Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

I have the rather mentioned this ancient practice of making laws, because it shews how inconsistent with our constitution is that republican notion, which was broached by the enemies of Charles the First, that the king, by his coronation oath, swearing to observe the laws quas vulgus elegerit, was obliged to pass all bills presented to him, and had no negative. The meaning, certainly, only extended to his observation of the laws in being. For if the words were to be construed of future propositions, and in the sense that those people would put upon them, the lords also, as well as the king, must be deprived of their power of dissent, and so indeed, it appears, they expounded it; for when the lords offended them, by refusing the trial of the king, they confidently enough with the maxim they had established, turned them out of doors.

But though such as I have mentioned is the constitution of the English parliament, the form of the legislature in this kingdom hath been for above two hundred and sixty years very different, the nature of which, and the causes of its deviation from its model, it is proper every gentleman of this country should be acquainted with. In the infancy of the English government in Ireland, the chief governors were generally chosen by the king out of the lords of the pale, the descendants of the first conquerors, both as they were better acquainted with the interest, and more concerned in the preservation of the colony, and also as, by their great possessions, they were better enabled to support the dignity of the place, whose appointments, the king’s revenue here being inconsiderable, were very low. These governors, however, though men of the greatest abilities, and of equal faithfulness to the crown, were not able to preserve the footing the English had got soon after the conquest; but were every day losing ground to the natives, down to the reign of Edward the Third, which is generally, and, I believe, justly, attributed to the negligence of the English lords, who, by intermarriages, had acquired great estates in Ireland. The power of these lord lieutenants was, in one respect, likewise exorbitant, namely, in giving consent to laws without ever consulting his majesty, a power, perhaps, necessary at first, when the country was in a perpetual state of war, and its interest would not brook delays, but certainly, both for the sake of king and people, not fit to be continued.

It was natural, therefore, for the king, who found himself ill served, to change hands, and to entrust this exorbitant power with persons not estated in the country, and whose attachment he could confide in; and accordingly, from that time, we find natives of England generally appointed to the government, to the great discontent of the Irish lords, who looked upon themselves as injured by the antient practice not being continued. This discontent was farther inflamed by a very extraordinary step, which this otherwise wise and just king was prevailed upon to take, and which first gave rise to that famous distinction between the English by blood, and the English by birth. This king, and his father Edward the Second, had granted great estates, and extensive jurisdictions to many Irish lords of English blood, for services pretended to have been done, many of which, it is probable enough, as the king alledged, were obtained by deceit and false representation; and had he contented himself with proceeding in a legal course, by calling these patents in by scire facias, and vacating them upon proof of the deceit, no person could have complained; but he took a very different method, as appears from the writ he thought proper to issue on that occasion. Quia plures excessivæ donationes terrarum, tenementorum & libertatum, in terra Hiberniæ, ad minus veracem & subdolam suggestionem petentium, tam per Edward II. quam per regem nunc factæ sunt, rex delusorias hujusmodi machinationes volens elidere, de concilio peritarum sibi assistentium, omnes donationes terrarum, tenementorum, & libertatum prædictarum duxit revocandas, quousque de meritis personarum, de causis & conditionibus donationum prædictarum fuerit informatus, & ideo, mandatum est justiciariis regni Hiberniæ, quod omnia terras tenementa & libertates predicta per dictos regis justiciarios aut locum tenentes suos quibuscunque personis facto scisire facias. This hasty step alienated the English Irish from the king and his advisers, and though, after a contest of eleven years, the king annulled this presumption, the jealousy continued on both sides, and the Irish of English blood, were too ready to follow the banners of any pretender to the crown of England.

In the reign of Henry the Sixth, that weak prince’s ministers, jealous of the influence of Richard duke of York in England, and of his pretensions to the crown, constituted him governor of Ireland; than which they could not have done a thing more fatal to their master’s family, or to the constitution of this kingdom, as it turned out in the sequel; for to induce him to accept it so eager were they to remove him from England, they armed him almost with regal powers. He was made lieutenant for ten years, had all the revenue, without account, besides an annual allowance from England; had power to farm the king’s lands, to place and displace officers, and levy soldiers at his pleasure. The use the duke made of his commission was to strengthen his party, and make Ireland an asylum for such of them as should be oppressed in England; and for this purpose passed an act of parliament, reciting a prescription, that any person, for any cause, coming into the said land, had used to receive succour, tuition, supportation, and free liberty within the said land, during their abiding there, without any grievance, hurt, or molestation of any person, notwithstanding any writ, privy seal, great seal, letters missive under signet, or other commandment of the king, confirming the said prescription, and making it high treason in any person who should bring in such writs, and so forth, to attach or disturb any such person.

This act, together with the duke’s popularity, and the great estate he had in this kingdom, attached the English Irish firmly to his family, insomuch that, in Henry the Seventh’s reign, they crowned the impostor Lambert Simnel, and were afterwards ready to join Perkin Warbeck; and by this act of the duke of York’s they thought to exculpate themselves[286]. But when that king had trodden down all opposition, he took advantage of the precarious situation they were in, not only to have that act repealed, and to deprive his representatives there from passing laws rege inconsulto, but also to make such a change in the legislature, as would throw the principal weight into his and his successors’ hands; and this was by the famous law of Poyning’s[287]. By former laws a parliament was to be holden once a year, and the lords and commons, as in England, were the proposers. This act, intended to alter these points, gave occasion to many doubts; and indeed, it seems calculated for the purpose of not disclosing its whole effect at once. Its principal purport, at first view, seeming to be intended to restrain the calling the parliament, except on such occasions as the lord lieutenant and council should see some good causes for it, that should be approved by the king. The words are, that “from the next parliament that shall be holden by the king’s commandment and license, no parliament be holden hereafter in the said land, but at such season as the king’s lieutenant and council there first do certify the king, under the great seal of that land, the causes and considerations; and all such acts as to them seemeth should pass in the same parliament, and such causes, considerations, and acts, affirmed by the king and his council to be good and expedient for that land, and his license thereupon, as well in affirmation of the said causes and acts, as to summon the said parliament under his great seal of England had and obtained; that done, a parliament to be had and holden after the form and effect before rehearsed, and any parliament holden contrary to be deemed void[288].”

The first and great effect of this act was, that it repealed the law for annual parliaments, and made the lord lieutenant and council, or the king who had the naming of them, with his council of England, the proposer to the two houses of the laws to pass, at least of those that should be so devised before the meeting of parliament. But the great doubt was, as there were no express words depriving the lords and commons of their former rights, whether, when the parliament was once met, they had not still the old right of beginning other bills, or whether they were not restrained to the acts so certified and returned. By the preambles of some acts, soon after made, expressing that they were made at the prayer of the commons in the present parliament assembled, one would be inclined to think that the commons, after the assembling the parliament, had proposed these laws. Certain it is, the latter opinion, supported by the ministers of the king and his lawyers, gained ground. For, in the twenty-eighth of Henry the Eight’s reign, an act was made suspending Poyning’s law with respect to all acts already passed, or to be passed in that parliament; the passing of which act was certainly a strong confirmation of what was before doubtful against the house of lords or commons in Ireland, whether they could bring in bills different from those transmitted by the council, since here they both consented to the suspension of the act, to make valid the laws they had passed or should pass in that parliament, without that previous ceremony[289].

But in the reign of Philip and Mary, by which time this opinion, before doubtful (for so it is mentioned in the act then made) was, however, to be maintained, and strengthened, as it added power to the crown. The act we at present live under was made to prevent all doubts in the former, which was certainly framed in words calculated to create such doubts, to be extended in favour of the prerogative. This provides, that as many causes and considerations for acts not forseen before, may happen during the sitting of parliament, the lord lieutenant and council may certify them, and they should pass, if they should be agreed to by the lords and commons. But the great strokes in this new act were two, the first explanatory of part of the former in Henry the Seventh’s reign, that is, that the king and council of England should have power to alter the acts transmitted by the council of Ireland; secondly, the enacting part, that no acts but such as so came over, under the great seal of England, should be enacted; which made it clear, that neither lords or commons in Ireland had a right to frame or propose bills to the crown, but that they must first be framed in the privy council of Ireland, afterwards consented to, or altered by the king, and the same council in England, and then, appearing in the face of bills, be refused or accepted in toto by the lords and commons here[290].

It is true, that both lords and commons have attempted, and gained an approach towards their antient rights of beginning bills, not in that name, but under the name of Heads of Bills, to be transmitted by the council; but as the council are the first beginners of acts of parliament, they have assumed a power of modelling these also. The legislature of Ireland is, therefore, very complicated. First, the privy council of Ireland, who, though they may take the hint from the lords or commons, frame the bill, next the king and council of England, who have a power of alteration, and really make it a bill, unalterable, by sending it under the great seal of England; then the two houses of lords and commons, who must agree in the whole, or reject the whole; and, if it passes all these, it is presented to the king for his assent; which indeed is but nominal, as it was before obtained.