The Sun.
London, England, 1846-12-26 00:00:00

S 111 N 54 DECEIVIBER 26, 1846.

SIXTH ARTICLE OF THE UNION.
(From the Leinster Express.)
At a recent sessions in the county of Monaghan, Mr.
Hercules Ellis applied to register a claimant for the
elective franchise, upon a 40s. freehold interest. The
101. qualification being the lowest recognised in this
country, under the Irish Reform Act, such an applica-
tion is quite novel ; but Mr. Ellis founded the right of
his client upon the Sixth Article of the Legislative
Union between Great Britain and Ireland, which pro-
vides that " the subjects of Great Britain and Ireland
should be entitled to the same privileges, and be on the
same footing, with respect to all rights and advantages at
home and abroad." Whether the " privileges " conferred
by the above enactment provide equal political rights
for the people of the United Kingdom, we must leave to
others more learned in the law ; we are, however, dis-
posed to think that the passage more directly refers to
the trade and commerce of the two countries, and upon
this point, our readers will recollect that we have upon
several occasions cited this very article of the Union, in
support of the claims of the Irish distillers, and similar
questions, wherein the traffic of this country has been
seriously obstructed. To Mr. Ellis must be awarded the
credit of having brought this important subject under
consideration, and we are informed that it is the inten-
tion of the learned gentleman, to submit the case to the
discussion of the House of Lords during the ensuing
session of Parliament.
It is strange if such a provision had been made at the
-union, 47 years ago, that so little has been said of the
matter ; and we are inclined to think that the terms of
the sixth article are two vague and general to be made
applicable to Mr. Ellis's construction of its tendency. It
will be recollected, that a short time previous to the
Roman Catholic Emancipation Act, the 40s. qualifies.
tioa was possessed by the Irish electors, and that a spe-
cific Act of Parliament—in the necessity of which, by
the way, no person more fully concurred than Mr.
O'Connell—disfranchised this class of our constituency ;
even subsequent 'to that period, in '32, the Legislature
passed a special Act upon the subject, and defined—al-
though very clumsily—the franchise under the Reform
Act. If there be any weight in Mr. Ellis's arguments,
it occurs to us that the Imperial Parliamenthad nopower
to make a distinction between any portion of the subjects
of the " United Kingdem of Great Britain and Ireland,"
and if he can support this view of the question, all the
Acts which have been specially directed to Ireland, bear-
ing a singular tendency, must be rendered a dead letter :
the laws relating to the Irish Church, in the reduction of
her bishops, and 25 per cent. of her income, must come
under the same clause, as well as the Corporation Act,
the Arms Act, the Marriage Act, and various others: in
short we might add, that the word ("Ireland ")
ably inserted at the heading of every Bill, brought before
the Legislature, bearing reference to this country,
should be expunged, and thus every clause, from the
preamble to the conclusion, must be " left out."
Of course our observations merely apply to the ten-
dency of Mr. Ellis's arguments: with reference to their
law or justice, we do not at present offer any opinion,
further than a plain common sense view of the bearings
of the case; and so far as our judgment and experience
warrant us in the conviction, that as both countries are
circumstanced, there must be a distinction made in Acts
of Parliament iu reference to their relative necessities.
We sincerely wish it were otherwise, and that " the
Union" could be established upon that basis which would
bind us equally in our several relations with the State.
In fact, there should not be any distinction, and we be-
lieve the day is not far distant when the same " privileges"
must be conferred upon all the people of the United
Kingdom. We are not disciples of that system of Rip Van
Winkleism which would retain " things as they are."
We cannot close our eyes to passing events, and the in-
fluences of the altered circumstances of the times, upon
society: we desire to qualify the people of this country
for every privilege which oar liberal and enlightened
constitution confers, by inspiring a more exalted and
independent spirit amongst them, and by inciting them
to devote more attention to those industrial pursuits and
" arts of peace," which must best entitle them to the'
exercise of those political privileges, which all who con-
tribute to the welfare of the State have an equal right to
enjoy. Of late years—particularly since the temperance
movement--it cannot be denied that the moral condition
of the Irish people—making allowance for those agrarian
offences incidental to the wretched condition of the pea-
santry, and the over-competition for land—may be com-
pared with advantage to the state of any country; and
it is this feeling, more than any other, which would
inspire us with confidence. Their social condition can
only.be ameliorated by suitable exertions on the part of
those whose best interests are identified with the im-
provement of the country, aided by that mutual confi-
dence between the different classes, without which the
best efforts-must prove fruitless.
Sir Robert Peel, in resigning his place as first Minis-
ter of the Crown, declared his conviction that this
country could no longer be successfully governed by
party influence, and he avowed his desire to legislate
for Ireland upon precisely the same principle as regards
the .4 privileges" of the people as for England and Scot-
land. Mr. Ellis's proposition is peculiarly calcul4ted to
have those rights defined, and as the subject is likely to
engage the attention of the Legislature durinc, the en-
suing session, we give the arguments advanced by the
Learned Gentleman, as reported in the Northern
Standard:—
Counsellor Ellis—To enforce my client's right to the
elective franchise, it will be necessary to establish the
four following propositions:—First, that the treaty of
the Union forms the written constitution, and supreme
laws of the country, revoking all opposing statutes;
second, that by the sixth article of Union, her Majesty's
subjects of Great Britain and Ireland are entitled to the
same privilege; third, that my client is the owner in fee.
and occupier of land in this county, of the yearly value
of forty shillings; fourth, that a similar owner and
occupier in England is entitled to the elective franchise,
The last two of these propositions I have proved by evi-
dence—the first two I shall endeavour to demonstrate by
argument. If I shall succeed in doing so it necessarily
follows, that my client is entitled to the elective franchise.
For, if a supreme law gives to the inhabitants of this
country, as their right, all privileges enjoyed by the
inhabitants of England, then is my client, by virtue of
his qualification as a forty-shilling freeholder in fee, en-
titled to the elective franchise in this country. My client's
right altogether depends upon the construction of the Act
of Union. I shall, therefore, be obliged to observe upon
the origin, nature and constitution of that Act. For some
time prior to the year 1800, no power on earth (to
use the words of the declaration of Irish rights) had
authority to bind the people of this country, except the
King, Lords, and Commons of Ireland. In that year a
treaty was entered into and concluded, for the purpose of
uniting the kingdoms of Great Britain and Ireland into
one kingdom. This treaty is commonly called the Act
of Union. This instrument is not, however, a mere Act
of Parliament, but a treaty—it is so expressly termed in
the second paragraph of the fourth article, which runs
thus:—" That such Act as shall be passed to regulate the
mode by which the Lords Spiritual and Temporal, and
the Commons to serve in the Parliament of the United
Kingdom shall be summoned and returned, shall be con-
sidered as forming part of the treaty of Union," No
other Act of Parliament is styled a treaty. What is the
meaning of the word treaty? It does not signify a law
enacted by a governing body, to bind its subjects, but it
means a compact entered into between co-ordinate and
sovereign powers, The co-ordinate and sovereign
powers who were parties to the treaty of Union were
the separate and independent Kingdoms of Great
Britain and Ireland, represented respectively by
the King, Lords, and Commons of each kingdom. The
treaty of Union commences with the following recital:—
" Whereas, in pursuance of his Majesty's most gracious
recommendation to the two Houses of Parliament in
Great Britain and Ireland respectively, to consider of
such measures as might best tend to strengthen and con-
solidate the connexion between the two kingdoms, the
two Houses of' Parliament of Great Britain, and the
two Houses
,of Parliament of Ireland, have severally
agreed and resolved, that in order to promote and secure
the essential interests of Great Britain and Ireland,
and to consolidate the strength, power, and resources of
the British empire, it will be advisable to concur in such
measures as may best tend to unite the two kingdoms of
Great Britain and Ireland into one kingdom, in such
manner and on such terms and conditions as may be es-
tablished by the Acts of the respective Parliaments of
Great Britain and Ireland. And whereas, in further-
ance of the said resolution, both Houses of the said two
Parliaments respectively, have likewise agreed upon cer-
tain articles for effectuating and establishing the said
purposes in the tenor following." Immediately after
this recital, the treaty sets out the articles of union,
eight in number. These articles were first settled by
the Irish Parliament, and sent to England as the terms
and conditions upon which Ireland would consent to be
united to England. England accepted these conditions
with some slight alterations. Ireland agreed to these
alterations, and confirmed the articles so altered. The
articles of Union thus became matters of stipulationand
bargain between the two independent kingdoms of
Great Britain and Ireland. Great Britain solemnly
pledged herself to an exact observance of these terms
and conditions, and Ireland confiding in this solemn
pledge, consented to the union which she was at
that time fully competent to reject. These articles
contain a great number of covenants of a temporary
nature, which in certain events, or after a certain space
of time, the United Parliament was, by special provi-
sions, empowered to repeal. The covenants for the
alteration or repeal of which no provision is made in
the treaty of Union, are shortly these:—The first ar-
ticle declares that the kingdoms of Great Britain and
Ireland shall be for ever united into one kingdom. The
second article settles the succession to the crown of
the United Kingdom. The third article declares that
the United Kingdom should be represented in one and
the same Parliament. The fourth article (together
with the Representation Act, which, as I have already
mentioned, formed a part of the treaty of Union), settled
the number of Lords and Commons who should sit
in the United Parlianient, and the manner of their
election. The fifth article united the Established
Churches of England and Ireland, and declared that the
doctrine,worship, discipline, and government of the
united hurch should remain as they were at that time
established for the-Church. of England; and also that the
Church of Scotland should be preserved as at that time
established. The sixth article declared that the sub-
jects of Great Britain and Ireland should be en-
titled to the same privileges, and be on the same

footing, with respect to all rights and advantages
at home and abrcad The seventh article
declares that no article should be more highly
taxed in Ireland than in Great Britain. The eighth
article gives an appeal to the House of Lords—secures
the continuance of the Irish Court of Admiralty—and
repeals all the laws that conflict with the treaty of Union.
Such is the entire of the treaty of Union, which still re-
Mains in force. The solemn ratification of this treaty
by Great Britain and Ireland ts speetively is thus ex-
pressed in the words of the treaty:—" Anil whereas, the
said articles having, by address of the rep ctive Houses
of Parliament in Great Britain and Ireland, been humbly
laid before his Majesty, his Majesty has been graciously
pleased to approve the same, and to recommeed it to his
two Houses of Parliament in Great Britain and Ireland,
to censider of such measures as may be necessary for
giving effect to the said articles. In order therefore to
give full effect and validity to the same, be it enacted by
the King's Most Excellent Msjesty, by and with the
advice and consent of the Loris Spiritual and Temporal,
and Commons in the present Parliament assembled,
and by the authority of the same, that the seid
foregoing recited articles, each and every one of them,
according to the true intent and tenor thereof, be
ratified, confirmed, and approved; and be, and they
are hereby declared to be, the articles of the union
of Great Britain and Ireland, and the same shall be
is force, and have effect for ever from the first day of
January, which shall be in the year of our Lord 1801."
No words can be more full—no meaning more uneqai-
vocal—no declaration more solemn than those contained
in this ratification. By it the two kingdoms of Great
Britain and Ireland solemnly covenanted with each other
and with every citizen of both countries, that so long as
the union existed, so long should the terms and condi-
tions upon which that union was agreed to, be exactly
and faithfully fulfilled. By this ratification the kingdom
and people of Great Britain solemnly covenanted with
the kingdom and people of Ireland, that, although the
British Members of the United Parliament outnumbered
the Irish Members by five to cue, that majority, great
as it is, should be powerless to violate the articles of
union; and that the United Parliament should be compe-
tent to alter the articles of union only, in the manner
and at the time for that purpose limited.and appointed
by the articles themselves. Competent is the very
word used for this purpose by the treaty itself. Thus,
in the seventh article, itis covenanted in these words—
" That if at any future- day the separate debt of each
country respectively shall have been liquidated, or if
the values of their respective debts shall be to each
other in the same proportion with the respective
contribution of each, country respectively, then
it shall be competent to the Parliament of the United
Kingdom to declare that all future expenses thence•
forth to be incurred shall be .defrayed indiscriminately
by equal taxes, imposed on the same articles in each
country"—that is, that under certain circumstances the
otherwise unalterable nature of this part of the seventh
article shall be changed—that it shall, under such cir-
cumstances, become liable to alteration, and that the
United Parliament, before incompetent to alter this
part
of the treaty of union, shall, by force and effect of this
special provision, then become competent to alter it. By
force and effect of this treaty, the Parliament of Ireland
ceased to exist, as did also that of Great Britain. The
Parliaments of Great Britain and Ireland did not, there-
fore, attempt, in the year 1800, to bind their successors,
for successors, in the legal import of the term, they had
none ; both of these Parliaments were at that time ex-
tinguished, and a new Parliament was constituted, en-
titled the Parliament of the United Kingdom of Great
Britain and Ireland. The avowed object of the treaty
of Union was to supersede the old Legislatures of these
kingdoms, and substitute in their place a new form of
government : this, of itself imports legal obligation,
permanence, and uncontrollability by any laws but the
authority empowered by that treaty to alter or abolish
its enactments. By force and effect of the treaty of Union
alone was the United Parliament formed and consti-
tuted. The United Parliament has no prescriptive rights
in Ireland —no ancient prerogatives, which so often loom
larger than the truth amid the gloom of antiquity. It is
the creature of the treaty of Union. That treaty is the
sole fbuntain of its power, the only legal source of its
authority in Ireland; and if the treaty of Union be not in
full force in Ireland, the Parliament sitting in London
has no more right to legislate for Ireland than the Con-
gress of America. Within that treaty the extent of the
powers of the united Parliament must be sought. By
the letter of that treaty is its jurisdiction marked out
and limited. The two sovereign kingdoms of Great
Britain and Ireland, by a great international compact,
united themselves together, formed a new legislature,
and for ever bound by a supreme, unalterable, uncon-
trollable law, the legislature which they had themselves
created and constituted. The treaty of Union thus be-
came the written constitution of the empire, and a law
of supreme paramount obligation, revoking ail opposing
statute s—a law which the untie l Legislature, its crea
ture, is altogether incompetent to violate or annul. When
I say this law is unalterable, I, of course, merely speak
as a lawyer. In the same way I should say that the
succession to the Crown was settled by an unalterable
law. lam perfectly aware that in alt such cases there
exists, in the body of the people, a right in the last re•
sort to amend any law, if such a proceeding be necessary,
for the safety of the state. This implied rez.ulting
power in the people, in all eases, to provide for their own
safety, however, is not a legal and regular course, it is an
illegal and violent one. It is the revolutionary remedy,
sometimes necessary and wholesome, but one which until
it has actually occurred, cannot be used as an argument
by counsel, nor as a reason by a Judge, Notwithstand-
ing, therefore, the existence of this extreme right, if my
argument be correct, I am justified in saying that the
treaty of union is a law revoking all opposing laws ;
that every Act of the united Parliament is to be read
as if it contained a proviso, that nothing contained in it
should be construed to repeal or alter anything finally
settled by that treaty ; and that all statutes made in
violation of its provisions are, ipso facto, null and void.
My next proposition is simple in its terms and easy in
its proof—it is, that by the sixth article of the union,
her Majesty's subjects of Great Britain and Ireland are
entitled to the same privileges. Tho part of the treaty
of union upon which I rely to establish this proposition
is the first section of the sixth article, which is in the
following words :—" That it be the sixth article of
Union that his Majesty's subjects of Great Britain and
Ireland, shall, from and after the first day of January,
1801, be entitled to the same privileges—and be on the
same footing as to encouragements and bounties, on
the like articles being the growth, produce, or manufac•
ture of either country respectively—and generally in re-
spect of trade and navigation in all ports and places in
the United Kingdom and its dependencies—end that in
all treaties made by his Majesty, his heirs and succes-
sors, with any foreign Power, his Majesty's subjects of
Ireland shall have the same privilege's and be on the
same footing as his Majesty's subjects of Great Britain."
This section recites four covenants entered into between
the kingdoms of Great Britain and Ireland, four of those
terms or conditions, which the kingdom of Ireland sti-
pulated for as the price of its independence; they are, in
tact, four limitations to the power of the united Parlia-
ment, and set out four matters which the united Parlia-
ment shall for ever be iecomp‘ tent to enact. The first
of these covenants is, " That from and after the first
day of January, 1801, his Majesty's subjects of Great
Britain and Ireland shall be entitled to the same privi-
leges," that is, that from the day on which the union
shall take effect, and so long as that union shall exist,
the inhabitants of each island shall have an inalienable,
incontestable, indestructible right and title to every pri-
vilege enjoyed by the inhabitants of the other. This
covenant mutually extended to each country all the pecei
liar privileges at that time enjoyed by the other, and prc-
vided that at no future time should the United Kingdom
be competent to grant to the inhabitants of one island
any privilege which it did not at the same time grant to
the inhabitants of the other—nor, on the other hand, to
take from the inhabitants of one island any privilege
that it did not, at the same time, take from the
inhabitants of the other. The second covenant
is in reference to encouragements and bounties to
the produce and manufactures of the two islands.
This covenant declares that British and Irish
subjects shall, so long as the union exists, " be on the
same footing, as to encouragements and bounties on the
like articles, being the growth, produce, or manufacture
of either country respectively." By this covenant the
united Parliament is limited and rendered incompetent
to grant or take away any bounty or encouragement to
the manufacture or produce of one island, which it does
not, at the same time, grant or take away from that of
the other. The third covenant contained in this section
is in reference to trade and navigation. By this cove-
nant it is stipulated " That the inhabitants of Great
Britain and Ireland shall be on the same footing in re-
spect of trade and navigation, in all ports and places in
the United Kingdom and its dependencies." By this
covenant perfect equality in all matters connected with
trade, in all parts of the United Kingdom, is for ever
established between Great Britain and Ireland, and the
Parliament of the united empire is declared incompetent
to disturb that equality. The fourth covenant assures to
the inhabitants of both islands an equality in all advan-
tages derivable from treaties made between the united
empire and foreign powers. It declares that in all
treaties made by his Majesty, his heirs and successors,
with any foreign power, his Majesty's subjects of Ire-
land shall have the same privileges, and be on the same
footing as his Majesty's subjects of Great Britain. The
first three covenants contained in this section secure tei
the inhabitants of Ireland, perfect equality with the in-
habitants of Great Britain, in all rights, nrivileges, and
advantages at home or in the colonies. The fourth co-
venant, which I have just read, secures to them a similar
equality, in all rights, privileges, and advantages, ac-
quired by treaties with foreign countries. The treaty
of Union does not contain any provision authorising the
slightest alteration in any one of these covenants.
These covenants, therefore, form portions of the written
constitution of the country, and aro supreme unalterable
laws, revoking all opposing statutes. At home there-
fore, and abroad—in the British islands, and in the Bri-
tish colonies—in his native land; and in foreign countries
—perfect equality with Englishmen, in all civil rights,
benefits, privileges, and advantages, is the inalienable,
indestructible birthright of every Irishman. This
equality was the great political advantage for ages
sought for by Ireland—the great price agreed to be
paid for her legislative independence.a This equality,
in -the largest and most beneficial sense, is for ever
seen to Irclaria by the great iuteruatieual