 fame 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 fince the 10 Hen. VII. do now bind the people of Ireland, unless specially named or included under general words. 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 fuch acts of parliament. For this follows from the very nature and conftitution of a dependent state: dependence being very little else, but an obligation to conform to the will or law of that fuperior person or state, upon which the inferior depends. The original and true ground of this fuperiority 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 expreffly 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 ".

But this state of dependence being almost forgotten, and ready to be disputed by the Irish nation, it became necessary fome 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 fubordinate to, and dependent upon, the imperial crown of Great Britain, as being infeparably united thereto; and that the king's majesty, with the confent of the lords and commons of Great Britain in parliament, hath power to make laws to bind the people of Ireland.

P 4 Inft. 351. 912 Rep. 112,

Puff. L. of N. 8. 6. 24.

THUS