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S T A T E D.
B Y
WILLIAM MOLYNEUX, of DUBLIN, ESQ.
1
ALSO,
A fmall Piece on the fubjeft of Appeals to the Lords of England,
by the fame Author,
- . U " '• ' "
NEVER BEFORE PUBLISHED;
TO WHICH ARE ADDED,
LETTERS
\ : >
r T O T H E
MEN of IRELAND,
B Y
OWEN ROE O’N I A L.
DUBLIN:.
I N TED INTHE YEAR M,DCC,LXXXII.
ini-
J
Editor’s Advertisement.
»
. V
t'rl
1 HE ptefent happy profpe&s opening to o'iir view, feem to pre¬ clude the neceflity of any publication that juftifies the restoration of the conftitution or commerce of this kingdom : — But as the follow- ing work was undertaken, when appearances were not fo encourag¬ ing; and nearly compleated, before the flattery of expectation was gratified : The gentlemen, at whofe inlbance it was begun, defired its completion, that Irifhmen, being put in pofFefiion of the bed ar¬ guments in Support of their liberty, may always be as attentive to its prefervation, as they have been virtuous and Spirited in the ob¬ taining it.
The CASE was written Shortly after the Revolution ; and altho’ the rights of Ireland are there juftly afferted from hilbory, from law, from policy, and nature, yet Such was the offence and jealoufy it created in England, that a copy of it was burned there by the hands of the common hangmah, previous to the Declaration of the 6th of George I.- — In this Edition much pains have been taken in ac¬ curately tranflating the Latin Quotations into Englifh, (which are printed in Italic characters) to render it perfectly level to every capacity.
The REASONS were written about the fame time tho’ not published till the prefent occafion.
The merit of O’NIAL’s LETTERS is too well known to require any reafons being affigned for their republication: — They were the great Stimulants to the Spirit which pervades this kingdom, and their frequent pmifal will prelerve it : — The liberality of Senti¬ ment, beauty of compofition, force of argument, and Spirit of pa- triotiim, thro’ every page, will always endear them to the man of tafle, and friend of his country.
Cj* To promote the laudable intentions of this publication, and that it may be the more extenfively circulated, a large impreflion has been printed, and the price reduced much below books of this Size.
June, 1782.
'"t
K
TO THE
I
N
G.
SIR,.; '! _
*H E expedition your Majefty undertook into England , to refcue thefts nations from arbitrary power y and thcfe unjujl invaftons that were made on our religiony /aw, rights and liber¬ ties y was an aCtion in itfelf fo greaty and of fuch immenfe benefit to our diftrejfed countries , that ’ tis impsjftble to give it a' reprefentation Jo glorious as it deferves . Of all your Majefty’ t kingdoms , none was more fcnfible of the happy effeCls thereof \ than your kingdom of Ireland y. which from the depth of mifery and defpdtry is raifed by your Majejiy to a profperotus and fiiurifbtng condition. And we prefume mojl humbly to implore the continuance of your Majefty' 's graces to usy by protecting and defending thofe rights and liberties which we have enjoyed under the crown op England for above five hundred years \ and which fome of late do endeavour t» violate. Tour mojl excellent Majejiy is the common indulgent father of all your countries ; and. has an equal regard to the birth-rights of all your children ; and will not permit the eldeft% becaufi the JlrongeJly to encroach on the pojfejfions of the younger: Efpecially considering with what duty y loyalty y and filial obedience , we have ever behaved ourjelves to your Majejiy ; infomuchy that I take leave to ajferty that your Majejiy has not in all your dominions a peo¬ ple more united andjleady to your interefts than tie Proteftants of Ireland ; which has man's - fefily appeared in all our aCtious and parliamentary proceedingSy fince your Majefty' s happy; accejfion to the throne. To relieve the dtftrejfedy has ever been the peculiar character of your Majejiy' s glorious family. The United Provinces have found this in your famous ancefiors ; and all Europe has been fenjible of this in your royal perfion. To this end more particularly you came into theje kingdoms , as your Majefty has been plea fed to declare : And as you have ejlablijhed the rights and liberties ej England on a foundation thaty we hopey can never be Jhaken \ Jo we doubt not but your facred Majefty will have a tender care of your poor fub- jeds oj Ir eland y who are equally your fubjeClSy as the reft of your people*
Pardon y I moft humbly bejeecb your Majefty , my prefumptiony in appealing to you on this sc - cafion ; Nothing but the dignity and weight of the fubjeCly tan eoicufe my boldnefs herein ; 'but if that be confideredy it deferves the regard of the greatef Prince ; 'tis no lefts than the rights and liberties of one of his kingdoms y on which their religiony their property , their all depends ; and which they have enjoyed for five hundred years paft. Thisy I thinky I have clearly Jhewn in the following leaves ; I am furty if myr management thereof \ were fuitable to the jujlice of our caufey our friends of England can no longer doubt it.
At your Majejiy s feet thereforey I throw it and with it the unworthy author thereof.
May it phafe your Majefty 9
four Majefty s mojl dutiful, hjaly And obedient SubjeCl and Servant ,
WILLIAM MOLYNEUX
P R E F A C E
T O T H E
D E R.
R E
IH A V E nothing to offer in this Preface, more than to let the Reader know, how unconcerned I am in any of thofe particular inducements, which might feem at this juncture to have occafi- cncd the following difeourfe.
1 have not any concern in wool, or the wool-trade. I am no wife interefted in the forfeitures, or grants. I am not at all folicitous, whether the Bifhop, or Society of Derry recover the land they con- teft about.
So that, I think, 1 am as free from any perfonal prejudice in this caufe, as Vis poffiblc to expeft any man fhould be, that has an ef- tate and property in this kingdom, and who is a Member of Parlia¬ ment therein. I hope therefore ’tis a public principle that has moved me to this undertaking : I am fure, I am not confcious to myfelf of any other intention.
I have heard it has been faid, that perhaps I might run fome ha¬ zard in attempting this argument ; but I am not at all apprehenfive of any fuch danger : We are in a miferable condition indeed, if we may not be allowed to complain, when we think we are hurt ; and to give our reafons with all modefty and fubmiffion. But were it otherwife, it would not in the lead: affe&, or dilcourage me in an at¬ tempt, where I think my caufe good, and my country concerned, and where I am fully perfuaded, the true intereft of England is as deep¬ ly engaged, as the Proteftant intereft of Ireland.
Thegreat and juft council of England freely allows all addreffes of this fort. To receive and hear grievances, is a great part of their buftnefs ; and to redrefs them, is their chief glory. But this is not to be done, till they are laid before them, and fairly ftated for their confideration.
This I have endeavoured in the following paper. What fuccefs it may have, I am not very folicitous about. I have done what I thought was my duty, and commit the event to God Almighty, and the wife council of England.
Dublin , Feb, 8, 1697-8.
W. MOLYNEUX.
ts®
■as
C
THE
A S
E
O F
R E
A N D’s
being bound by
ACTS of PARLIAMENT
MADE IN
ENGL AND.
STATED*
Introduction and occajton of this difquifttiom
I HAVE ever been fo fully perfuaded of the ftridt juftice of the par¬ liament of England, that I could never think that any of their pro- ceedings, which might feem to have the leaft tendency to hardfhip oil their neighbours, could arife from any thing but Want of due informa¬ tion, and a right Rate of the bufmefs under their confideration. The want of which, in matters wherein another people are chiefly con-* cerned, is no defeat in the parliament of England, but is highly blameable in the perfons whofe affair is tranfa&ing, and who permit that illullrious body of fenators to be mifinformed, without giving them that light that might rectify them.
I could never imagine that thofe great abettors of their own liber¬ ties and rights, coiild ever think of making the leaft breach in the rights and liberties of their neighbours, unlefs they thought that they had right fo to do ; and this they might well furmife, if their neigh¬ bours quietly fee their inclofures invaded, without expoftulating the matter at leaft, and fhewing reafons, why they may think that hard- fhips are put upon them therein.
The confideration hereof has excited me to undertake this ctifqul- fition, which I do with all imaginable diffidence of my own perfor-* mance, and with the- moft profound refpeft and deference to that
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augufl fenate. The prefent jun&ure of affairs, when the bufinefs of Ireland is Under the confideration of both houfes of the Englifh par¬ liament *, feems to require this from fome perfon ; and feeing all others filenf, I venture to expofe my own weaknefs, rather than be wanting at this time to my country. I might fay indeed to mankind ; for his the caufe of the whole race of Adam, that I argue: Liberty feems the inherent right of all mankind ; and on whatsoever ground any one nation can challenge it to themfelves, on the fame reafon may the reft of Adam’s Children expeft it.
If what I offer herein feems to carry any weight, in relation to my own poor country, I fhall be, abundantly happy in the attempt : But if after all, the great council of England refolve the contrary, 1 fhall then believe myfelf to be in an error, and with the loweft fubmiffion afk pardon for my affurance. However, I humbly prefume I fhall not be hardly cenfured by them, for offering to lay before them a fair ftate of our cafe, by fuch information as I can procure ; efpecially When at the fame time I declare my intention of a fubmiflive acquief- cence in whatever they refolve for or againft what I offer.
Subjefi of this Enquiry
The fubjetf, therefore, of our prefent difquifition fhall be. How ' tail the Parliament of England may think it reasonable to
intermeddle with the affairs of Ireland, and bind us by
LAWS MADE IN THEIR HOUSE.
And feeing the right which England may pretend to, for binding us by their atts of parliament, can be founded only on the imaginary title of conqueft or purchafe, or on precedents and matters of record ; we fhall enquire into the following particulars.
Firft, How Ireland became a kingdom annexed to the crown of England. And here we fhall at large give a faithful narrative of the firft expedition of the Britons into this country, and King Henry the fecond’s arrival here, fuch as our befthiftorians’ give us.
Secondly, We fhall enquire, whether this expedition, and the Englifh fettlement that afterwards followed thereon, can properly be trailed a conqueft? Or whether any victories obtained by the Englifh, in any fucceeding ages in this kingdom, upon any rebellion may be call’d a conqueft thereof ?
Thirdly, Granting that it were a conqueft, we fhall enquire what title a conqueft gives.
Fourthly, We fhall enquire what conceffions have been from time to time made to Ireland, to takeoff what even the moft rigorous af- fertors of a conqueror’s title do pretend to. And herein we fhall fhew by what degrees the Englifh form of government, and the Englifh ftatute laws, came to be received among us : And this fhall appear, to be wholly by the confentof the people and parliament of Ireland.
Fifthly, We fhall enquire into the precedents and opinions of the learned in the laws, relating to this matter, with oblervalions thereon.
* Bijhop of Derry in the Houfe of Lords , and prohibiting exportation of »ur woollen manufacture in the Houfe of Commons •
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Sixthly, We {hall confider the reafons and arguments that may be farther offered on one fide and the other ; and mall draw fome gene¬ ral concluiions from the whole.
Britain’/ firji expedition into Ireland.
As to the firft, We fhall find the hiftory of firft: expedition of the Englifh into Ireland, to be briefly thus : In the Reign of King Henry the Second, Dermoc Fitzmurchard, commonly called Mac-Morrogh, prince of Leinfter, who was a man cruel and ©ppreflive, after ma¬ ny battles with other princes of Ireland, and being beaten and put to flight by them, applied for relief to King Henry the Second, who was then bulled in Aquitaine ; the King was not then in fuch circurn- ftances as to afford him much help : However thus much he did for him: By letters patents he granted licenfe to all his fubjefts through¬ out his dominions, to aflift the faid prince to recover his dominions. Thefe letters patent are to be feen in f Giraldus Cambrenfis, who was Hiftoriographer and Secretary to King Hen. II. and accompanied him in his expedition into Ireland, and from him it is that we have this relation. The Irilh prince brought thefe letters into England, and caufed them to be read in the audience of many people ; beating up, as it were, for volunteers aud free adventurers into Ireland. At length, Richard Earl of Strigul (now Chepftow in Monmouthfhire) fon of Earl Gilbert, called Strongbow, agreed with him, to afiift him in the recovery of his country, on condition that Dermot ftiould give him his eldeft daughter in marriage, and his kingdom of Leinfter af¬ ter his death. About the fame time Robert Fitz-Stephen, Governor of Aberlefie in Wales, agreed likewife with Dermot to help him, on condition that he would grant to him and Maurice Fitzgerald in fee ' the city of Wexford, with two cantreds or hundreds of land near adjoining.
Thefe adventurers afterwards went over, and were fuccefsful in treat¬ ing with the Irilh, and taking Wexford, Waterford, Dublin, and other Places. Whereupon Earl Richard Strongbow married Dermot’s daughter, and according to compact, fucceeded him in his kingdom.
Henry II. comes into Ireland.
A little after the defcent of thefe adventurers, King Henry II. Iiim- felf went into Ireland with an army, in Nov. 1172, and finding that his fubje<fts of England had made a very good hand of their expedi¬ tion, he obtained from Earl Richard Strongbow a furrender of Dublin, with the cantreds adjoining, and all the maritime towns and caftles. But Strongbow and his heirs were to enjoy the refidue of DermoPs principality.
Irifh fubmit to him.
King Henry II. landed at Waterford from Milford in Pembrokeftiire, and flaying there fome few days, (fays Giraldus Cambrenfis) Dermod, King of Corky came to him and freely fucore fealty and fubjettion to the King ef England,
•f Giraldus Ca?nlr. Hib . ex pug* lib- 1. c. 1, .
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^rorii thence he went to Lifmore, and thence to CafheJ, where Dunaldus, King of Limerick, alfo made his fubmifion to the King. The like did all the Nobility and Princes in the fouth of Ireland.
Afterwards he marched to Dublin, and there the princes of the adjacent countries came ro him, and by profefions of loyalty and fib- jcftion , obtained peace from the King. Thus Cambrenfis in his Hibernia Expugnata ; and there he mentions the feveral princes that came in, viz. Mac-^ihaghlin, King of Ophaly, O’Carrol, King of Uriel (now Lowth) O’Rourk, King of Meath, Rodrick O’Connor, King of Connaught, and Monarch as it were of the whole ifland, with divers Others, who by the inof folemn ties of fealty and fuhjeliion bound themfelves to the King , and, in the fngle per fan of Roderick , King of Connaught , as being monarch of the whole if and, were all reduced to the fate of fubjefts : Indeed there were few perfons of rank or confequcnce in the if and, who did not do homage to his Majefy as their liege Lord.
The fame relation we have from Roger Ho'veden (Anhal. pars poller, fol. Joi.) About the kalends of November 1172, (faith he) King Henry II. of England, took {hipping for Ireland at Milford, and landed at Waterford, and there he was met by the Kings of Cork, Limerick , Ophaly, Meath, and almof all the great ?nen of Ireland. And a little afterwards, in the fame place, fpeaking of King Henry the Second’s being at Waterford, In this place the king of England was met by ail the Archbifkopsy Bijbops , and Abbots of all Ireland, who received hint to be King and Lord of Ireland, [wearing allegiance to him and to his heirs, and that he Jhould have the power of governing than for ever ; and upon this they gave him their charters. After the example of the Clergy , the Kings and Chiefs of Ireland, mentioned above, received Henry King of Eng* laud, in like manner , to be Lord and King of Ireland \ and beca?ne his ful¬ fils, and [wore allegiance to him and his heirs againf all others.
Matthew Paris likewife in his hiftory, fpeaking of King Henry II* being in Ireland, faith, the Archbijhop and B if oops received him to be Lord and King , fwore allegiance, and did hhn homage ,
John Brampton, Abbot of Jorna, in his HHlorla Jornalenfi, page. 1070, fpeaking of Henry II. hath thefe words, all the Archbijhops 4 Bifhops, and Abbots of Ireland came to the King of England, and received him for King and laird of Ireland, J wearing fealty to him and his heirs for ever. The Kings alfo and princes of Ireland, did in like manner re¬ ceive Henry King of England, for Lord of Ireland, and became his men, and did homage, and fwore fealty to him and his heirs againlp all men. And he received letters from them with their feals pendent in manner of charters, confirming the kingdom of Ireland to hin; and his heirs ; and teftifying, that they in Ireland had ord&ined him and his heirs to be their King and Lord of Ireland for ever. After which, lie returned into England in April following, viz. April 1 173,
Ireland whether ever conquered ,
I come now to enquire into our particular propofed, viz. Whether Ireland might be properly faid to be conquered by King Henry II. or by any other Prince in any lucceeding rebellion. And here we are to underhand by conqueft, an Acquisition of a kingdom by fos.cs.
OF ARMS, TO WHICH, FORCE LIKEWISE HAS BEEN OPPOSED. If WC
we are to underftand conqueft in any other lenfc, 1 Tee not of what ufe it can be made againft Ireland’s being a free country. I know con - queftus fignifies a peaceable acquifition, as well as an hoftile i'ubjugat- ing of an enemy. Vid. Spelman's Glof. And in this fenfe William I. is called the Conqueror, and many of our Kings have ufed the epo- cha after the conqueft. And fo likewife Henry II. lliled himfelf Con¬ queror and Lqrd of Ireland : But that his conqueft was no violent fubjugation of this kingdom, is manifeft from what foregoes : For here we have an intire and voluntary fubmiflion of all the ecclefiafti- cal and civil ftates of Ireland, to King Henry II. without the lead hoftile ftroke on any fide ; we hear not in any of the chronicles of any violence on either part, all was tranfa&ed with the greateft quiet, tranquillity, and freedom imaginable. 1 doubt not but the barbarous people of the iftand at that time wTere ftruck with fear and terror of King Henry II’s powerful force which he brought with him ; but dill their eafy and voluntary fubmilftons exempt them from the confequents of an hoftile conqueft, whatever they are ; where there is no oppo- fition, fuch a conqueft can take no place. '
I have before taken notice of Henry IPs ufmg the ftile of C:nqus~ ror of Ireland%. 1. prefume no argument can be drawn from hence, for Iceland’s being a conquered country ; for we find that many of the Kings of England have ufed the sera of poft Conquejium ; Edward III/ was the firft that ufed it in England, and we frequently meet with Henry the fourth fmee the conqueft, & c. as taking the Norman inva- fion of William I. for a conqueft. But I believe the people of Eng¬ land would take it very ill to be thought a conquered nation, in the ftnfe that feme impofe it on Ireland ; And yet we find the fame reafon in one cafe as in the other, if the argument from the King’s idle of Conqueror prevail. Nay, England may be faid much more properly to be conquered by William I. than Ireland by Henry II. For we all know with what violence and oppofition from Harold, King William obtained the kingdom, after a bloody battle nigh ballings. Whereas Henry II. received not the leafl oppofition in Ireland ; all came in peaceably, and had large conceftions made them of the like laws and liberties with the people of England, which they gladly accepted, as we fhall fee hereafter. But I am fully fatisfied, that neither King Wil¬ liam I. in his acquifition of England, or Henry II. in his acqueft of Ireland, obtained the leaft title to what fome would give to conquerors. Though for my own part, were they conquerors in a fenfe never fo ftridl, I Ihould enlarge their prerogative very little or nothing thereby, as fha.ll appear more fully in the fequel of this difeourfe.
Another argument for Henry lid’s hoftile conqueft of Ireland is ta¬ ken from the oppofition which the natives of Ireland gave to the firft adventurers, Fitz-Stephens, Fitz Gerald, and Earl Strongbow, and the Battles they fought in alibiing Mac-Mcrrogh, Prince of Leinfter, in the recovery of his principality.
’Tis certain there were fome confii&s between them and the Irifh, in which the latter were conftantly beaten; but certainly the con- quefts obtained by thole adventurers, who came over only by the
f Mr. S el den will not allow that ever H. II. ufed this file, Tit. Hon. Par. 2, c. 5. felt 26.
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King’s licenfe and permiflion, and not at all by his particular com¬ mand (as is manifeft from the words of the letters patents of licenfe re~ cited by Giraldus Cambrenfis, Hib. Expug. page 760. Edit. Francof. 1603. Angl. Norm. Hiber. Camd.) can never be called the conqueft: of Henry II. efpecially confidering that Henry II. himfelf does not ap¬ pear to have any defign of coming into Ireland, or obtaining the do¬ minion thereof, when he gave to his lubjcds of England this licenfe of aftifting Mac-Morrogh. But I conceive rather the contrary ap¬ pears, by the ftipulations between Mac-Morrogh and the adventur¬ ers, and efpecially between him and Strongbow, who was to fucceed him in his principality.
. * * '* 1 -• ’ • ' ' . i, . ; . ’ ' ’ T- it •
Supprefpng rebellions , whether a conqitejl ,
From what foregoes, I prefume it appears that Ireland cannot pro¬ perly be faid fo to be conquered by Henry the fecond, as to give the parliament of England any jurifdidion over us j it will much more eafily appear, that the Englilh vidories in any l’ucceeding rebellions in that kingdom, give no pretence to a conqueft : if every luppreflion of a rebellion may be called a conqueft, I know not what country will be excepted. The rebellions in England have been frequent : in the con- tefts between the houfes of York and Lancafter, one fide or other mult needs be rebellious. I am fure the commotions in King Charles the firft’s time, are Riled fo by moR hiRorians. This pretence therefore of conqueR from rebellions, has fo little colour in it, that I fhall not infift longer on it: I know conqueR is an hateful word to Englifh ears ; and we have lately feen a book J undergo a ievere cenfure, for offer¬ ing to broach the dodrine of conqueR in the free kingdom of England,
^‘J\ ... -
What title is obtained by conqueft .
But, to take off all pretence from this title by conqueR, I come in the third place to enquire, what title conquest gives by the law of Mature and reason.
/ d, ^ . 7 * ‘ ' 7 .
No title gained by an unjuft conqueft P
And in this particular I conceive,- that if the aggreffor or infulter in¬ vades a nation unjuftly, he can never thereby have a right over the conquered : This I fuppofe will be readily granted by all men : if a vil¬ lain with a piRol at my breaR, makes me convey my cRate to him, no one will fay that this gives him any right: And yet juR luch a title ast this has an unjuR conqueror, who with a fword at my throat forces me into fubmiffion ; that is, forces me to part with my natural eftate, and birthright, of being governed only by laws to which I give my confent, and not by his will, or the. will of any other.
What title by a juft conqueft.
Let us then fuppofe a juft invader, one that has right on his fide to attack a nation in an hoftile manner ; and that thole who oppofe him are in the wrong: let us then fee what power he gets, and oyer whore-.
X Bifbop of Salijbarfs pajloral letter*
None over the ajfpjlers in the lonqurjt.
Firft, ’tis plain he gets .by his conqueft no power over thofe who conquered with him ; they that' fought on his fide, whether as private foldiers or commanders, cannot fuller by the conqueft, but mull at leaft be as much freemen, as they were before: if any loft their free¬ dom by the Norman conqueft, (fuppofmg King William the Firft had right to invade England) it was only the Saxons and Britains, and not the Normans, that conquered with him. In like manner fuppofiiig Henry II. had a right to invade this ifland, and that he had been op- pofed therein by the inhabitants, it was only the antient race of . the Irifti, that could fuffer by this fubjugation : the Englilh and Britains, that came over and conquered with him, retained all the freedoms and immunities of free-born fubjedts ; they rior their defendants could not in reafon lofe thefe, for being fuccefsful and vidtoriouj^; for fo, the ftate of both conquerors and conquered (hall be equally flavifh. *Novr >tis manifeft that the great body of the prefent people of Ireland, are the progeny of the Englilh and Britains, that from time to time have come over into this kingdom ; and there remains but a mere handful of the antient Irifti at this day ; I may fay, not One in a thoufand : fo that if I, or any body clfe," claim the : like freedoms with the natu¬ ral born fubjedts of England, as being defended from them, it will be impoflible to prove the contrary. 1 conclude therefore, that a juft conqueror gets no power, but only over thole who have adtually ailift- ed in that unjuft force that is ufed againll him.
’ . . ’i . i - t , •* * i • r „ d . .» t -i« it . m! 4 n
None over the non-oppofers .
And as thofe that joined with the conqueror in a juft invafion, have loft no right by the conqueft ; fo neither have thofe of the country who oppoled him not : This ferns fo reafonable at firft propofal, that it wants little proof. All that gives title in a juft conqueft, is the op- pofers ufmg brutal force, and quitting the law of reafon, and ufing the law of violence ; whereby the conqueror is entitled to ufe him as a beaft ; that is, kill him, or enftave him. . .
JuJl conqueror inti tied to the lives of the oppofers.
Secondly, Let us confider what power that is, which a rightful con¬ queror has over the fubdued oppofers: And this we {hall find extends little farther than over the lives of the conquered ; I 'fay, little farther than over their lives ; for how far it extends to their eftates, and that it extends not at all to deprive their pofterity of the freedoms and im¬ munities to which all mankind have a right, J ftiall ftiew prefently. That the juft conqueror has an abfolute power over the lives and liber¬ ties of the conquered, appears from hence ; becaufe they conquered, by putting themfelves in a ftate of war by ufing an unjuft force, have thereby forfeited their lives. For quitting reafon, (which is the rule between man and man) and ufmg force (which is the way of beafts) they become liable to be deftroyed by him againft whom they ufe force, as any favage wild beaft that is dangerous to his being.
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And this is the cafe of rebels in a fettled commonwealth, who for¬ feit their lives on this account. But as for forfeiting their eftates, it depends on the municipal laws cf the kingdom. But we are now enquiring what the cojaiequen.ee will be between two contefting na¬ tions.
Which brings me to confider bow far a juft conqueror has power over the polterity and eftates of the conquered.
J'ft conqueror how far empowered over the pofterity of the oppofers.
As to the pofterity, they not having joined or affifted in the forci¬ ble oppofition of the conquerors juft arms, can l.ofe no benefit there¬ by. It is unreafonable any man Ihould be punifhed but for his own fault. Man being a free agent, is only anfwerable for his own deme¬ rits ; and as it would be highly unjuft to hang up the father for the fons offence, fo the converfe is equally unjuft, that the fon fhouldfuf- fer any inconvenience for the father’s crime. A father hath not in himfelt a power over the life or liberty of his child, fp that no a<ft of his can poflibly forfeit it. And though we find in the municipal law* of particular kingdoms, that the fon lqfes the father’s eftate for the rebellion or other demerit of the father, yet this is contented and agreed to, for the public fafety, and for deterring the fubje&s fronv certain enormous crimes that would be highly prejudicial to the com¬ monwealth. And to luch conftitutions the fubjeds are bound to fubr mit, having contented to them, tho’ it may be unreafonable to put the like in execution between nation and nation in the ftate of nature : For in fettled governments, property in eftates is regulated, bounded and determined by the laws of the commonwealth, contented to by the people, fo that in thefe, ’tis no injuftice for the fon to Jofe his pa* trimony for his father’s rebellion or other demerit.
How far over their eftates ,
If therefore, the pofterity of the conquered are not to fuffer for the tmjuft oppofition given to the victor by their anceftors, we fhall find lit-» tie place for any power of the conquerors over the eftates of the fub- dued. The father by his milcarriages and violence can forfeit but his own life, he involves not his children in his guilt or deftru&ion, His goods, which nature (that willeth the prefervation of all mankind as far as poflible) hath made to belong to his children to fuftain them, do ftill continue to belong to his children. ’Tis true indeed, it ufually happens that damage attends unjuft force ; and as far as the repair of this damage requires it, fo far the rightful conqueror may invade the goods and eftate of the conquered ; but when this damage is made up, his title to the goods ceafes, and the refidue belongs to the wife and children of the fubdued.
It may feem a ftrange do&rine, that any one fhould have a power over the life of another man, and not over his eftate ; but this we find every day, for tho’ l may kill a thief that fets on me in the high way, yet I may not take away his money ; for it is the brutal force the aggreflor has ufed, that gives his adversary a right to take away his life, as a noxious creature. But ic is only damage fuftained, that gives title to another man’s goods.
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Practice of conquerors other wife.
It mud be confefted, that the practice of the world is otherwlfe, and vet commonly fee the conqueror (whether juft or unjuft) by the force he has over the conquered, compels them with a fword at their breaft to hoop to his conditions, and fubmit to fuch a government as he pleafes to afford them. But we enquire not now, what is the practice, but what right there is to do fo. If it be faid the conquered fubmit by their Qwn confent t Then this allows confent neceffary to give the conqueror a title to rule over them. But then we may enquire whether promiies extorted by force without right, can be thought confent, and how far they are obligatory ; and I humbly conceive they bind not at all. He that forces my horfe from me, ought prefently to reftore him, and I have ftill a right to retake him : So he that has forced a pro- mile from me, ought prefently to reftore it, that is, quit me of the obligation of it, or I may chufe whether I will perform it or not : For the law of nature obliges us only by the rules Ihe prefcribes, and therefore caqnot oblige me by the violation of her rules ; fuch is the extorting any thing from me by force.
From what has been faid, I prefume it pretty clearly appears, that an unjuft conqueft gives no title at all ; that a juft conqueft gives power only over the lives and liberties of the adtual oppofers, but not over their pofterity or eftates, othery/ife than as before is mentioned ; and not at all over thofe that did not concur in the oppofttion.
They that defire a more full difquifition of this matter, may find it at large in an incomparable treatife concerning the True Original, Extent, and End of Civjl Government, Chap. 16. This dif- courfe is faid to be written by my excellent friend, John Locke, Efq; whether it be fo pr not, I know not ; this I am fure, whoever is the author, thegreateft genius in Chriftendom need not difown it.
But granting that all we have faid in this matter is wrong, and granting that a conqueror, whether juft or unjuft, obtains an abfolute arbitrary dominion over the perfons, eftates, lives, liberties and for¬ tunes of all thofe whom he finds in the nation, their wives, pofterity, &c. fo as to make perpetual flaves of them and their generations ta come. '
CqnceJJims granted by a conqueror, whether obligatory.
Let us next enquire whether conceftions granted by fuch a victorious hero, do not bound the exhorbitancy of his power, and whether he be not obliged ftri&ly to obferve thefe grants.
And here I believe no man of common lenfe or juftice, will deny it ; none that has ever confidered the law of nature and nations, can pof- fibly hefitate on this matter ; the very propofmg it, ftrikes the fenfe and common notions of all men fo forcibly, that it needs no far¬ ther proof. I fhall therefore inlift no longer on it, but haften to con- fider how far this is the cafe of Ireland ; And that brings me naturally to the fourth particular propofed, viz. To fhew by precedents, records, and liiftory, what concellions and grants have been made from time to time to the people of Ireland, and by what fteps the laws of Eng¬ land came to be introduced into this kingdom*
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What concejjions have been made from the crovjn of England to the king¬ dom <3/ Ireland, by Henry II.
We are told by Matth. Paris, Hiftoriographer to Henry III. that Henry II.' a little before he left Ireland, in a public altembly and council of the Irilh at Lifmore, did caufe the Irifli to receive, and fwear to be governedby the laws of England : * King Henry , (faith he) before be left .'Ireland, called an ajjemhly at Lifmore , where the laws of England were cheerfully received by all , and confirmed with the fo- lemnity of an oath. ,
And not only thus, but if we may give credit to Sir Edward Coke, in the 4th Initit. cap. 1. and 76, and to the infcription to the Irilh Modus Tenendi Parliamentary , it will clearly appear, that Henry II. did not only fettle the Laws of England, in Ireland, and the jurifdiCtion ecclefiaftical there, by the voluntary acceptance and allowance of the nobility and clergy, but did likewife allow them the freedom of holding of parliaments in Ireland, as a feparate and diftin$ kingdom from Eng¬ land ; and did then fend them a Modu y to direct them how to hold their parliaments there. The title of which modus runs thus ;
Henry King of England , Conqueror and Lord of Ireland , tAc. fends this form of holding parliaments to the Archbifbops , Bijhops , Abbots , Priors , Earls , Ba vns, JuJlices, V if counts. Mayors , Senefchalj , Magif- trates , and all his loyal [ubjefits of Ireland.
Imprimis , the calling of parliament ought to be forty days before .
And fo forth.
This Modus is faid to have been fent into Ireland by Henry II for a direction to hold their parliaments there. And the lenfe of it agrees for the molt part with the Modus Tenendi Parliam. in England, faid to have been allowed by William the Conqueror, when he obtained that kingdom ; where tis altered, ’tis only to fit it the better for the king¬ dom of Ireland.
I know very well the antiquity of this Modus, fo faid to be tranf- mitted for Ireland by Henry II. is queftioned by fome learned anti* quaries, particularly by Mr. Seldenf and f Mr. Pryn, who deny alfo the Engliih Modus as well as this.' But on the other hand, my Lord. Chief Juftice Coke, in the 4th Inflit, page 12 and 349, does ftrenuouf- )y affert them both. And the late Revd. and learned Dr. Dopping, Bilhop of Meath, has publilhed the Irilh Modus, with a vindication o,f its antiquity and authority in the preface.
There feems to me but two objections of any moment raifed by Mr. Pryn againft thefe Modi. The one relates both to the Englifh and Jrifli Modus ; the other chiefly (trikes at the Irifh. He fays, the name parliament, fo often found in thele Modi, was not. a name for the great council of England known fo early as thefe Modi pretend to.
* Vid. Matth. Paris , ad An. 1172. Vit. H. 2.
t Tit. Hon. Par. 2. c. 5. feA. 2 6. Edit, Land. An. 1671,
t Againft Coke's 4 th Inflit . c . 76. _ .
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I confefs I am not prepared to difprove this antiquary in this parti¬ cular • but to me it feems reafonable enough to imagine that the name parliament, came in with William the Conqueror: ’Tis a word per¬ fectly French, and I fee noreafon to doubt its coming in with the Nor¬ mans. The other objection affects our Irifh Modus, for he tells us, that Sheriffs were not eftabliflied in Ireland in Henry II’s times, when this Modus was pretended to be fent hither, yet w*e find the word Vice- comes therein. To this I can only anfwer, that Henry II. intending* to eftabliih in Ireland the Englifh form of government, as the firft, and chief ftep thereto, he fent them directions for holding of parliaments, deligning afterwards by degrees and in due time to fettle the other conititutions, agreeable to the model of England. If therefore, England had then Sheriffs, we need not wonder to find them named in the Irifh Modus, tho’ they were not as yet eftabliflied among 11 us, for they were defigned to be appointed foon after, and before the Modus could be put regularly in execution ; and accordingly we find them eftabliflied in fome counties of Ireland in King John’s time.
This Irifh Modus is faid to have been in the cuftody of Sir Chrifto- pher Prefton of Clane, in Ireland, Ann. 6 Hen. IV. and by Sir John Talbot, Lord Lieutenant of Ireland, underlying Henry IV. It was exemplified by Infpeximus under the great leal of Ireland, and the ex¬ emplification was fometime in the hands of Mr. Hackwel of Lincoln* s.- Inn, and by him was communicated to Mr. Selden. The tenor of which exemplification runs thus :
Henry , by the grace of God% King of England and France , and Lord of Ireland , to all to whom theje prefents (hall come, greeting. IVe have ex¬ amined the tenor of fever al articles , ( written in a parchment-roll found in the cujlody of Chriflopher Prejlon , Efq j at the time of his being lately arrejled in the town of Clare by ike Deputy of our trujiy and beloved John C V albot of HalomJbirey Knight , the Lieutenant of our lately acquired terri¬ tory of Ireland , in our own prefence , and before our council in the faid territory , at the town ef Trim , on the ninth day of January laj} pa/l) in thefe words :
1‘ The method of holding parliaments . Henry King of England , con - “ queror and Lord of Ireland , fends this form to the Archbifhops , iAc.n as before in p. 1 6.
Then follows the Modus, agreeable in moft things with that of England, only fitted to Ireland. Then the exemplification concludes :
Now we have thought proper by the tenor of thefe prefents to caufe an ex emplif cation to he made of the tenors of the aforejaid articles , by and with the confent of our above-named Lieutenant , and of our council named above , and have ordered thefe our letters patent to be made. IVit- nejs our aforefaid Lieutenant at Trim , on the nth of January , in the fixth year of our reign. By the Lieutenant and Council.
Now we can hardly think it credible, (fays the Bilhcp of Meath) that an exemplification could have been madefo folemnly of it by King Henry IV. and that it fhould refer to a Modus tranlmitted into Ireland by King Henry II- and affirm that it was produced before the Lord Lieutenant and Council at Trim, if no fuch thing had been done: 'This were to call in queflion the truth of all former records andtran- LClions, and make the exemplification contain an egregious falihood in the body of it.
4
u
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The Revd. Bifhop of Meath, in his fore-cited preface, does believe that he had obtained the very original record, faid by my Lord Coke to have been in the hands of Sir Chriftopher Prefton : It came to that learned prelate’s hands amongft other 'papers and manufcripts of Sir William Domville’s, late Attorney-General in this kingdom, who in his life-time, upon an occafional difcourfe with the Bilhop concerning it, told him, that this record was bellowed on him (Sir William Dom- ville) by Sir James Cuffe, late Deputy Vice-Treafurer of Ireland ; that Sir James found it among the papers of Sir Francis Aungier, Mader of the Rolls in this kingdom ; and the prefent Earl of Long¬ ford (grandfon to the faid Sir Francis Aungier) told the Bifhop, that his faid grandfather had it out of the treafury of Waterford.
Whild 1 write this, I have this very record now before me, from the hands of the faid Bilhop of Meath’s fon, my nephew, Samuel Dop- ping ; and I mull confefs it has a venerable antient appearance, but whether it be the true original record, I leave on the arguments pro¬ duced for its credit by the faid Bifhop.
Parliament s very early in Ireland.
This I am fure of, that whether this be the very record tranfmitted hither by King Henry II. or not; yet ’fis mod certain from the una¬ nimous conceiiions of all the fore-mentioned antiquaries, Coke, Selden, Pryn, &c. that we have had parliaments in Ireland veryfoon after the invafion of Henry II. For Pryn confelfes that * King Henry II. after his conquell of Ireland, and the general voluntary fubmiflion, ho¬ mages, ana fealties of mod of the Irifh Kings, Prelates, Nobles, Ci¬ ties and People, to him, as to their Sovereign Lord and King, Anno 1 170, [it Ihould be 1 1 72] held therein a general council of the Clergy at Cafhel, wherein he rectified many abufes in the Church, and edab- lilhed fundry ecclefiadical laws, agreeable to thole in the Church of England : Labouring by all means to reduce the Jlate of that Church to the form of the Englift ; to which the Irilh clergy-promifed conformity, and to obferve them for time to come, as J Giraldus Cambrenfis, who was then in Ireland, and other f Hidorians, relate : And that in every particular thefatne obfervances might unite both kingdoms^ that is England and Ireland,) they all every vohere, with perfect unanimity by common confent , and with etjual chearfulnefs , fubmit to the King s phafure ; every thing , therefore , being, fettled in this manner , in an ajjembly held at LiJ - more, the laws of England were cheerfully accepted by all , and eflab lift¬ ed with the folemnity of an oath , fays Mat. Paris.
Original Compafi for Ireland.
Can any conceffion in the world be more plain and free than this ? We have heard of late much talk in England of an original compact between the King and people of England ; I am fure ’tis not polfible
* Againf the 4 th Inf. c. 76. p. 249.
t ‘Topograph. Ilibern . /. 3. c. 18. Hib. Expug. 1. 11. c. 33, 34.
•J Hoveden Annal. pars Port. p. 302. Brampton Chr. Col. 107 1. Knigh¬ ton de Even. Angl. c. c. io. col. 2394, 2395. Pol. Virg. Hijl. Angl. /. 13.
. . . ( '9 )
to Ihew a more fair original compact between a King and people, than this between Henry II. and the people of Ireland, That they should
-ENJOY THE LIKE LIBERTIES AND IMMUNITIES, ANDBH GOVERNED BY The SAME MILD LAWS, BOTH CIVIL AND ECCLESIASTICAL, AS THE
people of England.
From all which, it is manifeh, that there were no laws impofed on the people of Ireland, by any authority of the parliament of England ; nor any laws introduced into that kingdom by Henry II. but by the confent and allowance of the people of Ireland : For both the civil and ecckfiadical date were fettled there, Regime fublimttatis. authoritale , folely by the King’s authority, and their own good wills,, as the Irilh flatute, i i..Eliz. c. i . exprefles ;it. ; And not pnly the laws of pngland, biit the manner oflioldihg parliaments in.Irda|nd to make laws of their own (which is the foundation and bulwark of the people’s liberties and properties) was directed and eftablifhed there by Henry II. as if he .were refolved that no other perfon or .perfons Ihould be the founders of the. government of Ireland, but himfelf and the confent of the people, who Submitted themfclves, to him againh ,all perfons what¬ soever. r , I
Let us now fee by what farther degrees, the government of; Ireland .grew up conformable to that of England. . Aut-T
King John made 'King c/'Trekncli ,
About the twenty-third year of. Henr)’- II. (whic}i > V/as within, five years 'after, his return from Irel.apd) he created his younger fop John, 'King of Irejand, pt- a parIia,meAit:. heiTat Oxford. r,,.\oon .after King John being then about, twelve ..ye^s -pf. age, ;came0 intpjrelan.d, from Milford . tp,'. .Water ford, Aas his/at'her'hni fprjnerly .done.. . The Irilh Nobility and'Geiitry i,mtned;atet^.,4;epairG.d to him; but being," re¬ ceived by hinri und his retinue wfthbbme fcorn and derifion, .by reafon of their Ipftg. rude Beards, which, t, bey wore (Ays Giraldus, Cambrenfis, Hib,. Expugi Gap.. ^5.) of great length: and fize* af{er the manner of their country, they, took fuch. offence thereat, that theydepartfd in much difc.onten.t ; irw^i.cji was()the occafibn „of . the ^young.KingA 'flaying fo Ihort a time in IrgAfftb as he did. this his firft;time of being. here.
By this Ireland made :an abfolute feparate Kingdom.1
And here, before We proceed’ any farther, we fhall obferve, that by this, donation of the. kingdom. ;Qf Ireland to King; John, Ireland was mod eminently fet apart ag.airft as. a; feparate and didimd kingdom by Itfelf from .the kingdom of England 5, and did fo continue, until the kingdom of England defcended and came Unto King John, after the death of his brother Richard I. King .of England, which was about twenty-two years after his being made King of Ireland ; during which fpace pf tweijty-two years, both whild his father Henry II. and liis brother Richard, h, were living and reigning; King J,ohh made di¬ vers grants and charter? to his fubje<5ts of Ireland, which are yet in be¬ ing in this kingdom ; wherein he biles himfelf Lord of Ireland , (the condanjt bile till Henry V Ill's time;) and in others, Lord of Ireland , and Earl of Meritonia. By which charters both the city of Dublin, and divers other corporations enjoy many privileges and franchifes to
/ 20 * )
to rfehis. day. But after the laid grant of the kingdom of Ireland to King John, neither his father Henry II. nor his brother Richard I. Kings of England, ever (tiled themfelves*, during their lives, King or Lord of Ireland ; for the * dominion and regality of Ire¬ land was wholly and feparately veiled in King John, being abfo- lutely granted unto him without any refervatioii. And he being created King in the parliament at Oxford, under the (tile and title ot Lord of Ireland, enjoyed all manner of kingly jurifdi&ion, prehemi- nence, and authority royal, belonging unto the imperial date and ma- jefty of a King, as are the exprefs words of the Irrfh Statute, 33 Henry VIII. c. t. by which Statute the (tile of Lord was changed to that of King of Ireland.
Let us then fuppofe that Richard T. King John’s elder brother, had not died without idue, but that his progeny had fat on the throne of England, in a continued fuccedion to this day : Let us fuppofe like- wife the fame of King John’s progeny, in relation to the throne of Ireland ; where then had been the fubordination of Ireland to the par¬ liament, or even tb the King of England ? Certainly no fuch thing could have been then pretended : Therefore if any fuch fubordination there be, it rnuft arife from fomething that followed after the defeent of England to King John ; for by that defeent England might as properly be fubordinate to Ireland, as the converfe ; Ireland being veiled in the royahperfon of King John, two and twenty years before his acceflion to the. crown of England, and being a more ancient king¬ dom than the kingdom -of EhglancL As the Englifh orators in the council of Cohlthhce, ,A:ir 1417 * confeded and alleged, as an argu¬ ment in- the bonteil between ■Hfen-ry-”' Vth’s- Legates, and thofe of Charles VL* King1 of Fiance, for precedence, It is perfectly, clear (lay they) f according to 'Albert lie Greats and Bartholomew , concerning the rights of fates , tbat\ the while World being divided into three 'parts , Eu¬ rope, Af a, and Africa, (for America wa’s not then difeovered) : Europe is divided into four kingdoms , thofe of Rome, ' Confantinople, Ireland, (now transferred to the ‘EngRJb ) and Spain. Hence it follows * that the Kmg of England, dflddns 'Kingdont, ate aMtoigfl the vtof difingnifjed Arid arkieltt Kings and kingdoms of all Europe. The antiquity and precedence of the King of England, was allowed him wholly on thfc* account of his kingdom of Ireland. v,< - \ . .t. '> -
Ireland in what fenfe annexed to England.
Perhaps it will be fat d, that this fubordination of the kingdom of Ireland, to the kingdom of England, proceeds from Ireland’s being annexe^ to, and as It were united with the imperial crown of England, by fev^ral a6ts of parliament both in Englantfand Ireland, fince king John’s time. But how far this operates, 1 (hall enquire more fully hereafter ; I (hall only at prefent obferve, that I conceive little more is effected by thefe flatutes, than that Ireland fhall npt be aliened or feparated from the king of England, who cannot hereby difpofe of it otherwife than in legal fuccedion along with England ; and that
* S Aden's fit. Hon. Par. 1. C. 8. Sell. 5. Ufoer, Archbijhop of Ar¬ magh, of the religion of the ancient Irifh, Cap. ii.
f AR. Co mil* Cinfant. Sef 28. MS, in Bib, Reg. not. in the printed Alls.
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whoever is king of England, is ipfo fa do King of Ireland, and the fub. jecfcs of Ireland are obliged to obey him as their liege lord.
King John comes afecond time into Ireland. The people Jubmit to him ,
To proceed therefore. After both crowns were united, on the death of Richard I. without ilTue, in the royal perfon of king John : He, about the twelfth year of his reign of England, went again into Ireland, viz. the twenty-eighth day of June, 1210; and Matth. Paris tells us, page 220, After his arrival at the city of Dublin , there met him more than twenty petty Princes of that country , who ftruck ‘with' the greateft fear, did him homage, and fivore allegiance. There alfo the King caufed them to.efablif '? the laws and cuftoms of England , appointing l rifcoiints, and other MagiJl rates , to govern the people of that kingdom ac¬ cording to the Englifb laws. x ;
Cone efpons from Henry III.
His fon King Henry III. came to the crown the 19th of 0<5Iober, 1216, apd in November following he granted to Ireland a Magna Charta, dated at Briftol 1 2th November, the firft year of his reign. ’Tis prefaced, that for the honour of God, and advancement of Holy Church, by the advice of his council of England, (whofe names are particularly recited) he makes the following grant to Ireland ; and then goes qn exa&ly agreeable to the Magna Charta which he granted to England ; only in ours we have Civitas Dublin. <b Avenliffee , inhead of Civitas London , 6' Thamefis , with other al¬ terations of the like kind where needful. But ours is eight years older than that which he granted to England, it pot being till the ninth year of his reign, and ours is the firft year. This Magna Charta of Ireland concludes thus ; — Becaufe we have not hitherto had a feal, we- have caufed the prefe?it Charter to be foaled with the feali of our venerable fat hep, of Lord Walter, Legate of the Apofolic See, and of William jyLarefchall , Earl of Pembroke, our Governor , and Governor of our King- dom. Witnefs all who are mentioned above, and many others * Given under the hand of the afore faid Lord Legate, and William Marefchall, at Briftol, oil the 1 2th day of November and firft year of \our reign. An ancient copy of this Magna Charta of Ireland is to be fqund in the Red Book of Exchequer, Dublin.
In February following, in the firft year likevvife of his reign, by- advice of all his faithful counfellors in England, to gratify the Irifh. (fays X Pryn) for their eminent loyalty to his father and him, he grant¬ ed them out of his fpecial Grace, that they and their heirs for ever fhould enjoy the liberties granted by his father and himfelf to the realm of England ; which he reduced into writing, and fent fealed thither under the feal of the Pope’s Legate, and W. Earl Marfhall, his Governor, becaufe he had then no feal of his, own. This, as 1 con¬ ceive, refers to the forementioned Magna Charta Hibernse. The re¬ cord as recited by Mr. Pryn, here follows:
§ The King to the Archbifbcps, Bifhops , Abbots, Earls, Barons , Eftquires 9 and Freeholders, and all our faithful fubjefts fettled in Ireland , greeting*
X Pryn agatnft the efth hfi. c • 76, p. 250.
§ Pa. 1 Henry III. ni. 13. bit us.'
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Commending your loyalty to the King our father in the Lord, and that which we know,- you will always few to vs ; our will and- pleafure is, that of our yrrace and favour to dur kingdom of Ireland , you and your heirs for ever fould enjoy in tejlimpny of your unf oaken and difthigui fed loyalty, the liber¬ ties granted to our kingdom of England by our father and Surf elf. Which liberties reduced to writing, with the common confent of our faithful fuhjefls, we fend to you fealed with the feals of our Lord Walter , Legate of the Kpof- tclic Sec, and of our trufly Earl, William Marefchall, our Governor , and that- of four ' kingdom , bectiufe me have as yet no feal ; determined in procefs of time , with farther advice , to ratify the fame liberties with our own feaL Given at Gloucefer, the '6 th of Feb.
•Here We have a free grant' of all the liberties of England to the peo¬ ple oi Ireland, ^iit we know the liberties of Eriglifhmen are founded .on that universal law of iiatur£, that ought to prevail throughout the whole world, “ of being governed only by fuch laws to which they “ give their own confent by their reprefentatiyes in parliament.”
Record out of Mr. Petyt of the antiquity of Parliaments in. Ireland. ’
And here, before I proceed farther, I fhall tab? notice, that in the late raifed controverfy, Whether the Houfe of Commons were an ef- ieiitiai part 6f Parliament,’ before the 49th year of Henry III.’ the learned Mr. Petyt, Keeper of the Records in the Tower, in his book on that fubied, page 71, deduces his 9th argument from the compa- rifon of the ancient Generale Concilium, or Parliament of Ireland, inftanced An. 38 Henry III. With the Parliament in England, wherein the Citizens and Burgeffes were ; wrhicli was eleven years before the pretended beginning of the Commons in England.
\ For thus we find it ljf that Author. ’ u'
As great a' right and privilege furely was and ought to be al- c* lowed to the Engl: Hi fubjetts, as to the Irifh, before the 49th of “ Henry in. And if that be admitted, and that their (the Irifh)
Commune Concilium, or Parliament, had its platform from ours t<: (the Englifh) as I think will not be denied by any that have confidered u the hiffory and records touching that land (Ireland), we fhall find “ the enduing records, Ann. 38 Henry Ilf. clearly evince that the 4< Citizens and Burgeifes were then a part of their (the Irifh) Great “ Council or Parliament. : ■
" That “ left regent
Ret. 38 Henry III. in 4 Hibernia:.
at King being in partibus Tranfmarinis, and the Queen being -gent, hie fends writs (or a letter) in the King*s name, dire&ed
<l yftrufalem \ in England, into Ireland , together with J Fitz-Geojfery, the "* King’s Juf ice, to give you to know the fate tf his land of Vafcohy, enddn- gered by the hofile invajion of the King of Caftile , who regard left of li every law but that of force, attempts In violence to wref from us, and “ from the f overt ignty of the kingdom cf England, our territory of Vafcony.
And therefore entreating ail of you with the great eft earnefnefs and afec - “ lion to fupport us and our jujl rights, which at prefent are entirely defence - ‘‘ If, With men and money to the utrncf cf your power , not for faking us in
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^ Jo great a danger, Which would turn to their everlajling honour ; conclud- 41 ing, that we and our heirs may have the jufiefi obligations to you and your “ heirs y Jhould you thus fyrnpathize with us in thefe our [iraits. IV itnefs the 41 Queen, and R. Earl of Cornwall, at JVindfor , ljthof Feb.” Thus far
Mr. Petyt.
Here we have a letter from the Queen Regent to the parliament in Ireland, in an humble manner befeeching them for an aid of men and money againft the king of C^ifile’s hoftile invafion of Gaicony ; from whence we may perceive that in thofe days, no more than at prefent, men and money could not be raifed but by confent of parliament. I have been the more particular in tranfcribing this paffage out of Mr. Petyt, to Ihew that we have as ancient and exprefs an authority for our prefent conftitution of parliaments in Ireland, as can be fhewit in England. And I believe it will not be thought advifeable in thefe latter days, to break in upon old fettled conftitutions: no one knows how fatal the confequents of that may be.
Farther Conceffions from Henry III.
To return, therefore, where we digreffed. Henry III. about the twelfth year of his reign, did fpecially impower Richard de Burgh, then juftice of Ireland, at a certain day and place, to fummon all the Archbifhops, Bifliops, Abbots, Priors, Earls, Barons, Knights, Free¬ holders, and Sheriffs of each county, and before them to caufe to be read the charter of his father King John, whereunto his feai was ap¬ pendant, whereby he had granted unto them the laws and cuftoms of England, and unto which they fwore obedience : And that he fhould caufe the fame laws to be obierved and proclaimed in the feveral coun¬ ties of Ireland, that fo none prefume to do contrary to the King’s command. The record I have taken out of Mr. Pryn *, in thefe words :
*f The King to his trufiy and beloved Richard Deburg , his Jufiice of Ire¬ land, greeting. We command and firiftly charge you, that at a certain thne and place , you caufe to appear before you the Archbifhops, Bi/hops , Ab¬ bots, Friers , Earls , Barons, Efquires, Freeholders and Bailiffs of every county ; and caufe to be read before them the Charter of Lord John our fa¬ ther, to which his feal is annexed , and which he caufed to be made and fworn to by the great men of Ireland , concerning the obferving of the Englifh laws GJid cufioms in Ireland . And command them on our behalf, that for the fu¬ ture they fir Ally hold and follow thofe laws and cufioms, which are contained in the a fore fail Charter . And caufe the fame to be proclaimed and obferve# in every county in Ireland. W itnefs ourfelf at Wefiminfier, the 8 tf of May, and nth year of our reign. ’• ''
•By what foregoes, I prefume it plainly appears, that by three feve¬ ral eftabliihmcnts under the three firft Kings of Ireland of the Nor¬ man race, ** The laws* and liberties of the people of England were granted to the people of Ireland.” And that neither of thefe three Kings eftablifhed thofe laws in Ireland by any power^of the parlia¬ ment of England, but by. the free confent, allowance and acceptance of the people of Ireland.
* Againfi Coke s \th Infiit. p. 252.
*f Clauf. 12. Hen. III. in 8 de legibiis fa confuctudinibus olfervatidis in Hibern.
t 24 )
Recapitulation.
Henry II. firft introduced the laws of England into Ireland, in a public affembly of the Irifh at Lifmore, and allowed them the freedom of parliaments to beheld in Ireland, as they were held in England.
King John, at the requcft, and by the confent of the Irifh, did ap¬ point the Jaws of England to be of force in Ireland ; and though he did not this till the twelfth year of his reign of England, yet he did it not as King of England, but as Lord of Ireland : For the crown of England came to him by defcent from his brother Richard, who had no regal power in Ireland ; and what his brother had not, could not defccnd to him.
Henry III. in the firft year of his reign gave Ireland a Magna Charta; and in the twelfth year of his reign did provide, that all the laws of England Ihould be obferved in Ireland ; and that the charter granted to the Irifh by his father King John under his feal, when he was in that kingdom, Ihould be kept inviolably.
And from the days of thefe three Kings have England and Ireland been both governed by the like forms of government under one and the fame fupreme head, the King of England ; yet fo, as both king¬ doms remained feparate and diftindt in their feveral jurifdiftions under that one head, as are the kingdoms of England and Scotland at this day, without any fubordination of the one to the other f .
It were endlefs to mention all the records and precedents that might be quoted for the eftablifliment of the laws of England in Ireland; I Ihall therefore enter no farther into that matter, but therein refer to Lord Chief Juftice Coke, § Pryn, X Reyly, * &c.
Englifh laws ejiablifued in Ireland ; particularly the law of Parliament.
If now we enquire, What were thofe laws of England that became thus eftablifhed in Ireland? Surely we mull firft: reckon the great law of parliaments, which England fojuftly challenges, and all mankind have a right to. By the law of parliament, I mean that law whereby all laws receive their fan&ion, The free debates and confent of the people, by themfelves, or their chofen reprefentatives. That this was a main branch of the Englifh law eftablifhed in this kingdom, and the very foundation of our future legiflature, appears manifeft from par¬ liaments being fo early convoked in Ireland, as the forementioned pre¬ cedents exprel’s.
Mr. Pi;yn acknowledges one in Henry lid’s time, (page 259. againft, the 4th In ft ) but makes a very falfe conclufion, that there appear no footfteps of a parliament afterwards, till the third year of Edward II. becauie the acts of that parliament are the firft that are printed in our Irifh Stalute-bpok : For fo we may argaie the parliaments of England to be of later date than pretended, when we find the firft printed a<fts in Kcebleto be no older than the 9th of Henry 111. whereas ’tis mod certain, that parliaments have been held in England fome ages before that.
■\ Phis Work was pubUfljcd before the Union between England an&S cot- land. § Fourth Inf. t Againf the ±th Inf. * Placita
Parliament aria. . 6
Common Law,,
After this great law of parliaments, we may reckon the common- law of England, whether it relates to regulating and fettling of pro¬ perty, and eftates in goods or land, or to the judiciary and executive* parts of the law', and the minifters and procefs thereof, or to criminal cafes. Thefe lurely were all eftablifhed in this country by the three firft Kings of Ireland of the Norman race.
Statute Law,
Let us now confider the Hate of the Statute Laws of England un¬ der thefe three. Kings, and their predeceftors : For by the Irifh vo¬ luntary fubmiftion to, and acceptance of the laws and government of England, we mull; repute them to have fubmitted themfelves to thefe likewife ; till a regular Jegiflature was eftablifhed amongft them, in purfuance of that fubmifllon and voluntary acceptance.
Statute Law of England from //-^Norman Conquejl to Henry III.
And here we fhajl find, that in thofe times, viz. from the Norman conqueft to Henry 1 1 Id’s time inclufive, the Statute-Laws of England were very few and flender. ’Tis true, that before the 12th of Henry III. we find amongft the Englifh Hiftorians frequent mention of the laws of Edward the Confeftbr, William the Conqueror, Henry I. Hen. II. King John, and Henry III. All which are only charters, or feveral grants of liberties from the King : which neverthelefs had the force of acts of parliament, and laid as great obligations both upon prince and people, as a£ts of parliament do at this day : Whereof we may read feveral proofs in the Princes Cale, Coke’s 8th Report. . But tliefe were only fo many confirmations of each other, and all of them functions of the common laws and liberties of the people of England, long ufed and approved of through the whole land , and in the enjoyment of which they and their anceftors had been born and educated , as the words cf the mamifeript Chronicle of Litchfield exprefs it.
Law of Edward the Gonfejfor .
The Laws of Edward the Confeftor, held in fo great veneration in ancient times, and ratified and confirmed through the whole kingdom , had been formerly dij covered and eftablijhed in the reign of h}s grandfather. King Edgar. Neverthelefs from death of that very King Edgar, until tine corona¬ tion of the. holy King Edward , which was 67 years, the aforefaid laws were buried and entirely difufed. But after King Edward was raifed to the throne of the realm, by the advice of the Barons of England, he revived that law which had been buried, and after its revival , he improved, adorned and confirmed it : and thus confirmed, it was called the law of King Ed- yoard the holy ; not hecaufe he was the inventor of it, hut hecaufe he im¬ proved and reftored it%> as the faid Litchfield Chronicle has it. Thefe laws of Edward the Confcffor were tranferibed by Ingulphus Abbot of Croyland, under William the Conqueror, and are annexed to his Hiftory, * •
X Se idea Not.? & fpcclleg. ad eadm. page 171.
{ 2S )
Of William the Conqueror.
The laws of William the Conqueror are but a confirmation of the laws of Edward the Confefior, with fome fmall alterations, as the very letter of thofe laws themfelves exprefs it. * This likewife we command. K that all hold and ohferve the La-tvs of King Edward in all things , with thofe additions which we have eftahlifed for the benefit of the Englijh.
Of Henry I.
The laws of Henry I. which are in the Red Book of the Exchequer, in the cuftody of the King’s Remembrancer in England, are but a fummary confirmation both of the laws of Edward the Confeffor and William I. as the Charter itfelf exprefies it, § I ref tore you the latv of King Edward along with thofe amendments which it received from my father by the advice of the Barons .
Of Henry II. v
The laws of Henry II. called Conftitutioncs Clarendoniae, and the Affrze of Clarendon in the 2d part of Coke’s Inft. p. 6, are all but confirmations and vindications of the King’s juft prerogative againft the ufurpations of the Pope and Clergy : As we find at large in Chron. Gervafii. Doroborn. p. 1387. Edit. Lond. an. 1652.
Of King John.
The laws of King John, called the Great Charter of King John, granted in the 17th year of his reign, upon the agreement made be¬ tween him and his Barons at Running-Mead, between Staines and Windfor, was but a confirmation of the laws of Edward the Confeffor and Henry I. as Mat. Paris relates it. In the \ qtb year of King Johnf the grandees came to the King, and requefted that certain laws and liberties of King Edward , together with other liberties granted to them and to the king¬ dom and church of England , fioould be confirmed, as they are contained in writing in the Charter of King Henry I. f The fame Hiftorian gives us alfo at large both Charter of Liberties , and Charter of the Fore ft, which are not extant in the rolls of thofe times, nor to be found in any till the 28th of Edward I. and that but by infpeximus.
Of Henry Ilf.
The laws of Henry ITT. contained in Magna Charta and Charta de Forefta, both which are called Great Charters of the liberties of England , and were eftablilhed about the 9th year of Henry III. are for the moft part but declaratory of the common municipal laws of England, and that too no new declaration thereof ; for King John in the 17th year of his reign had granted the like before, which was alfo called Magna Charta. J And by the Englifh ftatute 25 Edw. I. c. 1. it is enafted, That the Great Charter, and the Charter of the Forcft be taken as the Common Law of England.
* I.eges W. I. Cap. 63. a pud Selden in not is ad eadm. p. 192.
$ Kid. Selden ui fupra. f Mat. Paris , ad an. 1215, pag. 253, <bc
X Coke's Pref. to the jecond Inft.
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By what foregoes, I conceive it is very clear, that all the charters and grants of liberties from Edward the Corifeiibr's time down to the 9th of Henry III. were but confirmations one of another, and all of them declarations, and confirmations of the Common Law of Eng¬ land. And by the feveral eftablilhments, which we have formerly mentioned, of the laws of England to be of force in Ireland : Firft, in the 13th of Henry II. Secondly, in the 12th of King John. Third¬ ly, in the 12th of Henry III. All thofe laws and cuftoms of England, which by thofe feveral charters were declared and confirmed to be the laws of England, were eftabliflied to be of force in Ireland. And thus Ireland came to be governed by one and the fame Common Law with England ; and thofe laws continue as part of the municipal and fun¬ damental laws of both kingdoms to this day.
Englifh Statutes fince tjpe gth Henry Ilf- introduced in Ireland.
It now remains that we enquire, How the ftatute laws and a<fts of parliament made in England fince the nth of Henry III. came to be of force in Ireland ; and whether all or any of them, and which, are in force here, and when and how they came to be fo.
An4 the firft precedent that occurs in our books, of ads of parlia¬ ment in Ireland particularly mentioning and confirming Ipecial acts of parliament in England, Ns found in a marginal note of. Sir Richard Bolton’s, formerly Lord Chief Baron of the Exchequer in Ireland, affixed in his edition of the Iriffi, Statutes to Stat. 10 Henry 7. Cap. 22. to this purport, That in 13 Edw. II. by parliament in this realm of Ire¬ land the Statutes of Merton, made the 20th of Henry IJ. and the Statutes of Marlbridge, made the 53d of Henry 111. the Statute of Weftminfter the firft, made the 3d of Edward I. the Statute of Glpu- cefttiy made the 6th of Edward I. and the Statute of Weftminfter the fecond, made the 13th of Edward I. were ail confirmed in this king¬ dom, and all other Statutes which were of force in England, were re¬ ferred to be examined in the next parliament ; and fo many as were then allowed and publiffied, to ftand likewife for laws in this kingdom And in the 10th of Henry IV. it was enacted in this kingdom pf Ire¬ land, That the Statutes made in England ffioujd not be of force in this kingdom, unlefs they were allowed and publiffied in this kingdom by parliament. Arid the like Statute was made again in th? 29th of Henry VI. * Thefe Statutes arc not to be found in the Rolls,, nor any Parliament Roll of that time; but he (Sir Richard Bolton) had feen the fame exemplified under' the Great Seal, and the exemplification re-- maineth in the trealury of the city of Waterford. Thus far the note. If we coniider the frequent troubles n,nd di (fractions in Ireland, we ffiall not wonder that thefe, and many other Rolls and Records, hav« been loft in this kingdom : For from the third year of Edward IL which was Anno 1310, through the whole reigns of Edward III. Richard II. Henry IV. and Henry V. and fo to the ffiventh year of Henry VI. Anqp J428, which is about 1,18 years, there are not, any Parliament Rolls to be found L yet certain it is, that divers parlia-
* Vid. Lib. Ruhr. Scaccar. Ditbl.
t Annals of Ireland , at the end of Camden s Britan, Edit. 163 7, Page
196, 197, fcV. ’ V "
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mcnt$ were held in Ireland in thofe times. J The fame may be laid from Henry lid’s coming into Ireland, Anno 1172 to the third year of Edward II. Anno 1310, about 138 years.
Perhaps it may be laid, that if there were fuch Statutes of Ireland as the faid ads of the 10th of Henry IV. and the 29th of Henry VI.- as they Ihew, that the parliaments of Ireland did think that Englifh ads of parliament could not bind Ireland ; yet they fliew likewife, that even in thofe days the parliaments of England did claim this fuperiori- ty ; or elfe, to what purpofe were the laid a&s made unlefs in denial of that claim ?
All which I hope may be readily granted without any prejudice to the right of the Irifh parliaments : There is nothing lo common, as to have one man claim another man’s right : And if bare pretence will give a title, no man is fecure : And it will be yet worie, it when an¬ other fo pretends, and I infill on my right, my juft claim lhall be turned to my prejudice, and to the difparagement of my title.
We know very well that many of the judges of our Four Courts have been from time to time fent us out of England ; and fome of them may eafily be fuppoled to come over hither prepolldfed with an opini¬ on of our parliaments being fubordinate to that of England. Or at lead, fome of thenrf may be fcrupulous, and defirous of full fecurity in this point; and 011 their account, and for their fatisfattion, luch adls as aforefaid, may be devifed, and enadted in Ireland. But then, God forbid, that thefe adts fhould afterwards be laid hold of to a clear other intent than what they were framed for ; and inflead of declaring and fecuring our rights, lhould give an handle of contell, by fhewing that our rights have been queftioned of antient time.
In conclufion of all, if this fuperiority of the parliament of Eng¬ land have been doubted a great while ago, fo it has been as great a while ago llrenuouily oppoled, and abfolutely denied by the parlia¬ ments of Ireland. And by the way, I lhall take notice, that from whencefoever this ancient pretence of Ireland’s fubordination proceed¬ ed in thofe days, it did not arifp from the parliament of England it- felf: For we have not one fingle inllance of an Englifh adt of parlia¬ ment exprefsly claiming this right of binding us: But we haye feveral inffances of Irifh adls of parliament, exprefsly denying this fubordi- liation, as appears by what foregoes.
Afterwards by a llatute made in Ireland the 18th of Henry VI. cap. 1. all the flatutes made in England againlt the extortions and op- prefiions of purveyors, are enadted to be holden and kept in all points* and put in execution in this land of Ireland.
And in the 3.2d year of Henry VI. cap. 1. by a parliament in Ire¬ land, his enacted, That all the llatutcs made againlt provifors to the court of Rome, as well in England as in Ireland, be had and kept in force.
After this, in a parliament at Drogheda the 8th of Edward IV7. cap. i . it was ratified, That the Englifh ftatute made againft rape, made the 6th of Richard II. lhould be of force in Ireland Irom the 6th day of March lail pad : And that from henceforth the faid adt, apd all other flatutes and acts made by authority of parliament within
$ Ibid. p. 160. ' Pryn againft ike 4 th Injl. chap. 76.
( 29 ) \ '
the realm of England, be ratified and confirmed, and adjudged by the authority of this parliament in their force and flrength, from the faid fixth day of March. We lhall hereafter have occaiion of taking far¬ ther notice of this flatute upon another account.
All Englifh Statutes before the io th c/^Henry VII. in force in Ireland.
Laflly, in a parliament held at Drogheda the loth of Henry VII. cap. 22. it is enabled, That all flatutes late (that is, as the * learned in the laws expound it, before that time) made in England, concern¬ ing the common and public weal of the fame, from henceforth be deemed effe&uai in law, and be accepted, ufed and executed within this land of Ireland in all points, See.
^ And in the 14th year of the fame King’s reign, in a parliament held at Triflle-Dermot, it was ena<5le,d> That all acts of parliament made in England for punching culfomers, controllers, and learchers, for their mifdemeanors ; or for punifhment of merchants or fa&ors, be of force here in Ireland, provided they be firfl proclaimed at Dub¬ lin, Drogheda, and other market-towns.
Thus we fee by what heps and degrees all the flatutes which were made in England from the time of Magna Charta, to the 10th of Henry VII. which did concern the common public weal, were receiv¬ ed, confirmed, allowed, and authorized to be of force in Ireland ; all which was done by affent of the Lords Spiritual and Temporal, and the Commons in the Parliament of Ireland affembled, and no otherwife.
Englifh Statutes declaratory of the Common Law in force in Ireland.
We (hall next enquire, Whether there are not other a£ts of the Englifh parliament, both before and lince the 10th of Henry VII. which were and are of force in Ireland, though not allowed of by parliament in this kingdom. And we {hall find, that by the opinion of our bed lawyers, there are divers fuch ; but then they are only fuch as are declaratory of the ancient common law of England, and not introdu&ive of any new law : For thefe become of force by the firft general eflablifhment of the common laws of England in this kingdom, under Henry II. King John, and Henry III. and need no particular a<5t of Ireland for their fan&ion.
Englifh alls introduflive of a new law , not of force in Ireland.
As to thofe Englifh flatutes fince the 10th of Henry VII. that are introdu<5live of a new law, it was never made a quellion whether they fhould bind Ireland, without being allowed in parliament here ; till of very late years this doubt began to be moved ; and how it has been carried on and promoted, {hall appear more fully hereafter.
I fay, till of very late years ; for the ancient precedents which we have to the contrary, are very numerous. Amongfl many, we fliall mention the following particulars.
* Coke's \th Inf it. Cap. 76. /. 3$ !.
4 Vid. lrijb St at.
. ; ’ V , ; . ■ . ». tv . > ; • . . ,
In the 2 1 ft 61 fleriry VIII. an ad was made in England making it felony in a fervant that runneth away with his mailer’s or miftreis’s goods. This ad was not received in Ireland till it was enaded by a parliament held here iil the. 33d of Henry VIII. c. 5. fef. 1.
In the 2 1 ft of Henry VIII. c. 19. there was a law made in England, that all Lords rriight didram on the lands of them holden, and make their avowry not naming the tenant, but the land. But this was not of torCe in Ireland till enaded here in the 33d of Henry VIII. c. i. fef. 1*
An std was made in England, arino 31 Henry VIII. that joint* tcriaxits and tenants in common ihould be compelled to make partiti¬ on, as coparceners were compellable at common law. But this ad wa* not received in Ireland till enaded here an. 33 Henry VIII. c. 10.
Anno 27th Henry VIII. c. 10. the ftatute for transferring ufes into poifellion was; made in England ; but not admitted in Ireland till xo Car. 1. fef. 2.
Iii like manner, the Englifh ftatute 33d Henry VI II. c. i. direding how lands and tenements may be difpofed by Will, See. was not of force iii Ireland till 10 Car. 2. fef. 2.
The Ad of Uniformity of Common Prayer and Ad mini fixation of the Sacraments was made in England the ift of Eli/, c. 2. blit w!£$ not eftablifhed in Ireland till the 2d of Eli/, c. '! '■> And fo that of England 14th Car. 2. c. 14* was not received in Ireland till 17 Sc 18 Car. 2. c. 6.
The Statute againft Wilful Perjury made in England 5 Eliz. c. 9. was not enaded in Ireland till 28 Eliz. c. 1.
So the Englifh Ad againft Witchcraft and Sorcery made 5 Eliz. c. 1 6. And another Ad againft f orgery, 5th Eliz. c. 14. were, nei¬ ther of them in force in Ireland till the 28th of her reign, cap. 3 & 4.
The EnglifK Statute againft Pirates was made the 28th of Henry VIII. c. 15. but not in Ireland till the 12th of King James, c. ■%.
In England an Ad was made the 27th of Eliz. c. 4 againft fraudu¬ lent conveyances ; but it was not in force in Ireland till enaded here the 10th of Charles, c. 3. fef. 2, , r
In the 15th year of King Charles I. in a parliament held at Dublin, there were iix Englifh Statutes made laws of this kingdom, with fuch alterations as beft fitted them to the ft ate thereof, viz. •
2i Jac. c. 14. For pleading the general ifiue in intrufions brought by the King, by chap. 1. of the Irifh ftatutes.
31 Eliz. c. 2. For abridging of proclamations on fines, by chap. 2.
2 and 3 Edw. 6. c. 8. Concerning offices before the efeheator, by chap. 4. -
31 Eliz. c. 1. Difcontinuance of writs of error in the Exchequer Chamber, by chap. 5.
8 Eliz. c. 4. and 18 Eliz. c. 7. Concerning Clergy, by chap. 7.
24 Hen. 8. c. 5. Concerning killing a robber, by chap. 9.
Thereare fix Englilh ftatutes likewife paffed in the time of K. Charles II. upon and i'oon after the reftoration, fome of which were not paffed into laws in Ireland till a year, two, or three, afterwards : As will appear by confulting the ftatute books *.
* Irijh Stat. 13 C. 11. c. 2. 13 C. II. c. 3. 1 4 and 15 C. IT. c. I. i4
a-nd 15 C. II. c. 19. 17 and 18 C. 11. c.
1 7 and 18 C. II. c. 1 1.
■ ( 31 ) '• •
And in the firft year of William and Mary, fef. 2. c. 9, an aft paffed in England declaring all attainders, and other afts made in the late pretended parliament under King James at Dublin, void : But was not enafted here in Ireland till the 7th year of King William, c. 3. And this was thought requifite to be done upon mature confederation thereon before the King and Council of England f, notwithftanding that the Englifh aft does particularly name Ireland, and was wholly dcfigned for, and relates thereto.
The like may we find in feveral other ftatutes of England paffed fmce his prefent Majefty’s acceflion to the throne, which have after- wards been paffed here in Ireland, with fuch alterations as make them practicable and agreeable to this kingdom. Such as are amongft others, the aft for difarming papifts. The aft of recognition. The aft for taking away Clergy from fome offenders. The aft for taking fpecial bail in the country, &c. The aft againft clandeftine mort¬ gages. The aft againft curling mid fwearing.
Thefe, with many more, are to be found in our ftatute books in the feveral reigns of Henry VIII. Edward VI. Queen Elizabeth, King James, King Charles I. and lid. and King William. But it is not to be found in any records in Ireland, that ever any aft of parlia¬ ment introduftive of a new law made in England fmce the time of King John, was by the judgment of any court receivedTor law, or put in execution in the realm of Ireland before the fame was confirmed and affented to by parliament in Ireland.
And thus I prelume we have pretty clearly made out our fourth en¬ quiry forementioned ; and fhewn plainly the feveral fteps by which the Englifti form of government, and the Englilh ftatute laws were received in this kingdom ; and that; this was wholly by the people’s con* fent in parliament, to which we have had a very ancient right, and as full a right as our next neighbours can pretend to or challenge.
Objections anfwered,
I * . ; > rw ... • *
I (hall now confider the objections and difficulties that are moved on this head drawn from precedents, and paffages in our law-books, that may feem to prove the contrary.
Objections from the Statute cf Rape ,
Firft ftis ur^ed, That in the Trilh aft concerning rape, paffed anno 8 Edward IV. c. 1. ’tis expreffed, that a doubt was conceived whe¬ ther the Englifh ftatute of the 6th of Richard II. c. 6. ought to be of force in Ireland without a confirmation thereof in the parliament of Ireland. Which lhews (as fome alledge) that even in thole days it was held by fome, that an aft of parliament in England might bind Ire¬ land before it be confented to in parliament here.
Englijh St at. 1 2 C. II. c. 1 2. 1 2 C. II. c. 3. 12 C. II. c. 14. 12 C* II.
c . 24. 12 C.I1. c. 33. 16 and 17 C. II. c. 5.
f For we had two feveral ads tranfmitted to us at different times, 1 9 this very purpofe. One we rejeded in the Lord Sydney s government, the other we pajjed under the Lord Cap ell.
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Bat I conceive this glofs is railed merely for want of exprefting the jreafioii of the laid doubt in the Irifn ftatute of , the 8th of Edward IV. c. i. which we may reafonably judge was this. By the ftatute of Weft- minder the 2d. c. 34. a woman that eloped from her hulband and lived 'with the adulterer, or a wife that being firft ravilhed did after¬ wards confent, and lived with the raviftier, Ihe lliould lofe her dower. This ftatute of Weftminfter the 2d, was made of force in Ireland by an aft paifed here the 13th of Edward 11. as wehavefeen before. Af¬ terwards by the Englifti ftatute of the 6th of Richard II. c. 6. there was a farther addition made to the laid ftatute of Weftminfter the 2d, to this effeft, that a maiden or wife being ravilhed, and afterwards confenting to the ravilhers, as well the raviftier as ihe that was ravilh¬ ed fhal! be difabledto claim all inheritance or dower, after the death of her hulband or.anceftor.
On this account the doubt was here railed in Ireland in the 8th of Edward IV. c. 1. Whether this latter Englifti ftatute of the 6th of Richard II. c. 6. were not in force in Ireland by virtue of the Irifh ftatute of the 13th of Edward II. which confirmed the ftatute of Weftminfter the 2d. c. 34. And for fettling this doubt the faid ftatute of the 8th of Edward IV. e. *. was palled in Ireland, and we find •very good reafon for the faid doubt. For the Englifh ftatute of the 6th of Richard II. c. 6. contained but a fmall addition to the ftatute of Weftminfter the 2d, c. 34. and we fee that even this addition itfelf was judged not to be of force in Ireland till enacted here. For the faid Irifti ftatute of the 8th of Edward IV. c. 1. makes the faid fta*- tute of the 6th of Richard II. c. 6. of force in Ireland only from the 6th of March then laft paft.
’Tis urged fecondiy, that though perhaps fuch afts of parliament in England which do not name Ireland, ftiall not be conftrued to bind Ireland, yet all fuch Englifti ftatutes as mention Ireland, either by the general words of all his Majefty’s dominions, or by particularly naming of Ireland, are and (hall be of force in this kingdom.
This being a doftrinc firft broached directly (as 1 conceive) by Will. Huffey, Lord Chief Juftice of the King’s Bench in England, in the firft year of Henry VII. and of late revived by Lord Chief Juftice Coke, and ftrongly urged, and much relied upon in thefe latter days ; I lhall take the liberty of enlarging thereon, though 1 venture thereby to iwcll this pamphlet to a fizc greater than I defire or defigned.
Qbjcfl. Englifti Statutes comprehending Ireland by general Words.
Firft, therefore, as to fuch Englilh ftatutes as feem to comprehend Ireland, and to bind it, under the general words of all his Majefty’s dominions or fubjefts, whatever has been the opinion of private and particular lawyers in this point, I am lure the opinions of the Kings of England, and their Privy Council, have been otherwife : ’Tis well known fine e Poynings’ aft in Ireland, the 10th of Henry VII. no aft can pafs in our parliament here, till it be firft aftented to by the King and Privy Council of England, and tranfmitted hither under the broad feai of England : Now the King and his Privy Council there, have been io far from furmifmg that an aft of parliament of England, mentioning only in general all the King’s dominions, or fubjefts, ikould bind Ireland, that they haye dearly ftiewn the contrary, by
C 33
frequently tranfmitting to Ireland, to be palled into laws here, Eng- Jifh ftattutes, wherein the general words of all the King’s dominions or fubjedts were contained j which would have been, to no purpofe, but merely to do what was already done, had Ireland been bound before by tliofe Engliffi ftatutes.
Of this I lhall give die following examples, amongft many others.
Adis cigainjl appeals to Rome.
The adt of parliament in England againft appeals to Rome, 24 Hen¬ ry VIII. c. 12. by exprefs words extends to all his Majefty’s dominions* yet the fame was not in force, nor received in Ireland, till it was enadted by parliament there, the 28th of Henry VIII. c. 6.
Adis of Firf Fruits and Faculties.
. In like manner the ftatutes made in England concerning Fil'd Fruits, 26 Henry VIII. c. 3. and the Adt of Faculties, * 25 Henry VIII. c. 21. though each of them by exprefs words comprize all his iVIajeily’s. fubjedts and dominions, were not received as laws in Ireland, till the former was enadted there, 28 Henry VIII. c. 4. and the latter the 28 Henry VIII. c. 19. and fo the ftatute reftoring to the crown all jurifdidtion ecclefiaftical made in England, anno 1 Eliz. c. 1. and there* in giving power to eredt an Ecclefiaftical High-Commiffion-Court in England and Ireland, yet was not of force in Ireland till enadted there, anno 2 Eliz. t. t. And though the laid Englilh adt, in relation to erecting fuch an High-Commiffion-Court, was repealed, 17 Car. 1. c. ix. and the repeal confirmed the 13 Car. 2. c. 12. And the late Rill of rights, 1 W. and M. fef. 2. c. 2. in England has damned all fuch' courts. Yet the adt in Ireland 2 Eliz. c. 1. remains ftill in force here ; and fo it was lately declared here by the Lord High-Chancel¬ lor Porter, Lord Chief JuRice Reynel, Lord Chief Baron Hely, Mr. Jufiice Cox, Mr. Juftice Jeffreyfon, in the cafe of Dr. Thomas Hac- ket, late Biffiop of Down, who was deprived of the faid biffiopric by fuch a commiffion, for great enormities ; the commiffioners being Dr. Dop- ping late Bilhop of Meath, Dr. King, the prefent Biffiop of London- Derry, and Dr. Wifeman, late Biffiop of Dromore.
By the fame rcctfon Scotland nlay be bound ,
And truly I fee no more reafon for binding Ireland by the Englilh laws under the general words of all his Majefty’s dominions or fubjedts, than there is for binding Scotland by the fame ; for Scotland is a9 much his dominion, and Scots-men as much his fubjedts as Ireland and Irilh-men: If it be faid, that Scotland is an ancient feparate and dif- tindt kingdom from England; I fay, fo is Ireland : The difference is, Scotland continued feparate from the Kings of England till of late years, and Ireland continued feparate from England but a Very little while in the perfon of King John, before the death of his father, and of his brother Richard I. without iflue. But then ’tis to be confider- ed, that there was a poffibility, or even a probability, that Ireland
* Title in the Enplilb Statute* is, No impofition fhall be paid to the Sijbcf of Rome. C
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might have continued feparate from the crown of England, even t® this very day, if Richard I. had left behind him a numerous progeny.
Englifh Statutes naming Ireland.
Secondly, As to fuch Englifh Statutes as particularly name Ireland, and are therefore faid to be of force in this kingdom, tho’ never cnadt- cd here; I fhali confider only the more ancient precedents that are offered in confirmation of this dodtrine ; For as to thofe of later date, ’tis thefe we complain of, as bearing hard on the liberties of this coun¬ try, and the rights of our parliaments, and therefore thefe ought not to be produced as arguments againfl us. I prefume, if I can fhew, that the ancient precedents that are produced, do not conclude againfl us i it will follow, that the modern instances given, ought not to cpn- clude againfl us ; that is to fay plainly, thefe ought not to have been made as they are, as wanting foundation both from authority and reafon.
The ancient precedents of Englifh flatutes, particularly naming Ire¬ land, and faid to be made in England with adefrgn of binding Ireland, are chiefly thefe three :
1. Statute of Ireland , 14 Henry III .
2. An ordinance for Ireland, 17 Edward I.
3. And the adl that all flaple commodities pafling out of England or Ireland, fhali be carried to Calais, as long as the flaple is at Calais,
2 Henry VI. c. 4. on which Huffey delivered his opinion, as we fhali fee more fully hereafter.
Thefe flatutes, efpecially the two firfl, being made for Ireland, as their titles import, have given occafion to think, that the parliament of England have a right to make laws for Ireland, without the confent of their chofen reprefentatives. But if We enquire farther into this matter, we fhali find this conclufion not fairly deduced.
Firfl, The Statute of Ireland , 14 Hen. III. as 'tis to be found in the cohesion of Englifh flatutes, is plainly thus : The Judges in Ire¬ land conceiving a doubt concerning inheritances devolved to Afters or coheirs, viz. Whether the younger fillers ought to hold of the eldefl After, and do homage unto her for their portions, or of the chief Ford, and do homage unto him; therefore Gerald Fitz Maurice, the then Lord Juftice of Ireland, difpatched four Knights to the King in England, to bring a certificate from thence of the practice there ufed, and what was the common-law of England in that cafe. Whereupon Henry III. in this his certificate or refeript, which is called Statute of Ireland, meerly informs the juftice what the law and cuftom was in England, viz. That the Afters ought to hold of the chief Lord, and not of the eldefl After. And the clofe of it commands, that the afore- faid cuftoms that be ufed within our realm of England in this cafe, be proclaimed throughout our dominion of Ireland, and be there ob- ferved. Witnefs myfelf at IV ejhn infer, 9 Feb. An. Reg. 14.
From whence ’tis manifeft, that this Statute of Ireland was no more than a certificate of what the common law of England was in that cafe, which Ireland by the original compact was to be governed by. And fhews no more, that therefore the parliament of England may bind Ireland, than it would have proved, that the common¬ wealth of Rome was fubje<5t to Greece, if, after Rome had received
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the law of the Twelve Tables, they had fent to Greece to know what die Jaw was, in lbme fpecial cafe.
0 rdi nance for Ireland.
The ftatute called Ordinance for Ireland , made at Notting¬ ham the i 7th of Edward I. and to be found in Pul tou’s collection, page 76. Edit. Lond. 1670, was certainly never received, or of force, in Ireland. This is rhariifeft from the very firft article of that ordi¬ nance, which prohibits the juftice of Ireland or others the King’s- officers there to purchafe land in that kingdom, or within their re- fpeftive bailiwicks without the King’s licence, on pain of forfeitures. But that this ha$ ever been otherwife, and that the Lords Jiiftices, and other officers here have purcliafed binds in Ireland, at their own will and pleafure, needs iio proof to thofe who have the lead knowledge ot this country. Nor does it appear by any iriquifition, office, or other record, that aiiy oiie ever forfeited on that account.
Moreover this Ordinance far Ireland , is really in itfelf no aft” of parliament, but merely an ordinance of the King and his Privy Council in England ; which appears as well from the preamble to the faid ordinance, as from this bbftervation likewife, that King Edward I. held no parliament in the 17th year of his reign: Or if this were a parliament, this Ordinance for Ireland , is the only aft thereof that is extant : But ’tis very improbable, that only this fmgle ordinance ihould appear, if any luch parliament were called together.
Staple Aft.
Thirdly, As to the Staple- Aft, 2 Henry VI. c. 4. which exprefsly names Ireland, and Huftey’s opinion thereon. The cafe, as we find it in the year-books of Mich. 2 Ric. III. fol. 11. and Mich. 1 Hen. VII. tol. 3. is in fhort thus : The merchants of Waterford having {hipped, olf fortie wool, and confighed it to Sluice in Flanders, the ffiip by ftrefi .ot weather was put in at Calais, where Sir Thomas Thwaites, Trea¬ surer of Calais, feized the faid wool as forfeited, half to himfelf, and halt to the King, by the faid ftatute ; hereupon a fuit was commenced between the faid merchants and the faid treafurer, which was brought before all the Judges of England into the Exchequer Chamber : T he merchants pleaded the King’s licence to the citizens of Waterford and their fucceliors, for carrying wool where they pleafed ; and the quef- tions before the judges were two, viz. Whether this Staple-aft binds Ireland ; and fecondly, Whether the King could grant his licence con¬ trary to the ftatute, and efpecially where the ftatute gives half the forfeiture to the difeoveren
The firft point only relates to our prefent purpofe ; and herein we find the forefaid year-book of 2 Rich. III. fol. 12. to report it thus : And there (in the Exchequer Chamber ) they declared that in the king¬ dom of Ireland they have parliaments and courts in every refpeft as in England : And by their own parliament they make and change laws, and are not hound by Jlatutes made in England ; becaufe they have not Knights of Parliament here , (and is not this an unanfwerable reafon?) hut this is to he underjlood only concerning the affelting of lands and property in that kingdom : For their perfons are the King's fiibjeds $ and as fubjefts they
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fhall be bound , nx beh out of that territory, not to do any thing contrary to the Jlatutes (of England ), like the inhabitants of Calais , Gaf coign f Guietine , &c. nvhiljl they were fubjefls. And they Jhall be obedient to the Admiralty of England as touching any thing committed on the high feas. And in like manner there fhall be a writ of error from a judgment given ih Ireland, to the King's Bench here in England.
I have verbatim tranferibed this paflage out of the forefaid year¬ book, that I might be fure to omit nothing that may give the objection its full weight. And all that I can anfwer to it, is this :
1. That when the forefaid cafe came a fecond time under the con- fideration of the Judges in the Exchequer Chamber in Mich, i Hemv VII. fol. 3. we find it reported thus: Hu (fey the Chief Juftice faid, That the ftatutes made in England fhall bind ihofe of Ireland, which was not much gain-faid by the other Judges, notwithftanding that fome of them were of a contrary opinion the laft term in his abfence. How the prefence and opinion of the Chief Juftice came to influence them now, I leave the reader to judge.
2. That Brook in abridging this cafe of the firft of Hen. VII. fol. 3. Title Parliament, Sec. 90. adds, olferve notwithftanding, that Ireland is a kingdom by itfelf, and hath parliaments of its own ; intimating thereby, that therefore Hufley’s opinion herein was unreafonable.
3. That ’tis manifeft, if Huffey mean by his words, That all adts of parliament in England fhall bind Ireland, it is diredUy contrary to the Judges opinion in the fecond of Richard Ill. before recited ; for within the land of Ireland, they are all pofitive, that the authority of the parliament of England will not affedt us. They feem at the utmoft reach to extend the jurifdidHon of the Englilh parliament over the fubjedls of Ireland, only in relation to their adfions beyond feas, out of the realm of Ireland, as they are the Ring bf England’s fubjedts ; but even this will appear unreafonable, when we confider, that by the fame argumentation, Scotland itfelf may be bound by Englilh laws, in relation- to their foreign trade, as they are the King of England's fubjedls. The queftion is, Whether England and Ireland be two dif- tineft kingdoms, and whether they have each their refpedtive parlia¬ ments ; neither of which will be denied by any man ; and if fo, there can be no fubordination on either fide, each is compleat in its own jurifdiction, and ought not to interfere with the other in any thing. If being the King of England’s fubjects, be a reafon why we ought to fubmit to laws, (in relation, to our trade abroad, in places where the parliament of England has no jurifdidHon) which have not received our aflent ; the people of England will confider whether they'alfo are not the King’s fubjedts, and may therefore (by this way of reafoning) he bound by laws which the King may aftign them without their aflent, in relation to their addons abroad, or foreign trade : Or whether they had not been fubjedls to the. King of France, had our Kings continued their poflelTion of that country, and there kept the feat of the monar¬ chy ; and then, had France been ftronger than England it might Seem that the fubjedts of tliefe kingdoms might have been bound by¬ laws made at Paris, without their own confent. — But let this dodtrine- never be mentioned amongft the free-born fubjedts of thefe nations.
Thus I have done with the three principal inftances that are ulu ally- brought againft ns, on the ftrefs that is laid on Englilh adts of parlia¬ ment, particularly naming Ireland.
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Members from Ireland in the parliament cf England.
There have been other ftatutes or ordinances made in England for Ireland, which may reafonably be of force here, becaufe they were made and alfented to by our own reprefentatives. Thus we find in the White-Book of the Exchequer in Dublin, in the 9th year of Ed¬ ward I. a writ fent to his Chancellor of Ireland, wherein he mentions Some fatutes lately made at Lincoln , and fame others afterward at York , by us with the confent cf the Prelates , Earls , Barons , and Commons of our kingdom of Ireland. Tnefe we may fuppofe were either ftatutes made at the requeft of the ftates of Ireland, to explain to them the common law of England ; or if they were inti odu&ive of new laws, yet they might well be of force in Ireland, being enacted by the af* fent of our own reprefentatives, the Lords Spiritual and Temporal? and Commons of Ireland ; as the words aforementioned do lhew : And indeed, thefe are inftanccs fo far from making againft our claim, that I think nothing can be more plainly for us ; for it manifeftly (hews, that the King and parliament of England would not enact laws to bind Ireland, without the concurrence of the reprefentatives of this kingdom.
Formerly, when Ireland was but thinly peopled, and the Englifh laws not fully current in all parts of the kingdom, Ttis probable that then they could not frequently alfemble with conveniency or fafety to make laws in their own parliaments at home ; and therefore during the heats of rebellions, or confufion of the times, they were forced to enatft laws in England. But then this was always by their proper re¬ prefentatives : For we find that in the reign of Edward III. (and by what foregoes, ’tis plain ’twas fo in Edward I/s time) Knights of the Shire, Citizens, and Burgeffes, were elected in the {hires, cities, and boroughs of Ireland, to ferve in parliament in England, and have fo ferved accordingly. For amongft the records of the Tower of Lon¬ don, Rot. Clauf. 50. Edw. 3- Pari. 2. Memb. 23. we find a writ from the King at W’eftminfter, directed to James Butler, Loyd Jullice of Ireland, and to R. Archbifhop of Dublin, his Chancellor, requiring them to iiTue writs under' the great feal of Ireland, to the feveral counties, cities, and boroughs, for fatisfying the expences of the men of that land, who laft came over to ferve in parliament in England. And in another roll the 50th of Edward III. Memb. 1 9* on complaint to the King by John Draper, who was chofen Burgefs of Ccvrke by writ, and ferved in the parliament of England, and yet was denied his expences by fome df the citizens, care was taken to re-irriburfe him.
If from thefe laft mentioned records, it be concluded that .the par¬ liament of England may bind Ireland ; it muft alfo be allowed that the people of Ireland ought to have their reprefentatives in the parliament of England.
This fending of reprefentatives out of Ireland to the parliament in England, on fome occafions, was found in procefs of time to be very troublefome and inconvenient; and this, we may prefume, was the reafon, that afterwards, when times were more fettled, we fell again into our old track, and regular courfe of parliaments in our own country; and hereupon the laws afore-noted, were enabled.
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eftablifhipg that no law ipade in the parliament of England, fhould be of force in Ireland, till it was allowed and publifhed in parliament here.
Modern acts of the parliament of England, naming Ireland.
I have faid before, p. 49. that I would only confider the more an- tient precedents that are offered to prove, That ads of England par¬ ticularly nafning Ireland, fhould bind us in this kingdom ; and indeed it were diffident to hop here, for the reafon above alledged. However 1 fhal] venture to come down lower, and to enquire into the modern precedents of Englifh ads of parliament alledged againfl us : But flill with this obfervation,* that ’tis thefe we complain againfl as innovations, and therefore they ought not to be brought in argument againfl us.
1 I do therefore again affert, that before the year 1641, there was no ilatute made in England introductory of a new law that interfered with the right which the people of Ireland have to make laws for themfelves, except only thofe' which we have before mentioned, and which we have difeuffed at lar^e, and 'fubmit to the readers judgment.
But in the year :6q.i, and afterwards in Cromwell’s time, and fmee that, in King Charles II. and again very lately in King William’s reign, fome laws have been made in England to be of force in Ireland. But how this came to pafs, we fhall now enquire. 1 1
Vv • l‘ * i'. ‘ '« *• p
Acts in favour of Adventurers in 1641.
In the 17th year of King Charles I. which was in the year 1642, there were three or four ads of parliament made in England for en¬ couraging Adventurers to raife money for the fpeedy fuppreflion of the horrid rebellion which broke’ out in Ireland the 23d of Odober 1641. The titles of thefe ads we have' in Pulton’s Colledion of Statutes: But with this remark, That they are made of no force by the Ads of Settlement and Explanation palled in King Charles lid’s time in the kingdom of Ireland’. ’ So that in thefe we are fofar from finding pre¬ cedents for England’s parliament binding Ireland, that they plainly ihew, that the parliament of Ireland may repeal an ad paffed in Eng¬ land, in relation to the affairs of Ireland.' For ’tis very well knowu, that perfons who were to have intereft's and titles in Ireland by virtue of thofe ads palled in England, are cut off by the Ads of Settlement and Explanation. 'And indeed there is all the reafon in the world that it fhould be fo, and that ads made in a kingdom by the legal repre- fentatives of the people, fhould take place cf thofe made in another kingdom. ’-But However, it will be laid, that by thofe ads ’cis mani- felt that England did prefume they had fuch a right to pafs ads bind¬ ing Ireland, or elfe they had ne’er done it ' To which I anfwcr, that confidering the condition Ireland was in at that time, viz. under an horrid intedine rebellion, flaming in every corner of the kingdom ; ’twas impoffible to have a parliament of our own ; yet it was abfolute- ly neceffary that fomething fhould be done towards fuppreffmg the vio¬ lences then raging amongll us : And the only means could then bo pradifed, was for the parliament of England to interpofe, and do Something for our relief and fafety ; thefe were the bell affu ranees could be had at that jundure ; but when the dorm was over, and the kingdom quieted, we fee new mcafures were taken ja a legal parlia¬ ment of qur own, . <
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V ,
ASs in Cromwell’s time.
>v
As to what was done for Ireland in the parliament of England in. Cromwell’s time, befides the confufion and irregularity of all proceed-" ing in thofe days, which hinders any of them to be brought into pre¬ cedent in thefe times ; we (hall find alfo that then there were repre- fentatives fent out of this kingdom, who fate in the parliament of England, which then was only the Houfe of Commons. We cannot therefore argue from hence, that England may bind us ; for we fee they allowed us reprefentatives, without which, they rightly conclud¬ ed, they could not make laws obligatory to us.
I come now to King Charles the 2d’s time ; and in it we fhall find life following Englifh ftatutes made, in which the kingdom of Ireland is concerned.
Cattle AS.
The firft is an aft againft importing cattle from Ireland or other parts beyond feas. It was only temporary by i B Gh. 2. c. 2. but made perpetual 20 Ch. 2. c. 7. and 32 Ch. 2. c. 2. This aft, however prejudicial to the trade that was then carried on between Ireland and England, does not properly bind us, more than it does any other country of the world. When any thing is imported, and landed in England, it becomes immediately fubjeft to the laws thereof, fo that herein v/e cannot be faid properly to be bound.
Tobacco AS.
Secondly, the afts againft planting tobacco in England and Ireland* 1 2 Ch. 2. c. 34. and 15 Ch- 2. c. 7. and 22 and 23 Ch. 2. c. 26. &c do pofttively bind Ireland. But there has never been an occafion o^ executing it here ; for I have not heard that a rood of tobacco was ever planted in this kingdom. But however that takes not off the obligation of the law : ’lis only want of our confent, that I urge againft that. I fee no more reafon for fending a force to trample •down an acre of tobacco in Ireland by thefe ftatutes, than there .would be for cutting down the woods of Shelela, were there an aft made in England againft our planting or having timber.
Navigation AS.
Thirdly, the aft for encouraging (hipping and navigation, by exprefs name mentions and binds Ireland ■, apd by the iaft claufe in the aft, obliges all (hips belonging thereto importing any goods from our foreign plantations, to touch firft at England.
Fourthly, the afts prohibiting the exportation of wool from Ireland, to any country except to England, do likewife ftrongly bind us, and by the 12 Car. 2. c. 32. it was made highly penal on us, and by the 14th of Car. 2. c. 18. ’tis made felony. *
* Exporting wool from Ireland , is made penal by the lrifb fiat. 13 Hen. 8. c. 2. 28 Hen. 8. c. 17. But both thefe Jlatutes are olfolele : The like may we obferve of the 1 1 Elia. (. jo, and \ 2 Elia, c, 4.
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•To thefe three laft aft s, I rriuft confefs, I have nothing to urge, to take off their efficacy ; name us they Jo mod certainly, and bind us fo, as. we do. not tranfgrefs them- But how rightfully they do this, is the matter in queftion. This I am fare of, that before thefe afts in King Charles the Second’s time, (the cldeft of which is not overthir- ty-leyen years) there is not one politive full precedent to be met with in all the ftatuteffiook, of an Engliffi afl binding the kingdom of Ire¬ lands And on this account we may venture to affert, that thefe are at leaf! innovations on us, as not being warranted by any former precedents.
And (ball proceedings only of thirty-feven years handing, be urged againft a nation, to deprive them, of the rights and liberties which ‘they enjoyed for five hundred years before, and which were invaded : without and againft their confent, and from that day to this have been conftantly complained of ? Let any Engliffi heart that ftands fo juftly in vindication of his own rights and liberties, anfwer this quef¬ tion, and I have done.
Engliffi Afls 'binding Ireland Jince King William’/ Reign .
I am now arrived at our prelent days, under the happy government of his Majefty King William the Third; and I am lorry to reflect, that fmce the late revolution in thefe kingdoms, when the fubjefts of England have more ftrenuoufly than ever alferted their own rights, and the liberty of parliaments, it has pleafed them to bear harder on their poor neighbours, than has ever yet been done in many ages foregoing. J am fure what was then done by that wife and juft body of fenators, was perfectly out of good-will and kindnefs to us, under ►thofe miferies which our affliftec]. country of Ireland then fuffered. But 1 fear fome men have fince that, made ufe of what was then done to other purpofes than at fir ft intended. Let us now fee what that' was, and conlidcr the circurqftances under which it was done.
In the year 1 6S9, when mod of the Proteftant nobility, gentry, and clergy of Ireland, were driven out of that kingdom hy the info- lencies and barbarities of the Irifh Papifts, who were then in arms throughout the kingdom, and in all places of authority under King James, newly returned to them out of France; the only refuge we had to fly to was in England, where multitudes continued for many months, deftitute of all manner of relief, but fuch as the charity of England afforded, which indeed was very munificent, and never to be forgotten. • ' - - *v /• • - ! " ’
Adi for the Proteftant Irifh Clergy.
The Proteftant Clergy of Ireland being thus banifhed from their benefices, many of them accepted fuch finall ecclefiaftical promotions in England, as the benevolence of well difpofed perfons prefented them with. But this being direflly contrary to a ftatute in this kingdom, in the 17 and )S ©f Charles the Second, cap. 10. intituled, “ An act for dilabling of fpiritual perfons from holding benefices or other ec- clefiaftical dignities in England or Wales, and in Ireland at the fama time.” The Proteftant Irilh clergy thought they could not be too fc- cure in avoiding the penalty of the laft mentioned aft, and therefore ■applied themfeives to the Parliament of England, and obtained aa
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atSt in die fjrft year of King William and Queen Mary, c. 29, intituled “ An adt for die relief of the Proteftant Irifh clergy.” And this was the firft attempt that was made for binding Ireland by an adt in Eng¬ land, lince his Majcliy’s happy acceflion to the throne of thejfe king¬ doms. " * ‘ '
' »»
A cl againjl commerce with France.
Afterwards in the fame year, and fame feiTion, chap. 34. there pah* ed an adt in England, prohibiting all trade and commerce with France, both from England and Ireland. This alfo binds Ireland, but was during the heat of the war in that kingdom, when ’twas impoftiblcto -have a regular Parliament therein, all being in the hands of the Irifh Papifts. Neither do we complain of it, as hindering us from corref- ponding with the King’s enemies, for his the duty of all good fub- jedts to abftain from that. But as Scotland, though the King’s fub- jedts, claims an exemption from all laws but what they aifent to in Par¬ liament; fo we think this our right alfo.
When the baniftied laity of Ireland obftrved the clergy thus careful to fecure their properties, and provide for the word as well as they could in that jundture, yvhen no other means could be taken by a re¬ gular Parliament in Ireland ; they thought it likewife advifeable for them to do fomething in relation to their concerns. And accordingly they obtained the Adi for the better fecurity and relief of their Ma- jeflies Proteftant fubjedls of Ineland, 1 W. and M. fef. 2. c. 9. Where¬ in King James's Irifh Parliament at Dublin, and all adls and attainders done by them, are declared void. ’Tis likewife thereby enadted, that no Proteftant faall fuffer any prejudice in his eftate or office, by reafon of his abfence out of Ireland, lince December 25, 1685 ; and that there fhould be a remittal of the King’s quit-rent, from 23 December 1688, to the end of the war. Thus the laity thought themfelves fe¬ cure.
And we cannot wonder that during the heat of a bloody war in this kingdom, when it was impoftible to fecure our eftates and properties by a regular Parliament of our own ; we fhould have recourlc to this means, as the only which then could be had. We concluded with our- felves that when we had obtained thefe adt§ from the parliament in Eng ¬ land, we had gone a great way in feegring the like adls to be palled in a regular Parliament in Ireland, whenever it lhould pleafe God to re- eftablilh us in our own country : For we well knew our own conlli- tution under Poynings lav/, that no adt could pais in the Parliament of Ireland till approved of by the King and Privy Council of England. And we knew likewife, that all the Lords and others of his Majefty’s Privy Council in England are members of the Lords or Commons Houfe of parliament there. And that by obtaining their alfent to adls of Parliament in favour of the Irilh Proteftants, they had in a manner pre-engaged their afient to the like bills when they lhould hereafter come before them as Privy Counfellors, in order to be regularly tranf- mitted to the Parliament of Ireland, there to be palled into laws of that kingdom. But inftead of all this, to meet with another conftruc- tion of what was done herein, and to have it pleaded againft us as ? precedent of our fubmiftlon, and abfolutc acquiescence in the jurif-
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' di&lon of the Parliaments of England over this kingdom, is what we complain of as an invafion (we humbly conceive) of that legifla* tive right which our Parliament of Ireland, claims within this king¬ dom.
Afi appointing new Oaths.
The next ad palled in the parliament of England, binding Ireland* is that for abrogating the oath of fupremacy in Ireland, and appoint¬ ing other oaths, 3d and 4th William and Mary, c. 2. To this the parliament convened at Dublin, Anno 1692, under Lord Sydney, and that likewife, Anno, *695, under Lord Capel, paid an entire obedi¬ ence. And by this (his al-ledged) we have given up our right, if any we had, and have for ever acknowledged our fubordination to the parliament of England. But let us a little confider the force of this argument.
I readily grant, that this and the other fore-mentioned a<5h in Engr land fmee the Revolution, when they were made, were looked upon highly in our favour, and for our benefit and to them as fuch, we have conformed ourfelves. But then, in all juftice and equity, Our fubmiliion herein is to be deemed purely voluntary, and not at all proceeding from the right we conclude thereby in the legislators. If a marl, who has no jurifdiction over me, command me to do a thing that is pleafmg to me, arid I do it ; it will not thence follow, that thereby he obtains an authority over me, and that ever hereafter I mufl obey him of duty. If I voluntarily give my money to a man when I pleafe, and think it convenient for me ; this d«es not autho¬ rize him at any time to command my money from me when he pleafes. If it be faid, this allows fubje&s to obey only Whilft ’tis convenient for them, i pray it may be conlidered, whether any men obey longer, unlefs they be forced to it ; and whether they will not free themfelves from this force as foon as they can. ’Tis impoffible to hinder men from defiring to free themfelves from uneafmefs, ’tis a principle of nature, and cannot be’ eradicated. If fubmitting to an inconvenience be a lets evil than endeavouring to throw it off, men will fubmit. But if the inconveniency grow upon them, and be greater than the hazard of getting rid of it, men will offer at putting it by, let the hatefman or divine fay what they can.
But 1 fha.ll yet go a {little further, and venture to aflert, that the right of being lubject only to fuch laws to which men give their own confent, is fo inherent to all mankind, and founded on fuch immuta¬ ble laws of nature and reafon, that ’tis not to be aliened, or given up, by any body of men whatfoever : For the end of all government and laws being the public good of the commonwealth, in the peace, tran¬ quillity and eafe of every member therein ; whatever aft is contrary to this end, is in itfelf void, and of no effedt: And therefore for a company of men to fay, Let us unite ourfelves into a fociety, and let us be abiblutely governed by fuch laws, as fuch a legiflator, without ever confulting us, (hall devife for us ; ’tis always to be underftood, Provided we find them for our benefit : For to fay, We will be go¬ verned by thofe laws, whether they be good or hurtful to us, is ab- ftird in itfelf : For to what end do men join in fociety, but to avpid. hurt, and the inconveniencies of the ftate of nature ?
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Moreover, I defire it may be confidered, whether the general ap¬ plication of the chief part of the frifh Proteftants, that were at that time in London, to the parliament at Weftminfter, for obtaining thefe laws, may not be taken for their confent, and on that account, and iio other, thefe ads may acquire their binding force. I know very well, this cannot be looked upon as a regular and formal confent, fuch as might be rcquifite at another more favourable juncture : But yet it may be taken talis qualis, as far as their circumitahces at that time would allow, till a. more convenient opportunity might prcfeijt itfelf.'
I am fure, if fome fuch confiderations as thefe, may not plead for us, we are of all his Majefty’s fubjeds the moft unfortunate :• The rights and liberties of the parliament of England have received the greateit corroborations fince his Majefty’s accellion to the throne ; and To have the rights of Scotland ; but the rights of the people of Ireland, on the other hand, have received the greateft weakening under his reign, by our fubmillion (as Tis ailedged) to thefe laws that have been made for
* , * . 1 V * » ■ -
US.
1 This certainly was not the defign of his Majefty’s glorious expedi¬ tion into thefe kingdoms : That, we are told by himfelf, (whom we cannot poftibly miltruft) was to aftert the rights and liberties of thefe nations : and we do humbly prefume that his Majefty will be graci- oufly pleated to permit us to enjoy the benefits thereof.
i f • : t«> {. • . • : • • v
' The Opinions of the Lawyers thereon.
And thus I have done with the fourth article propofed. As to the fifth, viz. The opinions of the learned in die laws relating to this mat¬ ter ; ’tis in a great mehfure difpatched by what I have offered on the fourth head ; I lhall therefore" be the more brief thereon. And I think indeed the Only perfon of note that remains to be confidered by us, is the Lord Chief Juftice Coke, a name of great veneration with the gentlemeq of the long robe, and therefore to be treated with all refpett and deference. " ' ' ' " * -i J '
In his feventh report in Calvin’s cafe, he is proving that Ireland is a dominion feplrate and divided from England ; for this he quotes many authorities f but of the year-books and reports ; and amongft others, he has that which I have before mentioned, pag. 35. 2 R. 3. S. 12. which he tranfcribes in this manner, The ' Irifo have a parliament, and make laws y arid our ft at rites do not bind them; bccaufe they do not fend Knights to our parliament ; and then adds, in a parenthesis, (which is to be un~ derftood, unlefs they be fpecially named) but their perjons are the King? Jab] efts , in the fame ?nanner as the inhabitants of Calais , Gafcoigney and Guienne. The firft thing I fliall obferve hereon, is the very unfaithful and broken citation of this paffage, as will manifeftly appear by com¬ paring it with the true tranfeript I have given thereof before, page 35. Were this all, ’twerein fome meafure pardonable. But what cannot be excufed, is the unwarrantable pofition in his parenthefis, without the leaft colour or groun4 for it in his text. Herein he concludes downright magifterially, So it muft be, this is my definitive fentence;
f 20 Hen . 6. 8. Pi iking! otis Cafe. 32 Hen. 6. 25. 20 Eliz. Dyer * 360. ploivd. Corn. 360. " >
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as if his plain affertion, without any other reafon, ought to prevail ; nay, even point-blank again ft the irrefragable reafon of the book lie quotes. I confefs in another place of Calvin’s Cafe, viz. fob 17. b. he gives this aflertipn a colour of reafon, by faying, That though Ireland be a diftinft dominion from England, yet the title thereof being by conqueft, the fame by judgment of law might by exprefs words be bound by the parliaments of England. Plow far conqueft gives a title we have enquired before: But I would fain know what Lord Coke means by Judgment of Law: Whether he means the law of nature and reafon, or of nations ; or the civil laws of our commonwealths ; in none of which fenfes, I conceive, will he, or any man, be ever able to make out his poiition.
Is the reafon of England’s parliament not binding Ireland, Becaufe we do not fend thither reprefentatives? And is the efficacy of this reafon taken ofF, by our being named in an Englifh aft ? Why fliould fending reprefentatives to parliament, bind thofe that lend them ? Meerlv be- caufe thereby the confent of thofe that are bound is obtained, as far as thofe fort of meetings can poffibly permit ; which is the very foun¬ dation of the obligation of all laws. And is Ireland’s being named in an Englifh ad of parliament, the leaft ftep towards obtaining the confent of the people of Ireland ? If it be not, then certainly my Lord Coke’s paremthefis is to no purpofe. And ’tis a wonder to me, that fo many men have run upon this vain imagination, meerly from the aftertion cf this Judge: For I challenge any man to fhew me, that any one before him, or any one fince, but from him, lias vended this ■doctrine : And if the bare aftertion of a Judge, fha.il bind a whole nation, and diffolve the rights and liberties thereof, we fhall make their tongues very powerful, and ccnftitute them greater Jaw-givers than the greateft fenates. 1 do not fee why my denying it, fhould not be as authentic as his affirming it. ’Tis true, he was a great law¬ yer and a powerful Judge ; but had no more authority to make a law, than 1 or any man elfe. But fome will fay, he was a learned Judge, and may be fuppofed to have reafon for his pofftion. Why then does he not give it us? And then what he alferts would prevail, not from the authority of the perfon, but from the force of the reafon. The fnoft learned in the laws have no more power to make or alter a con- (litution, than any other man ; and their decifions fhall no farther pre¬ vail, than fuppqrted by reafon and equity. I conceive my Lord Chief Juftice Coke applied himfelf fo wholly to the ftudy of the Common Laws of England, that he did not enquire far into the law's of nature and nations ; if he had, certainly he could never have been guilty of fuch an erroneous flip ; he would have feen demonftrably, that confent only gives human laws their force, and that therefore the reafon in the c?de he quotes is unanfwerable, Becaufe they do not fend Knights to parliament. Moreover, the aftertion of Coke in this point is direftly contrary to the w'hole tenour of the cafe which he cites : For the very aft of parliament, on which the debate of the Judges did arife, and which they deemed not to be of force in Ireland, particularly names Ireland. So that here again Lord Coke’^ error appears rood plainly. For this I refer to the Report, as I have exaftly delivered it before, page 35. By which it appears clearly to be the unanimous opinion of all the Judges then in the Exchequer Chamber; That within the land of Ire-
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land, the parliaments of England have no jurifdiftion, whatever they- may have over the iubjeds of Irelandon the open Teas : And the reafon is given, Becaufe Ireland doth not fend Knights to parliament i?i England.
This afiertion likewife is inconfillent 'with himfelf in other parts of his works. He tells us in his 4th Inft. pag. 349- That ’tis plain that not only King John (as all men allow) but Henry II. alfo, the father of King John, did ordain and command, at the inftance of the Iriftv that fuch laws as had been in England fhouldbe obferved.and of force in Ireland. Hereby Ireland being of itfelf, a diftinct dominion, and 110 part of the kingdom of England, was to have parliaments holder* there as in England. And in pag. 12, he tells us, That He?iry II. fent a Modus into Ireland, directing them how to hold their parlia¬ ments. But to what end was all this, if Ireland, ncvcrthelefs were fub- jedt to the parliament of England ? The King and parliaments of thefe kingdoms are fupreme legislators ; if Ireland be fubjedt to two (its own, and tha tof England) it has two fupremes ; ’tis not impoffible, but they may enadt different or contrary fandtions ; which of thefe fhall the people obey? He tells us in Calvin’s cafe, fol. 17. b. That if a King hath a Chrillian kingdom by conqueft, a<s Henry II. lrad Ireland, after King John had given to them, being under his obedience, and fub- jedtion, the laws of England for the government of that country, no fucceeding King could alter the fame without parliament. Which, by the way, feems diredlly contradictory to what he fays concerning Ireland fix lines below this lafl cited paftage. So that we may oblerve my Lord Coke enormoufly humbling at every turn in this point.
Opinions of other Judges, in favour of Ireland.
Thus I have done with this Reverend Judge ; and, in him, -with the only pofitive opinion againft us. I fhall now conlider what our law-books offer in our favour on this point.
To this purpofe we meet a cafe fully appofite, reported in the year¬ book of the 20th of Henry VL fol. S. between one John Pilkington and one A.
Pilkingten’s Cafe .
Pilkington brought a Scire Facias againft A. to fhew caufe, why- letters patents whereby -the King had granted an office in Ireland to the faid A. fhould not be repealed, ftnee the faid Pilkington had the fame office granted to him by former letters patents of the fame King to be occupied by himfelf or his deputy. Whereupon A. pleaded, that the land of Ireland, time out of memory, hath been a land- fepa- rated and diftindl from the land of England, and ruled and governed by the cuftoms of the fame land of Ireland. That the Lords of the fame land, which are of the King’s council, have ufed from time to time, in the abfence of the King, to eledt a Juftice, who hath power to pardon and punifii all felonies, &c. and to call a parliament, and by the advice of the Lords and Commonalty to make ftatutes. He alledged further, that a parliament was aftembled, and that it was or¬ dained by the faid parliament, f that every man who had an. office within the laid land, before a certain day, fhall occupy the faid office by himfelf, ctherwile, he fhould forfeit. He fhewed that Pilking-
p This flatute vje ?nay reckon , among fi the number of thofe that are kji during the long intervals of our Irifh ails, ?ioted before, to be about 11$ i ears .
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ton occupied by a Deputy ; and that therefore his office was void, arid that the King, had granted the faid office to him the faid A. Hereupon Piikington demurred m law; and it was debat¬ ed by the Judges, Yelvbrton; Fortefcue, Portington, Markham, and Afcough, whether the faid pfefeription in relation to the date and government of Ireland; be good or void in law. Yelverton and Port¬ ington held tlie prefcriptiotl void. But Fortefcue, Markham, and Affi cough held the prefeription good; and that the letters^ patent made to A. were gtiod, and ought not to be repealed. And in this it was agreed by Fortefcue arid Portington, that if a tentli or fifteenth be granted by parliament in England, that, (hall riot bind Ireland, al¬ though the King fhould fend the lame ftatute into Ireland under his great leal ; except they in Ireland will in their parliament approve it ; Becaufe they have not any comiriandmerit by writ to come to the par¬ liament of England ; And this was not denied by Markham, Yelverton* or Afcough.
Mcrc/icmis oj Waterford’/ Cafe.
The Merchants of Waterford’s Cafe, which I have obferved be¬ fore. p. 35. as reported in the year book of the 2d of Richard III. fob n, 1 2. is notorious on our behalf, but needs not be here repeated.
Prior oj Lamhony’/ Cafe.
The Cafe of the Prior of Lanthony in Wales, mentioned by Mr. Pryn againft the 4th Inft. ch. 76. p. 313. is ufually cited againft us* But I conceive Vis fo far from proving this, that his very much in our behalf. The cafe was briefly thus : 'The Prior of Lanthony brought an action in the Common Pleas of Ireland againft the Prior of Mol- lingar, for an arrear of an annuity, and judgment went againft the Prior of Mollingar; hereon the Prior of Mollingar brought a Writ of Error in the King’s-Bench of Ireland, and the judgment was affirmed. Then the Prior of Mollingar appealed to the parliament in Ireland held 5 Henry VI. before James Butler Earl of Ormond, and the par¬ liament reverfed both judgments. The Prior of Lanthony removed all into the King’s-Bench in England ; but the King’s-Be-nch refuied to intermeddle, as having no power over what had palled in the par¬ liament of Ireland. Hereupon the Prior of Lanthony appealed to the Parliament of England. And it does not appear by the parliament roll * that any thing was done on this appeal ; all that is entered being only the petition iti'elf at the end of the Roll. Yid. Pryn againft the 4th Inft. chap. 76. p. 313.
Now whether this be a precedent proving the fubordination of our Jrifti parliament to that of England, I leave the reader to judge: To me it feems the clear contrary. For firft we may obferve, the ICing’s-Bench in England abfolutely difclaiming any cognizance ot what had puffed in the parliament of Ireland. And next we may ob* ferve, that nothing at all was done therein upon the appeal to the parliament of England : Certainly if the parliament of England had thought themfelves to have a right to enquire into this matter, they had fo done, one way or other, and not left the matter undetermined Mid in fufpenfe.
* Rot. Park Aru 8. Hen. VI. in At.
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Argument from nets of fuccejfion and recognition pajfed in Ireland,
It has ever been acknowledged that the kingdom of Ireland is infe-* parably annexed to the imperial crown of England. The obligation that our legiflature lies under by Poynings Adi, 10 Hen. VII. c. 4. makes this tie between the two kingdoms indiftoluble. And we muft ever own it our happinefa to be thus annexed to England : And that the Kings and Queens of England are by undoubted right, ipfo fadto. Kings and Queens of Ireland. And from hence we may reafonably conclude, that if any adts of parliament made in England, fhould be of force in Ireland, before they are received there in parliament, they fhould be more efpecially fuch adts as relate to the fucceffion and fettlement of the crown, and recognition of the King’s title thereto, and the power and jurifdidtion' of the King. And yet we find in the Irifh llatutes, 2S Henry VIII. c. 2. an Adt for the Succeftion of the King and Queen Ann ; and another, chap. 5. declaring the King to be fupreme head of the church of Ireland ; both which adts had for¬ merly palled in the parliament of England. So likewise we find amongft the Irilh ftatutes adts of recognition of the King’s title to Ire¬ land, in the reigns of Henry VIII. Queen Elizabeth, King James, King Charles II. King William and Queen Mary, by which it appears that Ireland, though annexed to the crown of England, has always been looked upon to be a kingdom compleat within itfelf, and to have all jurifdidtion to an abfolute kingdom belonging, and fubordinate to no legislative authority on earth. Though ’tis to be noted, thele Eng- lilh adts relating to the fucceffion, and recognition of the King’s title, do particularly name Ireland.
Ireland’^ State Ecclefiajlical independent .
As the civil hate of Ireland is thus abfolute within itfelf, fo likewtfe is our State Ecclefiaftical : This is manifeft by the canons and conftitu- tions, and even by the articles of the Church of Ireland, which differ in Tome things from thofe of the Church of England. And in all the charters and grants of liberties and immunities to Ireland, we ftill find this, That Holy Church fhall be free, &c. I would fain know what is meant here by the word free : Certainly if our church be free and abfolute within itfelf, our ftate muft be fo likewife ; for how our civil and ecclefiaftical government is now interwoven, every body knows. But I will not enlarge on this head, it fuffices only to hint it; 1 Ihall detain myfelf to our civil government.
Argument from a Record in Reyley.
Another argument againft the parliament of England’s jurifdidtion over Ireland, I take from a record in Reyley’ s Placita Parliamentaria, page 569. to this efFedt : 7- In the 14th of Edward II. the King fent his letters patents to the Lord Juftice of Ireland, letting him know, that he had been moved by his parliament at Weftminfter, that he would give order that the Irifh natives of Ireland, might enjoy the laws of England concerning life and member, in as large and ample maimer as the Englifh of Ireland enjoyed the fame. This there¬ fore the King gives in commandment, and orders accordingly, by thefe his letters patents. From hence, I fay, we may gather, that the parliament of England did not then take upon them to have any ju-
f 14 Ed, II. Far, 2. Mtm. 21 Int.
... . ( 4* ) '
KfJiction in Ireland, (for then they would have made a law for Ice¬ land to this effeft) but inftead thereof, they apply to the King, that he would interpole hid commands, and give direftions that this great branch of the Common Law of England llrould be put in execution in Ireland indifferently to all the King’s fubjefts there, purfuant to the original compaft made with them On their firft fubmiffion to the crown of England.
Objections dfaivn from a JVrit of Error.
Let iis now confider the great obje&ion drawn from a Writ of Er¬ ror's lying from the King’s-Be'nch of England, on a judgment given in the King’s-Bench in Ireland ; which proves (as ’tis infilled on) that there is a fubordination of Ireland to England j and that if an inferior court of judicature in England, can thus take cognizance of, and over¬ rule the proceedings in the like court of Ireland ; it will follow, that the lupreme court of parliament in England may do the fame, in re¬ lation to the proceedings of the court of parliament in Ireland.
it mufl be confelfed that this has been the conllant praftice ; and it feems to be the great thing that induced my Lord Coke to believe that an add of parliament in England, and mentioning or including Ireland, ihould bind here. The fubordination of Ireland to England* he lcems to infer from the fubordination of the King’s-Bench of Ire¬ land, to the King’s-Bench of England. But to this I anlwer :
1 . That ’tis the opinion of feveral learned in the laws of Ireland* that this removal of a judgment from the King’s Bench of Ireland, by Writ of Error, into the King’s Bench of England, is founded on an aft of parliament in Ireland, which is loll: amongft a great number of other adts, which we want for the fpace of 130 years at one time, and 120 at another time, as we have noted before. But it being only a general tradition, that there was iu ch an aft of our parliament, we only offer it as a furmife, the flatute itfelf docs not appear.
2. Where a judgment in Ireland is removed, to be reverfed in Eng¬ land, the Judges in England ought, and always do judge, according to the laws and cuftoms of Ireland, and not according to the laws and culloms of England, any otherwife than as thefe may be of force in Ireland ; but if in any thing- the two laws differ, the law of Ireland muff prevail, and guide their judgment. And therefore in the cafe of one Kelly, removed to the King’s Bench in England, inUhe beginning of King Charles I. one error was aifigned that the Praecipe wais of woods and underwoods, which is a manifeft error, if brought in Eng¬ land.; but the Judges finding the ufe to be otherwife in Ireland, judg¬ ed it no error. So in Crook, Charles, fol. 51 1. Mulcarry verf. Eyres. Error was affigned, for that the declaration was of one hundred acres of bog, which is a word not known in England ; but ’twas laid, it was well enough underffood in Ireland, and lb adjudged no error.
From whence, I conceive, ’tis manifeft, that the jurifdiftion of the King’s Bench in England, over a judgment in the King’s Bench of Ireland, does not proceed from any fubordination of one kingdom to the other; but from fome other reafon, which we llia.ll endeavour to make out.
3. We have before obferved, that in the reign of King Henry III. Gerald Fitz Maurice, Lord Juftice of Ireland, lent four Knights to -know what was held for law in England in the cafe of Coparceners.
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The occafion of which me{Tage (as before we have noted out of th® King’s Refcript) was, becaufe the King’s Juftice of Ireland was ignorant: what the law was. We may reafonably imagine that there were many meflages of this kind ; for in the infancy of the Englifn government, it may well be fuppofed, that the Judges in Ireland were not fo deep¬ ly verfed in the laws of England : This occafioned meffages to Eng¬ land, before judgment given in Ireland, to be informed of the law. And after decrees made, perfons who thought themfelves aggrieved by erroneous judgments, applied themfelves to the King in England for redrefs. Thus it mud be, that Writs of Error (unlefs they had their fan&ion in parliament) became in ufe. Complaints to the King by thofe that thought themfelves injured, incteafed ; and at lad grew into cudom, and obtained the force of law.
Perhaps it may be objected, that if the Judges of the King’s Bench in England ought to regulate their judgment by the cudoms of Ire¬ land, and not of England, it will follow, that this original which we affign of Writs of Error to England, is not right.
I anfwer, that this may be the primary original, and yet conhd well enough with what we have before laid down : For though the Common Law of England was to be the Common Law of Ireland, and Ireland at the beginning of its Englifh government might fre¬ quently fend into England to be informed about it ; yet this does noC hinder, but Ireland, in a long procefs of time, may have feme fmalier cudoms and laws of its own, gradually but infenfibly crept into prac¬ tice, that may in fome meafure differ from the cudoms and pra&ice of England ; and where there is any fuch, the Judges of England mud regulate their fentence accordingly, though the irrft rife of Writ3 of Error to England, may be as we have here fuguefted; In like man¬ ner, where the Statute-law of Ireland differs from that of England, the Judges of England will regulate their judgments by the Statute- law of Ireland : This is the condant pra&ice, and notorioufly known in Wedminder-Hall : From which it appears, that removing a judg¬ ment from the King’s Bench of Ireland, to the King’s Bench of Eng¬ land, is but an Appeal to the King in his Bench of England, for his fenfe, judgment, or expofition of the laws of Ireland. But of this more hereafter.
4. When a Writ of Error is Returned into the King’s Bench of Eng¬ land, fuit is made to the King only ; the matter lies altogether before him ; and the party complaining applies to no part of the political government of England for redrefs, but to the King of Ireland only, who is in England : That the King only is fued to, our law-books make plain. This court is called the Court of our Lord the King , and the King's Court , becaufe the King ufed to fit there in perfon, as Lam- bard tells us ; and every caufe brought there, is faid to be before our Lord the King , even at this very day, Coke 4 Ind. p. 72. Therefore if a writ be returnable before us> wherever we Jhall be , ’tis to be re¬ turned to the King’s Bench. But if it be returnable before our Judges at lVeflminJlert ’tis to be returned into the Common Pleas. This Codrt (as Glanvil and other ancients tell us) ufed to travel with the King, wherever he went. And Fleta, in deferibing this Court, fays, The King hath his own Court and his own Judges , before whom, and no where
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ilfet except before himfelf, t£c. falfe judgments are to be returned and corrected. The King then (as Britton fays) having fupreme jurifdieHon in his realm, to judge in all caufes whatfoever ; therefore it is, that erroneous judgments were brought to him out of Ireland. But this does not argue that Ireland is therefore fubordinate to England $• for the people of Ireland are the fubjedts of the King to whom they ap¬ peal. And ’tis not from the country where the court is held, but from the prefence and authority of the King (to whom the people of Ire¬ land have as good a tide as the people of England) that the pre-emi¬ nence of the jurifdidtion does flow. And I queftion not, but in for¬ mer times, when thefe courts were firft erected, and when the King exerted a greater power in judicature than he does now, and he ufed to fit in his own court, that if he had travelled into Ireland, and the : court had followed him thither ; erroneous judgments might have j been removed from England before him into his court in Ireland ; for 1 fo certainly it muft be, fince the court travelled with the King. From hence it appears, that all the jurifdidtion, that the King’s Bench in 1 England, has over the King’s Bench in Ireland, arifes only from the King’s prefence in the former. And the fame may be faid of the Chancery in England, if it will alTume any power to control the Chancery in Ireland ; becaufe (as Lambard fays, p. 69, 70.) the Chan¬ cery did follow the King, as the King’s-Bench did ; and that, as he tells us out of the Lord Chief Jullice Scroope, the Chancery and the King’s-Bench were once but one place. But if this be the ground of the jurifdidtion of the King’s-Bench in England over the King’s- Bench in Ireland, (as I am fully perfuaded it is) the parliament in England cannot from hence claim any right of jurifdidtion in Ireland, becaufe they claim a jurifdidtion of their own ; and their court is not the King’s-court, in that proper and ftridt fenfe that the KingV Bench is.
But granting that the fubordination of the King’-Bench in Ireland, to the King’s- Bench in England, be rightly concluded from a Writ of Error out of the latter, lying on a judgment in the former j I fee no reafon from thence to conclude, that therefore the parliament of Ire¬ land is fubordinate to the parliament in England, unlefs we make any one fort of fubordination, or in any one part of jurifdidtion, to be a fubordination in all points, and all parts of jurifdidtion. The fubjedts of Ireland may appeal to the King in his Bench in England, for the expounding of the old common and ftatute law of Ireland ; will it therefore follow that the parliament of England fhall make new laws to bind the fubjedts in Ireland ? I fee no manner of confeqiience in it ; unlefs we take expounding old laws, (or laws already made) in the King’s-Bench, and making new laws in parliament, to be one and the fame thing. I believe the beft logician in Europe will hardly make a chain of fyllogifms, that from fuch premifes, will regularly induce fuch a conclufion.
To clofe this point, we find that a judgment of the King’s-Bench in Ireland, may be removed by a Writ of Error to the parliament in Ireland : But the judgment of the parliament of Ireland wras never queftioned in the parliament of England. This appears from the Prior of Lantliony’s cafe aforegoing.
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Declaration in the Irifh. ASl of Faculties .
I flia.ll conclude this our fifth article with a memorable pafTage out bf our Irifh ftatutes, which leems to {Lengthen what we have deliver¬ ed on the bufmefs of a Writ of Error, as well as the chief doctrine I drive at ; and that is 28 Henry VIII. chap. 19. The Act bf Facul¬ ties. This ftatute is a recital at large of the Englilh A<5t of the 25 Henry VIII. c. 21. In the preamble of which Englilh A ft ’tis de¬ clared, That this your Grace’s realm recognising no fuperior but your Grace, hath been and yet is free from any fubje&ion to any man’s laws, but only fuch as have been devifed within this realm, for the wealth of the fame, or to fuch others, as by fufferance of your Grace and your progenitors, the people of the realm have taken at their free liberties by their own conferit ; and have bound themfelves by long life and cuftom to the obfervance of, &c.”
This declaration, with the other claufes of tbe faid Englifh Aft, is Verbatim recited in the Irifh A£t of Faculties ; and in the faid Irifh A& it is enacted, That the faid Englilh Aft, and every thing and things therein, contained, lhall be eftablifbed, affirmed, taken, obeyed and accepted within this land of Ireland as a good and perfect law, and fhall be within the faid land of the fame force, effeft, quality, condition, (Length and virtue, to all purpofes and intents, as it is within the realm of England ; (if fo, then the faid claufe declares ouf right of being bound only by laws to which we confent, as it does the right of the people of England) and that all fubjefts within ' the faid land of Ireland, lhall enjoy the profit and commodity thereof, in like manner as the Ring’s fubjefls of the realm of England.
Farther redfons offered in behalj of Ireland.
I am now arrived at our fixth and laft article propofed, viz. The realons and arguments that may be farther offered on one fide and the other in this debate.
England’/ title to Ireland by pur chafe,
1 have before taken notice of the title England pretends over us from conqueft : I have likewife enquired into the precedents on one fide and the other, from adds of parliament, from records, and from reports of the learned in the laws. There remains another pretence or two for this fubordination, to be confidered ; and one is founded on purchafe.
’Tis faid, that vafl quantity of treafure, that from time to time has been fpent by England in reducing the rebellions and carrying on the wars of Ireland, has given them a juft title at leaft to the lands and inheritances of the rebels, and to the abfolute drfpolal thereof in their parliament ; and as particular examples of this, we are told of the great fums advanced by England for fupprefTmg the rebellion of the irifh Papifts in 1641, and oppoling the late rebellion fince King WIL¬ LIAM’S acceffion to the throne.
To this I anfvver, That in a war there is all reafon imaginable that the eftates of the unjuft oppofers fhould go to repair the damage that is done. This I have briefly hinted before. J3ut if wc confider the
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wars of Ireland we (hall perceive they do not refemble the common cafe of wars between two foreign enemies ; ours are rather rebellions, or inteftine commotions } that is, the Irifh Papifts rifmg againft the King and Proteftants of Ireland ; and then ’tis plain, that if thefe latter, by the affiftance of their brethren of England, and their purfe, do prove victorious, the people of England ought to be fully repaid : But then the manner of their payment, and in what way it fhall be levied, ought to be left to the people of Ireland in parliament affem- bled : And fo it was pfter the rebellion of 1641. The adventurer then were at vaft charges, and there were feveral aCts of parliament in England made for their re-imburfmg, by difpofmg to them the rebels lands. But after all, it was thought reafonable that the parliament of Ireland fhould do this in their own way ; and therefore the A<5ts of Settlement and Explanation, made all the former Englifh a<fts of no force ; or at leaft did very much alter them in many particulars, as we have noted before. In like manner we allow that England ought to be repaid all their expences in fuppreffing this late rebellion : All we defire is, that, in prefervation of our own rights and liberties, we may do it in our own methods regularly in our own parliament : And if the re-imburfement be all that England Hands upon, what availeth it whether it be done this way or that way, fo it be done ? We have an example of this in point between England and Holland in the glo¬ rious revolution under his prefent Majefty : Holland in affifting Eng¬ land expended 600,000/. and the Englifh parliament fairly repaid them. It would have looked oddly for Holland to have infilled on difpofmg of Lord Powis’s and other ellates, by their own laws, to re-imburfe themfelves.
’Tis an ungenerous thing to vilify good offices, I am far from doing it, but with all poffible gratitude acknowledge the mighty benefits Ireland has often received from England, in helping to fupprefs the rebellions of this country ; to England’s affiftance our lives and fortunes are owing : But with all humble fubmiffion, I defire it may be confidered, whether England did not at the fame time propofe the prevention of their own danger, that would necelfarily have attended our ruin ; if fo, it was in fome meafure their own battles they fought, when they fought for Ireland ; and a great part of their expence mull be reckoned in their own defence.
Objefl. Ireland prejudicial to England’/ trade , therefore to be
bound.
Another thing alleged againft Ireland is this : If a foreign nation, as France or Spain for inftance, prove prejudicial to England, in its trade, or any other way ; England, if it be ftronger, redreffes itfelf by force of arms, or denouncing war ; and why may not England, if Ireland lies crofs their interefts, reftrain Ireland, and bind it by laws, and maintain thefe laws by force ?
To this I anfwer : Firft, that it will hardly be inftanced, that any nation ever declared war with another, merely for over-topping them in fome (ignal advantage, which otherwife, or but for their endea¬ vours, they might have reaped. War only is juftifiable for injuftice done, or violence offered, or rights detained. I cannot by the law of nations. Quarrel with a man, hecaufe he. going before me in the road.
( 53 )
finds a piece of gold, which poffibly, if he had not taken it up, I might have light upon and gotten* ’Tis true, we often fee wars com¬ menced on this account under-hand, and on emulation in trade and riches ; but then this is never made the open pretence, fome other co¬ lour it muft receive, or elfe it would not look fair ; which fhews plainly, that this pretence of being prejudicial, or of reaping advantages which otherwife you might partake of, is not juftifiable in itfelf. But granting that it were a good j unification of a war with a foreign na¬ tion, it will make nothing in the cafe between England and Ireland ; for if it did, why does it not operate in the fame manner between England and Scotland, and confequently in like manner draw after it England’s binding Scotland by their laws at Weftminfter : We are all the fame King’s fubjedts, the children of one common parent ; and though we may have our diftindt rights and inheritances abfolutely within ourfelves ; yet we ought not, when thefe do chance a little to interfere to the prejudice of one or the other fide, immediately to treat one another as enemies , fair amicable propofitions fhould be pro* pofed, and when thefe are not hearkened to, then it is time enough to be at enmity, and ufe force.
Objefl. Ireland a Colony .
The laft thing I fhall take notice of, that fome raife againfl us, is, that Ireland is to be looked upon only as a colony from England : And therefore as the Roman colonies were fubjedt to, and bound by, the laws made by the fenate at Rome ; fo ought Ireland by thofe made by the great council at Weftminfter. Of all the objections raifed againft us, I take this to be the moft extravagant; it feems not to have the leaft foundation or colour from reafon or record : Does it not manifeft- ly appear by the conftitution of Ireland, that it is a compleat king¬ dom within itfelf? Do not the Kings of England bear the ftile of Ire¬ land amongft the reft of their kingdoms ? Is this agreeable to the na¬ ture of a colony? Do they ufe the title of Kings of Virginia, New- England, or Maryland ? Was not Ireland given by Henry II. in a par¬ liament at Oxford to his fon John, and made thereby an abfolute kingdom, feparate and wholly independent on England, till they both came united again in him, after the death of his brother Richard without iflue ? Have not multitudes of adts of parliament both in England and Ireland, declared Ireland a compleat Kingdom ? Is not Ireland ftiled in them all, the kingdom, or realm of Ireland ? Do thefe names agree to a colony ? Have we not a parliament, and courts of judicature ? Do thefe things agree with a colony ? This on all hands involves fo many abfurdities, that I think it delerves nothing more of our confideration.
Thefe being the only remaining arguments that are fometimes men* tioned againft us, I now proceed to offer what I humbly conceive de~ monftratesthe juftice of ourcaufe.
And herein I muft beg the reader’s patience, if now and then I am forced lightly to touch upon fome particulars foregoing. I fhall en¬ deavour all I can to avoid prolix repetitions ; but my fubjedt requires that fometimes I juft mention, or refer to, feveral notes before de¬ livered.
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Firft, therefore, 1 fay, That Ireland flsould be bound by a els of parliament made in England, is againft reafon, and the common rights of all mankind.
Againf the rights of Mankind.
All men are by nature in a date of equality, in refpedt of jurif- didtion or dominion : 'This 1 take to be a principle in itielf fo evident, that it hands in need of little proof. It is not to be conceived, that creatures of the fame fpecies and rank, promilcuouily born to all the fame advantages of nature, and the ufe of the fame faculties, fhould be lubordinate and fubjedt one to another ; thefe to this or that of the fame kind. On this equality in nature is founded that right which all men claim, of being free from all fubjedtion to pofitive laws, till by their own confent they give up their freedom, by entering into civil focieties for the common benefit of all the members thereof.
Confent only gives law force.
And on this confent depends the obligation of all human laws; in- fomuch that without it, by the unanimous opinion of all jurids, no fandtions are of any force. For this let us appeal, amongll many, only to the judicious Mr. Hooker’s Ecclef. Polity, book 1. feet. to. Lond. Edit. ^676. Thus he :
“ Howbeit, laws do not take their conftraining force from the qua- i( Jity o^ luch as devife them, but from that power which doth give “ them the ftrength of laws. That which we fpeak before, concern- “ ing the power of government, mull here be applied to the power of
making laws whereby to govern, which power God hath over all; u and by the natural law, whereunto he hath made all fubjedl, the <c lawful power of making law’s, to command w'hole politic focieties of <i men, belongeth fo properly unto the fame entire focieties, that for “ any Prince pr Potentate, of what kind foever upon earth, to exer- “ cife the fame of himfelf, and not either by exprefs commiffion im-
mediately and perfonally received from God, or elfe by authority (i derived at the fird from their confent, upon whofe perfons they im- 7 u pofe law’s, it is no better than mere tyranny. Laws they are not “ therefore, which public >ip probation hath not made fo: But ap- cc probation not only they give, who perfonally declare their aflent <( by voice, fign, or adt ; but alfo w'hen others do it in their names, “ by right originally, at the lead, deprived from them : As in Parlia-' 6S ments, Councils, &c.”
Again, “ Such men naturally have no full and perfedt power to t( command wdiole politic multitudes of men; therefore utterly without “ our confent, we could in fuch fort be at no man’s commandment “ living. And to be commanded wre do confent, when that fociety <l whereof we arc part, hath at any time before confented, without “ revoking the fame after by the like univerfal agreement. Where- il fore as any man’s deed pad is good, as long as himfelf continueth, “ fo the adt of a public fociety of men, done five hundred years fince, “ ftandeth as theirs who prefently are of the fame focieties, be- t( caufe corporations are immortal ; we were then alive in our pre- “ decelfors, and they in their fucceiTors do dill live. Laws therefore “ human ol what kind foever, arc available by confent, &c. ’
( S 5 )
And again, M But wliat matter the law of nations doth contain, I 4< omit to fcarch ; the ftrength and virtue of that law is fuch, that no “ particular nation can lawfully prejudice the fame by any their feve- “ ral lawsvand ordinances, more than a man by his private refclutions *‘ the law of the whole commonwealth or ftate wherein he liveth ;
" for as civil law being the aft of a whole body politic, doth there- “ fore over-rule each civil part of the fame body ; lb there is no rea- - tl fon that any one commonwealth of itfelf, lhould to the prejudice of “ another, annihilate that whereupon the whole world hath agreed.”
To the fame purpofe may we find the univerfal agreement of all Civilians, Grotius, Puffendcrf, Locke on Government, &c.”
No one or more men, can by nature challenge any right, liberty or freedom, or any eafe in his property, efiate or confidence, which all other men have not an equally juft claim to. Is England a free peo¬ ple ? So ought France to be. Is Poland fo ? Turkey likewife, and all the Eaftern dominions, ought to be fo : And the fame runs through¬ out the -whole race of mankind,
Againfl the Common Law of England.
Secondly, ’Tis againft the common laws of England, which are of force both in England and Ireland, by the original compact before hinted. It is declared by both houfes of the parliament of England, i Jac, cap. i , “ That in the High Court of Parliament, all the whole
“ body of the realm, and every particular member thereof,- either in il perfon, or by reprefentation (upon, them own free elections) are by “ the laws of this realm deemed to be perfonally prefent.” Is this then the common law of England, and the birth-right of every free¬ born Englilh fubjeft ? And {ball we of this kingdom be denied it, by having laws impofed on us, where we are. neither perfonally, nor re- prefentatively prefent ? My Lord Coke in his 4th Inft. cap. 1. faith,
“ That all the Lords Spiritual and Temporal, and all the Commons of the whole realm, ought of right to be fummoned to parliament, and none of them ought to be omitted.” Hence it is called General Council, in the Stat. of Weftminft. 1. and Common Council becaufe it is to comprehend all perfonss and eftates in the whole kingdom. And this is the very reafon given in the cafe of the Merchants of Wateiford foregoing, why ftatutes made in England, fhould not bind them in Ireland, becaufe they have not Knights in Parliament here. My Lord Hobbard, in the cafe of Savage, and Day, pronounced it for law, that whatever is againft natural equity and reafon, is againft law-; nay, if an aft of parliament were made againft natural equity and reafon, that aft was void. Whether it be not againft equity and reafon, that a kingdom regulated within itfelf, and having its own parliament, lhould be bound without, their confent, by the parliament of another kingdom, I leave the reader to confider. My Lord Coke likewife in the firft part of his Inftitutes, fol, 97. b. faith, Nothing can have the force of law, that is contrary to reafon . And in the old Modus Tenendi Par- liamenta of England, faid to be writ about Edward the Confeflar’s time, and to have been confirmed and approved by William the Con¬ queror: It is exprefsly declared, That all the Lords Spiritual and Temporal, and the Knights, Citizens, and Burgefles ought to be fum- moned to parliament. The very fame is in the Modus fent into Ires
{ S6 )
land by Henry II. And in King John’s great Charter, dated 17 Jo- hannis, ’tis granted in thcfe words, And in order to the holding of a Common Council of the kingdom for fettling Aids and Knights feryices, ive •will caufe the Arckbijhops , Bijhops , Abbots , Earls , and greater Barons of the kingdom to be particularly jummoned by our writ, and 'we will caufe all ethers to be fummoned in general by the Sheriffs. All are to be Summoned to parliament, the Nobility by fpecial writs ; the Commons by general writs to the Sheriffs. And is this the Common Law of England? Is this part of thole free cufioms that were contained in the great Char¬ ter of the liberties of the people of England ; and were fo folemnly granted by Henry If King John, and Henry III. to the people of Ire¬ land, that they fhonld enjoy and be governed by; and unto which they were fworn to be obedient ; and {hall they be of force only in England and not in Ireland ? Shall Ireland receive thefe charters of liberties, and be no partakers of the freedoms therein contained ? Or do thefe words fignify in England one thing, and in Ireland no fuch thing ? This is fo repugnant to all natural reafon and equity, that I hope no rational man will conteft it : I am fure if it be fo, there is an end ox all fpeech amongft men ; all compacts, agreements, and focie- ties, are to no purpofe.
Againfl the Statute Law both of England and Ireland.
3dly. It is again!! the ftatute laws both of England, and Ireland ; This has been pretty fully difeuffed before ; however I (hall here again notice, that * in the loth of Henry IV. It was enabled in Ireland, that ftatutes made in England fhould not be of force in Ireland, un- lefs they were allowed and puhlifhed by the parliament of Ireland. And the like datute was made the 29th of Hery VI. And in the 10th year of Henry VII. chap. 23. Irifh ilatutes, the parliament which was held at Drogheda, before Sir Chnftopher Prefton, Deputy to Jafper Duke of Bedford, Lieutenant of Ireland, was declared void, for this reafon among il others, That there was no general fummons of the laid parliament to ail the (hires, but only to four. And if adts of par¬ liament made in Ireland fhall not bind that people, becaufe l'ome coun¬ ties were omitted: how much lefs fhall cither their perfons or eftates be bound by thofe adts made in England, whereat no one county, or perfon of that kingdom, is prefent ? in the § 25th of Edward I. cap. 6. It was enacted by the parliament of England in thefe words,
Moreover from henceforth we fhall take no manner of aid, taxes, or “ prizes, but by the common affent of the realm.” And again iq the Statute of Liberties, by the fame King, cap. 1. De Ta/Iag. yion con - cedend it is enacted in thefe words, f “ No tallage or aid fhall betaken t( or levied by us, or our heirs, in our realm, without the good will “ and affent. of Archbifhops, Bifhops, Earls, Barons, Knights, Bur- “ gefies, and other Freemen of the land.’’ The like liberties are fpe- cially confirmed to the clergy, J the 14th of Edward III. And were thefe ftatutes, and all other ftatutes and adts of the parliament of England ratified, confirmed, and adjudged by feveral parliaments of Ireland tp be of force within this realm : And (hall the people of Ire-
§ Pulton's Col. Eng. St at. Edit, l^o^pags 63. t Ibid, page 1 1 3.
* See before »
*}■ Ibid, page 75.
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land receive no 'benefit by thofe adts ? Are thofe flatutes of force iA England only; and can they add no immunity or privilege to the king¬ dom of Ireland when they are received there? Can the King and par¬ liament make acts in England to bind his fubjecls of Ireland without their confent; and can he make no adls in Ireland with their confent, whereby they may receive any privilege or immunity ? This were to make the parliaments of Ireland wholly illufory, and of no effedh If this be reafonable dodh'ine, to what end was Poynings law in Ireland, f that makes all the ftatutes of England before that, in force in this kingdom ? This might as well have been done, and again undone, when they pleafe, by a fmgle adt of the Englifh parliament. But let us not make thus light of conflitutions of kingdoms, his dangerous to thofe who do it, ’tis grievous to thofe that luffer it.
Moreover, had the King or his council of England, in the loth year of Henry VII. in the lead dreamt of this dodtrine, to what end was all that If rift provifion made by Poynings Adi, Irifh Stat. cap. -4. That no adt of parliament fhould pafs in Ireland, before it was firfi certified by the chief Governour and Privy Council here, under the broad feal of this kingdom, to the King and his Privy Council in Eng¬ land, and received their approbation, and by them be remitted hither under the broad feal of England, here to be paffed into a law ? The defign of this adt, feems to be the prevention of any thing pafiing in the parliament of Ireland furreptitioufly, to the prejudice of the King, or the Englifh interefl of Ireland. But this was a needlefs caution, if the King, and parliament of England, had power at any time to re¬ voke or annul any fuch proceedings. Upon this adt of Poynings, many and various acts have pafTed in Ireland, relating to the explana¬ tion, fpfpenfion, or farther corroboration thereof, in divers parlia¬ ments, both in Henry VIIps, Phil, and Mary’s, and Q. Eliz. reigns ; for which fee the Irifh Statutes f. All which fhew that this dodtrine was hardly fo much as furmifed in thofe days, however we come to have it railed in thefe latter times.
Againft federal cancejjions made to Ireland.
Fourthly, ’Tis againlt feveral Charters of Liberties granted unto the kingdom of Ireland : This likewiie is clearly made out by what fore¬ goes. I fhall only add in this place, that in the Patent roll of the 17 Rich. II. m. 34. de Confirmations , there is a confirmation of feveral li¬ berties and immunities granted unto the kingdom and people of Ire¬ land by Edward III. The patent is fomewhat long, but l'o much as concerns this particular, I lhall render verbatim, as I have it tran- fcribed from the Roll by Sir William Domville, Attorney General in. Ireland during the whole reign of King Charles II. ‘The King , Sc c. greeting . We have conftdered the Letters Patents of Edward our grandfa¬ ther , lately King of England , in thefe words : “ Edward by the Grace of God, King of England , and E ranee, and Lord of Ireland , to the Arch -r bijhops , Bifops, Abbots, Priors , our Minijlers both of higher and of lower rank , and to all our faithful fubjefts of the land of Ireland to whom thefe prefents fhall come greeting. — We have thought if good that the following
f jo Hen. VII, c. 22. J 28 //. VIII. c. 4. 28 H. VIII. c.
20. 3 <b 4. Phil . <& Mary,c . 4. 1 1 Eliz. fef 2. c. 1. 11 Eliz. fef 3. c. 8.
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things he ordained and flrittly ohferved , <&c. to wit, Firf, we will and command , that our holy I rijh Church have her own liberties and free cnjloms unimpaired , and that foe uf and enjoy them without reftraint. Item , Ure will and command that our bufinefs, and that of the land itfelf efpecially the greatef and mofl difficulty be managed , explained, faithfully difcuffed, and alfo determined without the influence of fear, favoury hatredy or rewar dy in Councils, by our Jkilful Councilors and Prelates, and Grandees , and fonie of the mojl difcreet and upright men, to be convened for this purpcft from the neighbourhood oj the places where it Jhall happen that fuch Councils Jhallbe held ; and in Parliaments, by our faid Counfellors and Prelates and Nobles, and others of the aforefaid land, as life requires, according to jufice, law, cufom and reafon , 6<r. In Tefimony whereof we have caufed thefe our letters to be made patent. Witnefs our [elf at JVeJhuinfier, the d^th Day of October, in the 3 1 ft year of our reign in England , and 1 3 th in France! * Now we accounting the aforefaid appointments, ordinances and commands, and all and fingular the things contained in the above recited letters , as being already efablijhed and right , do for ourfe'ves and our heirs , to the utniofl of our power, accept , approve, ratify and. confirm the fame, as the aforefaid letters do fully f;ew. In tefimony whereof, witnefs the King at Wefmin - far, on the 26 th of June,
, Inconfflent with the royalties of a kingdom .
Fifthly, It is inconfident with the royalties and pre-eminence of a feparate and didintft kingdom. That we are thus a diftinct kingdom, has been clearly made out before. ’Tis plain, the Nobility of Ire¬ land are an order of peers clearly didind from the peerage of* England, the privileges of the one extend not into the other kingdom ; a Lord of Ireland rpay be arreded by his body in. England, and fo may a Lord of England in Ireland, whilft their perfons remain facred in their refpe&ive kingdoms : A Voyage Royal may be made into Ireland, as the Year-book, 11 Henry IV. 17. fol. 7. and Lord Coke tells us ; and King John in the 12th year of his reign of England, made a Voyage Royal into Ireland ; and all his te- nants in chief, which did not attend him in that voyage, did pay him Efcuage, at the rate of two marks for every Knight’s fee ; ■which was impofed upon the Prelates and Barons for the King’s paffiage into Ireland, as appears by the Pipe-Roll, Scutag. 12 th of King John in the Exchequer of England. Which fhewsthat we are a complete kingdom within our- felves, and not little better than a province, as fome are fo extravagant as to alfert ; none of the properties of a Roman province agreeing iiy the lead with our conftitution. ’Tis refolved in Sir Richard Pem- brough’s Cafe in the 44th of Edward III. that Sir Richard might lawfully refufe the King, to ferve him as his Deputy in Ireland, and, that the King could not compel him thereto, for that were to ban.ilh, him into another kingdom, which i§. againft Magna Charta, chap. 29. Nay, even tho’ Sir Richard had great tenures from the King, far fer - vice done and to be done, for that was faid mud be under flood \yith.in the realm of England, Coke’s 2d Ind. page 47. And in Pilkington’s Cafe aforementioned* Fartefcue declared, that the land of Ireland is and at all times hath been a dominion feparate and divided from England. Plow then can the realms of England and Ireland, being didind kingdoms and feparate dominions; be imagined to have any iivv
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pcrioritv or jurifdi&ion the one over the other ? Tis abfurd to fancy that kingdoms are feparate and diftindt meerly from the geographical diftin&ion ol territories. Kingdoms become diftinct by diftinit jurif- di&iciis, and authorities legiflative and executive ; and as He is a King who has\ no King , Jo that is a kingdom which is not fnbjett to ano¬ ther kingdom. A kingdom can have no fupreme; his in itfelf fupreme within itfelf, and muft have all jurifdiftions, authorities and pre-emi- nencies to the royal date of a kingdom belonging, or elfe ’tis none; And that Ireland has all thefe, is declared in the Irifti Stat. 33 Henry VIII. c. 1. The chief of thefe mod certainly is, the power of making gnd abrogating its own laws, and being bound only by fucli to which the community have given their confent.
Againfi the King s prerogative.
Sixthly, It is againft the King’s prerogative, that the parliament of England Ihould have any co-ordinate power with him, to introduce new laws, or repeal old laws eftablifhed in Ireland. By the conftitu- tionof Ireland under Poynings Act, the Ring’s prerogative in the le- gillature is advanced to a much higher pitch than ever was challenged by the Kings in England, and the parliament of Ireland hands almoll on the fame bottom as the King does in England ; I fay almoll on the fame bottom, for the Irilh parliament have not only a negative vote (as the King has in England) to whatever laws the King and his Privy Councils of both or either kingdom fhall lay before them j but have alfo a liberty of proposing to the King and his Privy Council here, fuch laws as the parliament of Ireland think expedient to be palled. Which laws being thus propofed to the King, and put into form, and tranfmitted to the parliament here, according to Poynings A61, mull be pahed or reje<5ledin the very words, even to a tittle, as they are laid before our parliament, we cannot alter the lealt ipta. It therefore the legiflatiire of Ireland hand on this foot, in relation to the King, and to the parliament of Ireland ; and the parliament of England do remove it from this bottom, and aftlime it to themfelves, where the King’s prerogative is much narrower, and as it were reverfed, (for there the King has only a negative vote) I humbly conceive ’tis in- croachment on the King’s prerogative ; But this I am fure, the par¬ liament of England will be always very tender oi, and his Majeliy will be very loath to have fuch a precious jewel of his crown handled ruffly ; The happinefs of our conllitutions depending pn a right tem¬ perament between the King’s and the people’s rights.
Againfi the pradiice of former ages.
Seventhly, It is againft the practice of all former ages. Wherein can it appear, that any ftatute made in England, was at any time fmee^ the reign of Henry III. allowed and put in pra&ice in the realm ot Ireland, without the authority of the parliament ot Ireland. Is it not manifeft by what foregoes, that from the twentieth of King Henry III. to the thirteenth of Edward II. and from thence to the eighteenth of Henry VI. and from thence to the thirty-fecond of Henry VI. and from thence to the eighth of Edward IV. and from thence to the tenth of Henry VII. there was fpecial care taken to introduce the ftatutes or England, (fuch of them as were riecefTary or convenient for this king-
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dom) by degrees, and always with allowance, and confent of the par¬ liament and people of Ireland. And fince the general allowance, of all the Englifh ads and ftatates in the ioth of Henry VII. there have feveral acts of parliament, which were made in England in the reigns ©f all the Kings from that time fuccefilvely to this very day, been particularly received by parliament in Ireland, and fo they become of force here, and not by reafon of any general comprehend ve words, as lome men have lately fancied. For if by general comprchenfive words the kingdom of Ireland could be bound by the ads of parlia¬ ment of England, what needed all the former receptions in the par¬ liament of Ireland, or what ufe will there be of the parliament of Ire¬ land at any time ? If the religion, lives, liberties, fortunes, and ef- J tates of the clergy, nobility and gentry of Ireland, may be dilpofed j of, without their privity and confent, what benefit have they of any I laws, liberties, or privileges granted unto them by the crown of Eng¬ land ? I am loath to give their condition! an hard name ; but I have no other notion of fiavery, but being bound by a law to which 1 do not confent.
Again ft tile reflation of Judges.
Eighthly, JTis againfi: feveral refolutions of the learned Judges, of former times, in the very point in queftion. This is manifeft from what foregoes in the Cafe of the Merchants of Waterford, Pilking- ton’s Cafe, Prior of Lanthony’s Cafe, See . But I lfyalj not here en¬ large farther thereon.
Defroys property .
Ninthly, The obligation of all laws having the fame foundation, if one law may be impofed without confent, any other law whatever may be impofed on us without our confent. This will naturally in¬ troduce taxing us without our confent ; and this as neceffarily deftroys our property. I have no other notion of property, but a power of difpofing my goods as I pleafe, and not as another (hall command : Whatever another may rightfully take from me without my confent,
I have certainly no property in. To tax me without confent, is little better, if at all, than downright robbing me. I am lure the great patriots of liberty and property, the free people of England, cannot think of fuch a thing, but with abhorrence.
Creates Gonfufon.
Laftly, The people of Ireland are left by this dodrine in the great? eft confufion and uncertainty imaginable. We are certainly bound to obey the lupreme authority over us; and yet hereby we are not per¬ mitted to know who or what the fame is ; whether the parliament of England, or that of Ireland, or both ; and in what cafes the one, and in what the other: Which uncertainty is or may be made a pretence at any time for difobedience. It is not impofiible but the different le- giflatures we are fubjed to, may enad different, or contrary fandions : Which of thefe mult we obey ?
Inconvenient to England to ajfume this power.
To conclude all, I think it highly inconvenient for England to af- fume this authority over the kingdom of Ireland : I believe there will need no great arguments to convince the wife affembly of Englilh fe-
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$ nators, how inconvenient it may be to England, to do that which may i make the Lords and People of Ireland think that they are not well f ufed, and may drive them into difcontent. The laws and liberties of , England were granted above five hundred yeiars ago to the people of : Ireland, upon their fubmifiions to the crown of England, with a de- fign to make them eafy to England, and to keep them in the allegiance of the King of England. How confident it may be with true policy, to do that which the people of Ireland may think is an invafion of their rights and liberties, I do moll humbly fubmit to the parliament of England to conlider. They are men of great wifdom, honour, and juftice : and know how to prevent all future inconveniencies. We have heard great outcries, and defervedly, on breaking the edict of Nantes, and other ftipulations ; how far the breaking our conftitution, which has been of five hundred years Handing, exceeds that, 1 leave the world to judge. It may perhaps be urged, that his convenient for the Hate of England, that the fupreme council thereof fhould make their jurifdidion as large as they can. But with fubmiffion, I conceive that if this affirmed power be not juft, it cannot be conveni¬ ent for the ftate. What Cicero fays in his offices, Nothing is profitable that is not upright , is moft certainly true. Nor do I think that his anywife neceffary to the good of England to affert this high jurif- di<ftion over Ireland. For fince the ftatutes of this kingdom are made with fuch caution and in fuch form, as is prefcribed by Poynings Aft, io Henry VII. and by the 3d and 4th of Philip and Mary, and whilft Ireland is in Engfifti hands, I do not fee how his pofiible for the par¬ liament of Ireland to do any thing that can be in the leaft prejudicial to England. But on the other hand, if England affume a jurifdi&ion over Ireland, whereby they think their rights >and liberties are taken away ; that their parliaments are rendered meeriy nugatory, and that their lives and fortunes depend on the will of a legifiature wherein they are not parties ; there may be ill confequences of this. Advanc¬ ing the power of the parliament of England, by breaking the rights of another, may in time have ill effects.
The rights of parliament fhould be preferved facred and inviolable, ■wherever they are found. This kind of government, once fo univer- fal all over Europe, is now almoft vanifhed from amongft the nations thereof. Our King’s dominions are the only fupporters of this noble Gothic conftitution, fave only what little remains may be found thereof in Poland. We fhould not therefore make fo light of that fort of Jegiflatufe, and as it were abolifh it in one kingdom of the three, wherein it apptars ; but rather cherifh and encourage it wherever we meet it.
#
The public may depend on the authenticity of the following fmall, but valuable piece of that great patriot, the Au¬ thor of the foregoing Case, which the Editor obtained thro’ the means of the Rev. Mr. TboL Brooke Clarke , from William John/on , of this City, Efq; who copied it from the Oiiginal Manuicript in the hand- writing of the Au¬ thor, written in the blank Leaves of one of his printed Cafes, which he fent to the then Lord Bifhop of Meath* j
. . i ; . «. ♦ - i • . , . '
ORDER OF THE HOUSE of LORDS
in ENGLAND.
DIE MARTIS, 24 Maij , 1698.
J,jy HERE A 8 a Petition and Appeal zvas offered to the Houfe on the 71b of ’January lajl, of the Society of the Governor and Affiants of London , of the new Plantation in U/fler , in the Kingdom of Ireland , \ againj} a judgment given by the Lords Spiritual and 'Temporal of Ireland in Parliament there ajjembled , on the 24 th day of September lafi, upon the Petition and Appeal of William, Lord Bifhop of Derry , agaxnjt the Decree or Order made in the Jaid Caufe in the Court of Chancery there : Where- j upon a Committee zvas appointed , to covftder of the proper Method of ap¬ pealing from the Decrees made' in the Court of Chancery in Ireland , and that pujjuant to the Order of the faid Committee , and a Letter fent to the Lords Jttjlices of Ireland, by Order of this Houfe: Several prece¬ dents have been tranfmitted by the Lords Juflices to this Houfe, copies zv hereof zvere ordered to be delivered to either fide: After hearing counjei upon the Petition of the Society London, prefented to this Houfe the 20 th of April laf , praying that they might be heard , as to the jur if dic¬ tion of the Houfe of Lords in Ireland , in receiving and judging Appeals from the Chancery there , as aljo counfel for the Bifhop of Derry : After due conf deration of the precedents , and of vuhat nuns offered by Counfel thereupon. It is this day ordered , adjudged and declared , by the Lords Spiritual and Temporal in Parliament afjembled, that the faid Appeal by the Bijhop of Derry, to the Houfe of Lords in Ireland , from the Decree or Order of the Court of Chancery there made, in the cauje zvberein the faid Bifhop of Derry zvas Plaintiff, and the faid Society of the Cover- \ nor and Affiants London, of the Nezv Plantation in LUfler, in Ireland zvere Defendents, zvas coram non judice, and that all the proceedings thereupon are null and void, and that the Court of Chancery in Ireland, ought to proceed in the faid Caufe, as if no fuch Appeal had been made to the Houfe of Lords there , and if either of the faid Parties do find them- ) elves aggrieved by the faid Decree or Order of Chancery , they arc at liberty to purfue their proper Remedy by zvay of Appeal to this Houfe.
Ordered, that the Lord Chancellor do zurite to the Lords Juflices of Ire¬ land , and fend them this Order ,
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REASONS againft the foregoing ORDER, By WILLIAM MOLYNEUX, Efq.
i ft. Becaufe upon the conqueft of Ireland by Henry the lid. he introduced the laws of England in that Kingdom, and fent over the Modus Tenendi Parliamentum in ‘ Termini /, the lame with that of Eng¬ land, in which record it is laid that fuch things may be examined and corre&ed, in Pleno Parliaments et non alibi.
2diy. Becaufe in the 20th year of King Henry the Third, it was provided that all laws and cuftoms which are enjoyed in England, iha.ll be alfo in Ireland, and that the land lhall be fubjeift thereunto and governed thereby ftcut Dominus Johannes Ker cum ultimo ejjet in Hiber¬ nia Jlatuit et fieri mandavit et quod Breuia de communi jure qu& cur- runt in Anglia fimiliter currant in Hibernia . '
3«ily- Becaufe King Edward III. in the 29th year of his reign, or¬ dained for the quiet and good government of the people in Ireland, that in all cafes whatfoever, errors in judgment, in records, and pro-1 ceedings