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10. Invalid Statutes. Acts of parliament, that are impossible to be performed, arè of no validity, and if there arise out of them any absurd consequences, contradictory to reason, they are, with those collateral consequences, void. If parliament will positively enact an unreasonable thing, there is no power in the ordinary forms of the constitution vested with authority to control it. The judges are not at liberty to reject it, for that were to set the judicial power above that of the legislature, which would be subversive to all government.
Collateral Matters. But where some collateral matter arises out of the general words, and happens to be unreasonable, there the judges naturally conclude, that this consequence was not foreseen by the parliament, and, therefore, they are at liberty to expound the statutes by equity, and only quoad hoc disregard it.
Equity. Jurisdiction. Equity is also frequently invoked to assist, moderate and explain the laws. There are peculiar courts of equity established for the benefit of the subject; to detect latent frauds and concealments, which the process of the courts is not adapted to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though not cognizable in a court of law; to deliver from such dangers as result from misfortune or oversight, and to give a more specific relief, and one more adapted to the circumstances of the case, than can always be obtained by the rules of the common law. This is the business of our courts of equity, which are only conversant with matters of property. In criminal cases, no power should be lodged in any judge to construe the law, otherwise than according to the letter. A man cannot suffer more punishment than the law assigns, but he may suffer less. In case of apparent hardship, the crown has the power to pardon.
SECTION IV. COUNTRIES SUBJECT TO ENGLISH LAWS.
England Originally alone Subject. The kingdom of England, over which our municipal laws have jurisdiction, includes by the common law only the territory of England. And yet the civil laws and local customs of this land do now obtain with certain restrictions, in part or in all the adjacent countries of Wales, Scotland and Ireland.
Political History. Wales had continued independent of England, unconquered and uncultivated, in a primitive, pastoral state for many centuries, as Cæsar and Tacitus describe the ancient Britons, even from the time of the hostile Saxons, when Christians retired to these natural intrenchments for protection from their pagan visitants. When the invaders themselves became Christian converts, and organized regular governments, this retreat of the ancient Britons grew daily narrower. They were driven from one fastness to another, and gradually abridged of their wild independence.
Conquest of Wales. Early in our history we find their princes doing homage to the crown of England, till at length in the reign of Edward I, who may justly be styled the conqueror of Wales, the line of their ancient princes was abolished, and the king of England's eldest son became their titular prince, being styled “prince of Wales.” The territory of Wales was annexed, by a kind of feudal resumption, to the dominion of the crown of England. By statute also of Wales, material alterations were made in their laws, so as to reduce them nearer to the English standard, especially in the forms of judicial proceedings, but they still retained much of their original polity, particularly their rule of inheritance, dividing the lands equally among the issue male.
Made English Subjects. The finishing stroke to their independence was given in the reign of Henry VIII of England, which advanced their civil prosperity, by admitting them to a thorough communication of laws with English subjects. They were made fellow citizens with their conquerors, a generous method of triumph, which the republic of Rome practiced with great success, till she reduced all Italy to obedience to her rule, by admitting the vanquished states to partake of the Roman privileges. The statute of Henry VIII enacted: (1) That Wales should be forever united to England. (2) That all Welshmen born shall have the same liberties as the other subjects of the king. (3) That lands in Wales shall be inheritable according to the English tenure and rules of descent. (4) That the laws of England and none other shall be used in Wales. The country was divided into twelve shires.
Political History. The kingdom of Scotland, notwithstanding the union of the crowns on the accession of James, continued an entirely separate and distinct kingdom for above a century more, though an union had been long projected. Apparently this could be readily accomplished, as both kingdoms were anciently under the same government, and still retained a very great reseinblance, though far from an identity in their laws. By an act of parliament in the reign of James I, the two kingdoms of Scotland and England were declared one.
Resemblance to England. There was a marked conformity in the religion and language of the two nations, also in their ancient laws, the descent of the crown, their parliaments, their titles of nobility, their officers of state and justice, their writs, their customs, and even the language of their laws. On which account, Coke supposes the common law of each to have been originally the same.
Terms of Union. The union of the two countries was not in all respects effected, however, until 1707. The name, Great Britain, was applied to them. The succession to the monarchy was the same, as had been settled with regard to England. One parliament should represent them, and there should be a communication of all rights and privileges. The English standard of coins, weights and measures should be adopted. The laws relating to trade, customs and excise should be the same. But all the other laws of Scotland were to remain in force, though alterable by the parliament of Great Britain. Sixteen Scottish peers were to represent Scotland in parliament, and forty-five members to sit in the house of commons. The church of Scotland and also the four universities of that kingdom were established forever.
The Act of Union. The two countries are now so inseparably united, that separation between them can never occur, except by mutual consent, or the successful resistance of either, upon apprehending an infringement of the fundamental and essential conditions of the union. One of these conditions is, the preservation of the two churches of England and Scotland in the same state as they were at the union, and the maintenance of the acts of uniformity, which establish our common prayer. Another condition is, that the municipal laws of Scotland shall be preserved there, unless altered by parliament. As these have not been so altered in any important particulars, the municipal or common laws of England are, generally speaking, of no force or validity in Scotland.
Berwick upon Tweed. This town was originally part of the kingdom of Scotland, but was reduced into the possession of the English crown by Edward I, who gave the town a charter, which was confirmed by Edward III. James I remodelled this, and all its franchises and liberties were subsequently confirmed in parliament. Though at the present time, certain royal writs do not run into Berwick, any more than in Wales, yet all prerogative writs may issue there as elsewhere.
Political History. This country is still distinct, though a dependent, subordinate kingdom. Its laws generally agree with those of Great Britain. Its inhabitants for the most part are descended from the English, who planted in it a kind of colony, after its conquest by Henry II, and the introduction there of the laws of England. Being thus in a state of dependence, it must necessarily conform to such laws, as the superior state thinks proper to prescribe.
The Brehon Law. At the time of the conquest, the Irish people were governed by what they called the Brehon law, so styled from the Irish name of judges, who were termed Brehons. But king John visited Ireland, accompanied by learned men of the law, and, in right of dominion by conquest, ordained that Ireland should be governed by English laws. The Irish were averse to this, and still clung to the Brehon law, so that Henry III and Edward I repealed the order, but at length under Edward III, this law was formally abolished. Yet even in Elizabeth's reign, many of the natives preserved this law, which had been delivered to them by tradition.
General Acts of Parliament. But as Ireland was a distinct dominion, 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 reign of king John, extended into that kingdom, unless it was specially named or included under general words, such as “within any of the king's dominions.”
Irish Parliament. 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. But an ill use being made of this liberty, in the reign of Henry VII a set of statutes were enacted, called Poyning's laws, from the name of the then lord deputy, to restrain the power of the deputy and also of the Irish parliament. These provided, that before any parliament be summoned in Ireland, the reasons and causes for convening the same be submitted to the English king, who might at his discretion grant a license for holding the same, at which session only such propositions, as had been certified to the king, should be acted upon. As this precluded any law being proposed, which had not been preconceived before the parliament convened, and hence occasioned great inconvenience, it was provided in Queen Mary's time, that any new propositions might be certified to England during the session of the parliament. By this means, there was nothing left to the Irish parliament, but a bare negative or power of rejecting, not of proposing or altering any law.
Ireland a Dependent State. The Irish nation, being excluded from the benefit of the English statutes, was deprived of many good and profitable laws made for the improvement of the common law, and the measure of justice in both kingdoms becoming thence no longer uniform, it was enacted by another of Poyning's laws, that all acts of parliament before made in England should be of force in Ireland. But the laws passed from the time of Henry VII to that period do not bind the Irish people, unless specially named, or included in general words. If so specified, they are bound by such acts, for this follows from the very nature and constitution of a dependent state, which is under obligation to conform to the will or law of that superior person or state, upon which the inferior depends. To emphasize this state of dependency, a statute was passed in the reign of George I, which 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 with the consent of the parliament of Great Britain had power to make laws to bind the Irish people.
Appeals from Courts. The ultimate resort from the courts of justice in Ireland, as in Wales, is to those of England;