accordance with any demand made in the interest of the whole empire. The conclusion then which is to be drawn from an attempt to analyse the causes which impel men to obey governments is that force, at any rate so far as democracies go, is not the efficient support of the law; but that sovereignty can only become effective and permanent by the gradual creation of a law-abiding national character; and that this holds good not only of a single community but of all the constituents, nations, or provinces of an empire; and that its real unity depends upon the efficiency of its sovereignty, more especially on critical occasions. § 2. THE LEGAL RELATIONS OF ENGLAND AND For the right understanding of the effect of the creation of a legislature in Ireland it is necessary that the relations of Great Britain and Ireland in the past, as they are presented by lawyers and historians of the Constitution, should be clearly comprehended. As there is, however, much confusion in the minds of people as to the history of those relations, I trust it will not be thought useless to give a short account of the position of Ireland in regard to the English Parliament before the Act of Union. According to the theory of the English lawyer, the conquest of Ireland was effected by Henry II. That monarch, small though his share in the so-called reduction of the island was, received the homage and allegiance of the Irish princes. The Norman adventurers, who were the real conquerors, received from the King, as feudal tenants, enormous grants of the conquered territory, and probably Hallam is quite right in saying that the whole island, with the exception of the county of Dublin and the maritime towns, was divided before the thirteenth century, and most of it in the twelfth, among ten English families. How far these grants were really operative, how far the rights which these feudal tenants acquired were enforceable against Irish kings or the chieftains of Irish septs, is very doubtful. Whatever the nature and effect of these transactions, it is clear that the English kings thenceforward assumed themselves to be entitled to the lordship of Ireland, and called themselves "lords" of Ireland. The style Dominus Hibernia was used by them until the thirty-third year of Henry VIII., when that monarch took the title of "King of Ireland," a title recognised by statute 35 Henry VIII., chap. 3. It is stated by the English lawyers that the laws of England were received and sworn to by the Irish nation at the Council of Leinster.* Further, it is assumed that when King John in the twelfth year of his reign went over into Ireland, he by letters patent, * Pryn, on 4th Inst., 249., in right of conquest, established and ordained that Ireland should be governed by the laws of England.* Henry III. and Edward I. made ordinances to the same effect, and at length, in a Parliament holden at Kilkenny in the fortieth year of Edward III., under Lionel, Duke of Clarence, Brehon Law (the ancient Irish law) was formally abolished, it being unanimously declared to be no law but a "lewd custom, crept in of later times."† It further appears that so far as those parts of Ireland in which the dominion of the English kings was something more than theoretical, a government had been established in most respects analogous to that by which England was ruled. There was a Justiciary, and also a Lord Deputy, who was assisted by a Council of judges and officers, together with the prelates and barons. This administration was subordinate to the King and the Council of England. It furthermore appears that Courts of Chancery, King's Bench, Common Pleas, and Exchequer were established in Ireland; also that the Justiciary or Lord Deputy held Parliaments at his pleasure, and that, though these appear at first to have been simply assemblies of great men, that from the year 1295 knights of the shire were summoned in the same way as to the English Parliament. In 1341 it is said that deputies were summoned by the Earl of Desmond * Vaughan, 294, 7 Reports, 23. 4 Coke's Inst., 141. † 1 Blackstone, page 100. from corporations, and in 1359 commons are mentioned as being a constituent part of Parliament. From this time to the time of Henry VII. the English power appears to have declined, though it is probably not true to assert that the island was not as a whole subject, according to the then theories of government, to the English king. Hallam says the English "were established in every province, and in perfect divisions of counties, and that an administration of justice subsisted; and even the Irish chieftains, though ruling their septs by the 'Brehon Law,' do not appear at that period to have refused the acknowledgment of the King's sovereignty." But it is probably true that at the time of Henry VII.'s accession, owing largely to the Wars of the Roses, the English authority was nominal, except as to a few seaports and to the four counties within what was called the English pale. From this time, however, the English power, both in fact and in law, began to increase. It was in the tenth year of the reign of Henry VII. that the celebrated Statute called "Poyning's Law " was passed. It is only necessary to advert to those portions of the Act which relate to the operation of English law and the power of the Irish Parliament. It followed from the ordinance of John that, though the common law was made the rule of justice in Ireland, yet that no English statute made after that date extended into Ireland unless it was specially named in the statute, or included in some * general words. By "Poyning's Law" this was altered, and it was enacted that all statutes lately made in England be admitted good and effectual in Ireland; and by judicial decisions this was construed to make all the statutes of the English Parliament, including Magna Charta, from the twelfth of John up to the time of the passing of the Act of Fealty good and binding in Ireland. But from that date the enactments of the English Parliament only applied in case Ireland was expressly, or by necessary implication, mentioned. The most important enactment of "Poyning's Law," was that which defined and limited the power of the Irish Parliament by providing :-That before any Parliament should in future be summoned or held in Ireland, the chief Governor and Council should 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 after that the King, in his Council of England, should have considered, approved, or altered the said Acts, or any of them, and certified them back, under the Great Seal of England, and should have given license to summon and to hold a Parliament, then that the same should be summoned and held, and therein the Act so certified, and no other, should be proposed, and rejected or received. These provisions of "Poyning's Act" were afterwards extended by the statute of the Year Book, 1 Henry VII., 3. 7 Reports, 22. 1 Blackstone, 101. |