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A Digested Abridgment, and Comparative View, of the Statute Law of ..., Band 1
von Joseph Gabbett
(iv)
every disposition to excuse its errors, or do justice to its merits. I request therefore of your Lordship to receive these volumes, and this address, as a testimony of the respect and esteem
Of your obliged,
JOSEPH GABBETT.
Kildare Street, May 28th, 1812.
THE introduction of the common law of Eng- Common law land into Ireland, is to be deduced rather from the of England,
how and annals of history, than from the records of parlia- when introment. Sir W. Blackstone asserts, upon the autho-duced into
Ireland. rity of Matthew Paris, that after the conquest of Ireland by king Henry II. the laws of England were then received and' sworn to by the Irish nation, assembled at the council of Lismore. But Dr. Leland in his history observes, that there is no foundation for the assertion, that the Irish, wholly abolishing their own form of government, consented to receive the English -laws, for that, on the contrary, during this and subsequent reigns, it was deemed to be an act of especial grace or favour, to admit even the more distinguished of the Irish lords to a participation of the rights of English subjects. And Sir J. Davies asserts, that it is evident by all the records of this kingdom, that only the English colonies, and some few septs of the Irish who were enfranchised by special charters, were admitted to the benefit and protection of the laws of England; charters of denization having been common in every reign since Henry II. and being never
out of use until the time of king James I.* And both these respectable authorities concur in stating, that the petty chieftains of Ireland governed their people by the Brehon law; made their own magistrates and officers; pardoned and punished all malefactors within their several countries; made war and peace one with another, without controlment; and that they did this, not only during the reign of king Henry II. but afterwards in all times, even until the reign of queen Elizabeth. . The truth, therefore, appears to be, that though the English laws and liberties were transplanted into Ireland by the first English settlers, and confirmed to them by the charters of king John and Henry III. yet they did not overspread this country until the lapse of many centuries, their extension being commensurate with that of the English pale, or of English conquest or colonization. It was not until
the reign of queen Elizabeth, that the system of (a) Vide English tenure was adopted in Ireland; (a) and the 11 Eliz. st. 3. grievous and intolerable burdens of coyne and liand 12 Eliz. ' veryt, and other oppressive incidents of Irish vasC. 4. Ir.
salage, suppressed or extinguished. But the reign of James J. is the distinguished æra, at which the natives and inhabitants of this kingdom, no longer
deemed to be " Irish enemies," or " (b) Vide
degenerate 11.12 & 13 English," were taken into his majesty's protecJac. 1. c. 5: tion, and began to live under one law. (b)
Amongst the other English laws or usages introduced into Ireland, one of the first and most im
* It was a bye-word amongst the Irish, "that they dwelt by we:t ihe law, which dwelt beyond the river Barrow."
4. Sir J, Davies refers to an ancient discourse of the decay of Ireland, in which it was said, " that though the damnable custom of coyne and livery was first invented in hell, yet if it had been used and practised there as it had been in Ireland, it had long since destroyed the very kingdom of Beelzebub."
portant was the institution of parliaments. Though Independenthe antiquity of the modus tenendi parliamentum cy of Irish said to be transmitted for Ireland by king Henry
parliament. II. is questioned by some learned antiquaries, yet it incontestibly appears, that prior to the reign of Edward III. the parliament of Ireland was, as Sir Edward Coke observes, regulated according to the institution of England. How far the Irish parliament was or ought to be dependent upon the parliament of England, has been a subject of controversy amongst learned and ingenious men. It is neither my wish or intention to revive this discussion now : but it is important to inquire how any statutes passed in England, came to have authority or force in Ireland: and this question may be answered by referring to the statutes themselves, without resorting to historical deduction, or to any abstract or philosophical reasoning upon the subject. By the 10 Hen. 7. c. 4. Ir. as explained by the 3 & 4 Ph. & M. c. 4. Ir. it was enacted, that no parliament should be holden in Ireland, until the lord lieutenant and council should certify to the king, under the great seal, the considerations, causes, and articles of all such acts, provisions, and ordinances as were thought meet to be enacted; and should have received the king's answer, under the great seal of England, declaring his pleasure, either for the passing of the said acts in such form and tenor as they should be sent into England, or else for the change or alteration of them, or any part of them. But this latter statute provided, that such other causes, considerations, &c. as the lord 'lieutenant and council should think good to be enacted, might, in like manner, be certified pending the time of parliament; and that no other acts than such as were certified and returned under the great seal of England, should be passed in Ireland.
And it was further enacted by the 11 Eliz. st. 3. C., 8. Ir. that no bill should be certified into England for the repeal or su-pending of Poyning's act, (10 Hen. 7. c. 4. supra) before such bill should be first agreed to by the greater number of lords and commons in parliament assembled. Whether the object of this act of Sir W1'. Poyning's administration was (according to Sir J. Davies,) to restrain the governors of the realm from imposing laws upon the commons, not tending to the general good, but to serve their private turns, and to strengthen their particular factions; or (according to Mr. Molyneux) to prevent any thing passing in the parliament of Ireland surreptitiously, to the prejudice of the king, or the English interest of Ireland'; it is clear, as Dr. Leland remarks, that this statute did not contain any resignation of legislative rights, or any formal investiture of the parliament of England with the power of making laws for Ireland. But the several provisions of the 10 Hen. 7. c. 4. Ir, and 3 & 4 Ph. & M. c. 4. Ir. above stated were, in the year 1782, distinctly recited and repealed by an act of the Irish parliament (21 & 22 Geo. 3. c. 47. Ir.) Prior to this period the parliament of England had passed severa! acts affecting or purporting to bind Ireland ; and the 6 Geo. 1. c. 5. Eng. had expressly declared, that the king's majesty, by and with the advice and consent of the lords spiritual and temporal, and commons of Great Britain, in parliament assembled, had, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the kingdom and people of Ireland: But this statute was repealed by the 22 Geo. 3. c. 53. Eng. And the 23 Geo. 3. c. 28. Eng. further declared and enacted, that the right claimed by the people of Ireland to be bound only by laws