of England was as much to be obeyed as their own Record shews that 't was 29. E. 1. The Authorities above cited having manifested the several Titles which the Crown and Kingdom of England have to the Land of Ireland and that from the 18 th of H. 2. at the latest downwards as far as Mr. M. makes any controversie neither the Irish Nation nor the English there have been govern'd without the interposition of the Parliament of England and that the Parliament of Ireland had all its Laws made here or derived under Authority from hence and that not from the King 's alone or the Kings and their Priâ—y Counsels but their Parliament that the Parliaments of Ireland have had no Provision for their being holden within any certain time nor ever had Authority given them to act as independent on the Parliament of England I may well conclude that the right of the Parliament of England to bind Ireland by Laws made here without any Members chosen for Ireland is so far from being departed from that 't is strengthened and confirmed by the continual usage of the Parliaments of England and submission of the Parliaments and People of Ireland to which 't will be needless to add the consideration of the inestimable Treasure spent in several Ages for maintaining the English Interest there and the late freeing it from an Universal Insurrection and Usurpation 4. Having us'd the proper means to convince Mr. M. by the true argumentum ad hominem shewing that the chief Weapons which he uses turn strongly against himself I need the less apprehend the natural force of his reasoning upon dry Notions The right says he which England may pretend to for binding us by their Acts of Parliament can be founded only on the imaginary Title of Conquest or Purchase or on Precedents and Matters of Record Wherein he admits that Precedents and Matters of Record may give a Right which is neither by Conquest nor Purchase and of this the Authors he refers to might satisfie him at large I 'll agree with him that on consent depends the obligation of all humane Laws insomuch that without it by the unanimous Opinions of all Jurists no sanctions are of any force But do any of them say that the consent is necessary to be exprest and that immediate if it were the Sons could not be bound by those Laws which their Fathers chose in restriction of natural liberty and he might have observ'd by his own Authors and even in the Words cited by himself that approbation not only Men give who personally declare their assent by Voice Sign or act but also when others do it in their names by right originally at least derived from them as in Parliaments Councils c. To be commanded we do consent when that Society whereof we are part hath at any time before consented Farther yet whatever Freedoms the Progeny of the English and Britains now in Ireland claim with the natural Born Subjects of England as being descended from them 't is certain every Man here does not as an English-man claim to be a Member of Parliament or to have a Voice in chusing one But there are many without this Privilege who have been concluded by the consent of their Forefathers and their own agreeing to stay within a Kingdom govern'd by such Laws to which they owe Obedience and Submission at least as long as they will receive the benefit of them and the protection which they assure This is the case of those Englishmen who chuse to live in Ireland under the Protection of England without which the Protestants there could not have subsisted in any Age since the Reformation and if the Irish Natives are not conquer'd or the Right of Conquest over them ought not to be carryed beyond the reparation of the Damages sustained from them or if a just conquest gets no power but only over those who have actually assisted in that unjust force and if the right of conquest extends little fâ—rther than over the Lives of the Conquer'd but their posterity can lose no benefit thereby If an outragious and Brutal Enemy may not be restrain'd from doing farther mischief by the taking from him that Power and Estate which would enable him to carry on his Designs if the posterity may not suffer in the consequence of this as the aggressor's property is become the Conqueror's if the Children may not be restrain'd from revenging their Father's Quarrel let the English in Ireland look to it how to juâ—â—ifie those Possessions which they enjoy by the help of the Crown and Kingdom of England and if their Consciences are squeamish let them renounce their Right to the Lands of the Natives but let them not bring in to question the Right of Engl. to all Foreign Plantations and let them never fear that equal Power here to which a great part of the English Nation are resigned without any other kind of consent than the People of Ireland have given to the Laws made in England with intention to bind them and be published there As to his notion of Purchase whenever Ireland will repay the value of the Purchase that inestimable and infinite expence of Men Money Victuals and Arms which their own Parliaments own to have protected and supported them for several Ages there 's no great question but England would be willing to leave 'em to their own ways Whereas he will suppose that the Authority which the Lords and Commons of England have exercised from Age to Age in relation to Ireland would imply that the Parliament of England have claim'd a coordinate Power with the King what is this but to argue that in relation to England the Parliament is coordinate however as by Parliament he means only the States of the Kingdom 't is evident this insinuation proceeds from his not observing the Gothick constitution for which he would be thought very zealous but might have known that the States of the Kingdom or the ordines regni are those who are entituled to meet the King in Person or by representation in his Parliaments where the King is a distinct Body Politick by himself and having the Supremacy is manifestly above the ordines regni But tho' the Head which Mr. M. raises about the suppos'd injury to Prerogative be only upon a pretended coordinate Power with the King he carries it farther and will have it that for the States of this Realm to use an Authority tho' subordinate to the King to introduce new Laws or repeal old establish'd in Ireland is a violation of the Constâ—tution of Ireland under Boyning's Act and of the Prerogative of the Crown of England which he supposes to have been highly advanced by that Statute speaking of the effect of which he says The King's Prerogative is advanced to a much higher pitch than ever was challeng'd by the King 's in England and the Parliament of Ireland stands almost
THE History and Reasons OF THE Dependency of IRELAND UPON THE Imperial Crown OF THE Kingdom of ENGLAND Rectifying Mr. Molineux's State of the Case of Ireland's being bound by Acts of Parliament in England Actum erat de foecundissimâ gente Si libera fuisset Plin. Panegyr LONDON Printed for Dan. Brown at the Black Swan and Bible without Temple-Bar and Ri. Smith at the Angel without Lincolns-Inn Gate near the Fields 1698. To the Honourable the Knights Citizens and Burgesses in Parliament Assembled YOur House and they to whose Rights You succeed having for several Ages been the Principal Support of the English Monarchy the Enemies to so excellent a Constitution have thought it could never be more effectually undermined than by the drawing your Rights into Question and thus have many made 〈◊〉 their deceitful Courts to Princes 'T is not for me to determine whether Malice or Sycophantry have induced some to deny your being in any manner invested with that Authority which they officiously ascribe to the Kings of this Realm and their Council of Lords or rather Privy Council to the derogating from the Lords in Parliament no less than from You. I conceive it allowable for me to joyn the Men of this assurance with Dr. Brady and other Advocates for Despotick Power who have contended that your first Presence or Representation in the National Council began by Rebellion in the 49. of H. 3. which being taken as proved they conclude that Kings may as well set you aside as a Subject may any obligation extorted by threats and duress And whoever has made any attempt towards the removing that Corner Stone for Tyranny has been sure to incur the imputation of promoting Anarchy as if your venerable Body did not in the least interpose between those two Extremes The fairest colour which the Men of Foreign Notions and Allegiance have for their premises is from King John's Charter which as they imagine has declared or establish'd the Tenents of the Crown in Chief to be the only legal Members of the Common Council of the Kingdom the far different sense of which Charter I may well say 't was my fortune to find and evince upon my first enquiry into the Nature of our Government since the force of truth has obliged even Dr. Brady to yield it up to me after all the hard Words which he had given me on that occasion Nor has he offered the least Shadow of Evidence against my List from Domesday Book shewing that notwithstanding the supposed Conquest of this Land by W. 1. they who had not forfe ted their Estates enjoyed them upon or under Titles Priour to his Entrance without relation to any Grant or Confirmation from him Permit me to say that the Researches in which this Controversy engaged me have in some measure enabled me to assert your Authority in the highest Instances of the exercise of Power aud to make out by Deduction and numerous Presidents what you have as 't were by Intuition that Ireland as 't is annexed to the Imperial Crown of this Kingdom is subjected to that Authority which is and must be absolute and yet can never be gaievous because of your share in it Tho the bold denial of this has already receiv'd your just censure of being of dangerous Consequence to the Crown and People of England Yet if I may use the Allusion I might observe that 't is not held improper to make Comments upon the Sacred Text to explain it to Vulgar Understandings Which I should hope may plead in my Excuse if not Justification while I am proving that as you have rightfully concurred with the Lords in giving Ireland a King by filling the Vacant Throne and that Glorious Preserver of your Liberties has with the Advice and Consent of the States of this his Realm made Laws with a declared intention of binding Ireland these Acts of Sovereignty are not only agreeable to the Laws of Nature and of Nations but warranted by the Ancient Constitution of this Monarchy The foundation of which while I have been labouring to clear from that Rubbish which would render it unstable it has happened with me as with those who having exhausted themselves in working a rich Mine are forced to leave the bright Oar to them that come after And thus 't is likely to be with those Collections which I have by me concerning the Fundamental Constitution of this Government by which I had flattered my self that I must have contributed towards the Peace and Happiness of my Country in shewing the admirable Harmony that there is between the constituent parts of this Empire how strong and beautiful they are in their due order How conspicuous that Degree of the Baronage or Nobility of Engl. which you 're present has been in all the Ages of this Monarchy in maintaining its Glory what Persuasive Reasons both Prince and People have to be satisfied with their several and yet common Interests and how little they are to be thought Friends to either who prompt them as the Learned Grotius has it In partem non suam involare Whither I have been any way serviceable to the Publick or can yet serve it according to my Zeal is submitted to the Collective Wisdom of the Nation The Judgment is with you who if you should not think this or any of my former labourous Effects of Idleness as the Poet calls the Writing of Books worthy of your Protection or Notice I doubt not will extend your Pardon to Endeavours consecrated to your use By Your Most Faithful and Affectionate Humble Servant W. Atwood The History and Reasons of the Dependency of Ireland upon the Imperial Crown of the Kingdom of England c. AS there 's no need of staying for Publick Authority or Encouragement to oppose an open Invasion upon the Rights of my Country I cannot but think it my duty to make a stand till better help come in with Arms taken up on a sudden and that the rather since by a shew of Precedents and popular Positions some lovers of English Liberties are drawn in to join with the Invaders nor do I wonder to find Sufferers under Arbitrary Reigns easy to be misled by a seeming Advocate for mankind who undertakes the Cause of the whole Race of Adam And yet to any man who will be at the least pains to think of Consequences 't will be manifest that the Liberty which the Gentleman whom I oppose contends for as the inherent Right of all mankind would be a total exemption from all Laws and Government except such as Adam had a right to in the state of Nature and for want of knowing who has the title of Descent from him would turn all Nations to such Commonwealths wherein every Paterfamiliâs is an independent Soveraign If men were to be considered in such a state I will agree with him That on whatsoever ground any one Nation can challenge Liberty to themselves
the Crown of England since as King he could have no other Heir But as this may manifest that the Parliament which made John King of Ireland design'd him no more than a subordinate and vicarious Authority 't is plain he himself did not think he had more in the Seal which he used he stiled himself Son of the King Lord or who is Lord of Ireland Nor is there the least footstep of any Coronation Oath taken by John as King of Ireland or that he ever wore an Irish Crown Notwithstanding that share in the Government of Ireland which John had in his Father's life-time Ireland upon the Father's death fell to R. 1. and the Archbishop of Dublin was assisting at his first Coronation before he went to the Holy War Nor did John ever pretend to be King of Ireland while R. 1. lived more than of England which having attempted while his Brother was in Foreign parts far remote upon his Brother's return he was by Parliament deprived of all his Honours and Fortune And thus at least he lost his suppos'd Royalty of Ireland if it did not expire upon the death of H. 2. and this shews how rightly Polidore judged in calling him Regulus or Viceroy I will therefore admit Mr. M's supposal that R. 1. had not died without Issue but his Progeny had sat on the Throne of England in a continued succession to this day but cannot admit the other part of his supposal that the same had been in relation to the Throne of Ireland since John never had such Throne either before he was King of England nor after and therefore I may well conclude that the subordination of Ireland to the Parliament or even to the King of England need not arise from any thing that followed after the descent of England to King John Nor indeed was John King either of England or Ireland by descent but that Election of the States of the Kingdom of England which made him their King preferring him before Arthur an elder Brother's Son drew after it the Lordship of Ireland as an Appendant to the Crown of England And however if H. 2. had not sufficiently brought the Irish under the English Laws John did after he came to be King of England In the 9 th of his Reign he imposed Laws upon them in a Parliament of England not indeed without the desire and counsel of such English Lords who had Lands in Ireland but then their consent would have been involved in the consent of the majority here tho those Lords should have expresly dissented But the Authority was derived from the consent of the King 's faithful People which is mentioned as distinct from the desire or petition which occasioned the Law then made in a Parliament of England for the expelling Thieves and Robbers out of the King's Land of Ireland For the effectual execution of this Act of Parliament King John's Expedition seems to have been undertaken the next year when he entirely subdu'd his Enemies and confiscated the Estates of some of the English great Men in Ireland Which Confiscation seems to have been after his return to England but before that or at some other time in his Reign he made a Law in Ireland which he commanded to be observed there That all the Laws and Customs which are in force in England should be in force in Ireland and that Land be subject to the same Laws and be govern'd by them This was before any pretence to their having any Charter for a Parliament other than the supposed sending over the modus tenendi Parl. by H. 2. and is before the time that Mr. M. takes a regular Legislature to have been established among them Therefore according to himself we must repute them to have submitted not only to such Laws as had before that time been made in Parliaments of England but such as should be made till they of Ireland should have the establishment of a regular Legislature However Mr. M. will have it that John gave Laws to Ireland not as King of England but as Lord of Ireland and forms a pretty sort of an Argument from the stile of Lord of Ireland as if this were an Argument that 't is not dependent upon the Crown of England so excellent a faculty has he of making contraries serve his purpose But 't is very unlucky that John's retaining this stile is not only an Argument that Ireland is a Dominion or Land appendant to the Crown of England but that John was never King of Ireland which he would certainly have kept up as a distinct Interest if he ever had such a Title separate from the Crown of England H. 3. being made K. of England by the like choice of the States which preferr'd him before Arthur's Sister as they did John before the Brother in concurrence with these States truly acted as Lord of Ireland as might be shewn by numerous Instances In the 18 th of his Reign upon matters signified to him out of Ireland he summoned the Archbishops Bishops Earls Barons and all the great Men or Nobility of the Kingdom of England to a Parliament at London to treat about the State of his Kingdom and of his Land of Ireland And in the 21 of his Reign he sends a Writ to the Archbishops and others of Ireland acquainting them that by the common consent of the Archbishops Bishops Abbots Earls and Barons of the Kingdom of England alterations of the Law of England were enacted as to the Limitations of several Writs which were then required to be observed in Ireland in pursuance of the Statute of Merton In the 37 th of his Reign an Irish man having pleaded that he and his Brother and their Ancestors had always bin faithful to the Kings of England his Predecessors and served them in the CONQUEST OF THE IRISH they are by peculiar licence under the Great Seal of England admitted to enjoy by descent as Englishmen Which was an alteration of the Law and Custom of Ireland as to those particular Persons without any Act of Parliament there Indeed but four years after 't is recorded that 't was long before and many Ages past which must reach beyond the Expedition of H. 2. provided and yielded by the assent and desire of the Prelats and great Men of the Land of Ireland that they should be bound by the Laws us'd in the Kingdom of England Yet the same Record restrains this to the consent of only the English of the Land of Ireland However 't is beyond dispute that the English Laws both made and to be made in England were then held to reach as far as the English Interest in the Land of Ireland and this according to the Record 18 H. 2. above referr'd to was provided de communi Consilio Regis by the King 's Common Council tho by what
him by Hereditary Succession not that he was held to be King by a meer Right of Descent but as the Ritual of the Coronation of H. 1. and the Writ for Proclaiming the Peace of E. 1. in England and Authors of the time shew the Election of the States of England placed him in the Inheritance of the Crown therefore the States of England declare to the Subjects of Ireland that they were bound to take the like Oath of Allegiance as the English had done and this is required of them by the States here under the Great Seal of England nor is there colour to believe that there was any Summons to Ireland for any from thence to come to that Conâ—ention nor indeed was there time for such Summons and return before that meeting notwithstanding Mr. M's assertion of this Reign in particular that the Laws made in England and binding them were always enacted by their proper Representatives meaning Representatives chosen in Ireland the reason for which he there brings from supposed instances in the Reign of E. 3. seeming not to rely upon his Quotation from the White Book of the Exchequer in Dublin but the Page before which 9 E. 1. mentions Statutes made by the King at Lincoln and others at York with the assent of the Prelates Earls Barons and Commonalty of his Kingdom of Ireland Which if it implyed the presence of the Commonalty of Ireland would be an Argument that all their Rights were concluded by the Tenants in chief who had Lands in Ireland but were Members of the English Parliament by reason of their Interest here but in truth this shews no more than that at the request of those of Ireland the Parliament of England had enacted those Laws and the Record in their white Book is only a Record of the transmission from hence and proves that suitably to the practice both before and after that time they in Ireland had no Parliaments for enacting Laws but were forc'd to Petition to have them enacted here and what was enacted upon their Petition was truly with their Assent But then the Question will be whether in the Laws made in that King's Reign with intention to bind Ireland their Consent is generally expressed or implyed any otherwise than from the nature of their former submission to be govern'd by the English Laws But if our Acts of Parliament and Records concerning them are clear in any thing they certainly are in this that the Parliament of England then had and exercis'd an undoubted Right of binding Ireland without their immediate consent by any Representatives chosen there Mr. M. indeed tho' as I have before observ'd he admits that Ireland was bound by Acts of Parliament here till the end of the Reign of H. 3. for want of a regular legislature among themselves yet suitably to his usual inconsistencies upon the enquiry where and how the Statute Laws and Acts of Parliament made in England since the 9 th of H. 3. came to be of force in Ireland will have it that none of them made here without Representatives chosen in Ireland were binding there till receiv'd by a suppos'd Parliament 13 E. 2. yet it falls out unluckily that they have Statutes in Print 3 E. 2. which speak not a word of Confirming the Laws before that time made in England and yet no Man will question but Statute Laws of England made in the Reign of E. 1. were a Rule which the Judges in Ireland went by before the time of E. 2. And that all Judgments given in Ireland contrary to any Law transmitted thither under the Great Seal of England must upon Writs of Error have been set aside here as Erroneous But let 's see whether our Parliaments in the time of E. 1. had such a defference to the Irish Legislature or that the English in Ireland then made any such pretensions as Mr. M. advances If we Credit Judge Bolton our Statute Westm 1st which was 3 E. 1. was first confirm'd in Ireland 13 E. 2. and till then according to Mr. M.'s Inferences from their receiving or publishing Laws made here that Statute was of no force in Ireland being Introductory of a new Law in several particulars as among other things in Subjecting Franchises to be seized into the King's Hands for default of pursuing Felons and in Enacting not only the Imprisoning and Fining Malefactors in Parks and Vivaries but forcing them to Abjure the Realm if they could not find Sureties for their good Behaviour This Act does not Name Ireland but the King Ordain'd and Establish'd it by His Council and by the assent of the Archbishops Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm thither Summoned for the mending the Estate of the Realm for the Common profit of the holy Church of the Realm and as Profitable and Convenient for the whole Realm However that Ireland as part of the Realm was bound by this Law and by other Laws made 11 12 and 13 E. 1. without any regard to Parliamentary Confirmations in Ireland and that for enforcing Obedience to those Laws 't was enough to send them thither by some proper Messenger under the Great Seal of England if not without appears by the Proceedings of the Parliament at Winchester holden the Oct. after the Parliament of Westim 2. Mem. quod c. Mem. that on Friday in the Feast of the Exaltation of the Holy Cross in the 13 th Year of the King at Winchester there were deliver'd to Roger Brâ—ton Clerk to the Venerable Father William Bishop of Waterford then Justice of Ireland certain Statutes made and provided by the King and His Council viz. The Statutes of Westminster made soon after the King's Coronation and the Statutes of Gloster and those made for Merchants and the Statute of Westm provided and made in the King's Parliament at Easter to be carried to Ireland and there to be Proclaimed and Observed It appears that among the Statutes delivered to the Chief Justices Clerk in order to their being published and observed in Ireland one was the Statute concerning Merchants 12. E. 1. for the enforcing and improving a Statute made at Acton Burnel 11. of that King that of Acton Burnel provides a remedy for Debts to Merchants to be had by calling the Debtor before the Mayor of London York or Bristol or before the Mayor and a Clerk to be appointed by the King which as it seems 't was intended that the King should have Power to appoint in other Cities or Towns within his Kingdom Accordingly the Statute 12. E. 1. says the King had commanded it to be firmly kept throughout his Realm and that Parliament 12. for declaring or explaining some of the Articles of the former Statute names the Mayor of London or the Chief Governour of that City or of other good Town This Statute expresly Ordains and Establishes that it be thenceforth held throughout the
the Statutes of Gloster which do not Name Ireland and the Statutes of West â— which do were both delivered to the Clerk of the Justice of Ireland in order to their being published and observed there And 't is evident that Ireland's being bound by Parliaments in England without any consent expressed in Ireland was not merely the Judgment of the times above referred to but the setled Judgment of that King and His Council in His Parliaments Thus in the 8 th of that King there 's a Writ taking notice that the Irish had desired to be governed by the Laws of England upon which the King requires all the English of the Land of Ireland to Certifie whether this might be granted without pre judice to them declaring that the King would make such Provision as should seem expedient to Himself and His Council which plainly enough referred to His Council in Parliament If upon their Certificate a general Law had passed to grant the Irish their Request the mentioning the consent of the English there could not be thought to derogate from the Legislature here the Authority of which was intimated in that very reference and was fully asserted in that Kings Reign by an Act of Parliament made here after that time and the Proceedings thereupon both in England and Ireland By the Case of mixt Monies in Ireland we are informed that 29 E. 1. when by the King 's sepecial Ordinance the Pollards and Crochards were cry'd down and made of no Value the same Ordinance was transmitted into Ireland and Enrolled in the Exchequer there as is found in the Red Book of the Exchequer there And agreeably to this it appears by the Statute Roll here that this Ordinance which in truth was an Act of Parliament or else an other of the same kind was sent to John Wogan then Chief Justice of Ireland or to his Lieutenant This is only a short Entry referring to the known usage But the very next Record of a transmission to Ireland of a Statute made here which was that about Juries is more express Mem. quod istud Statutum de verbo ad verbum missum suit in Hib. T. R. aput Kenynt 14. die Aug. Rni sui 27. Et mandatum fuit J. Wogan Justic Hib. quod praed Stat. per totam Hib. in locis quibus expedire videret legi publicè proclamari firmiter teneri faciat Mem. That that Statute word for word was sent into Ireland Teste the King at Kenynton 14. Aug. in the 27th of his Reign Command was gito John Wogan Chief Justice of Ireland to cause it to be read in those places in which he shall think it expedient and to be publickly Proclaimed and Observed This Statute does not name Ireland nor has general words which seem to include it But it seems some years after to have been Enacted that this Statute should be transcribed and sent to Ireland for a Law given them by Parliamentary Authority In the 35 th of E. 1. Will. De Testa was Impeach'd in Parliament for grievous Oppressions and Extortions upon the People by Colour of Authority from the See of Rome This upon the Petition of the Earls Barons and other Great Men and the Commonality of the whole Realm of England occasioned general Law and Provision for the State of the King's Crown and also of His Lands of Scotland Wales and Ireland The Remedy was Enacted by the Assent of the King and the whole Council of Parliament and 't was Enacted that for the future such things should not be permitted within the Realm That Ireland was then included as part of the Realm appears not only by the intention before declared but agreeably thereunto The Statute then made is by Authority of Parliament sent to the Justice of Ireland as well as to the Chief Governors of other the King's Dominions enjoyning them to enquire and proceed against those who had offended in that kind and to cause the Provision Agreement and Judgment of that Parliament to be Firmly and Inviolably observed in those Lands Mr. M. having as he thinks answer'd an Objection from the Ordinance for the State of Ireland Printed in our Statute-Books not only that of 1670. but even in others much more Ancient as made 17 E. 1. I shall shew him some new Matter which may deserve his farther Consideration and yet tho' he thinks he has prov'd 1. That this Ordinance was never receiv'd in Ireland 2. That 't was meerly an Ordinance of the King and His Privy Council in England it might be enough to observe That the Clause which he Instances in forbidding the King's Officers to purchase Lands there upon pain of Forfeiture has an Exception for the King's Licence and tho' he has not been at the pains to examine whether there were any such Licences from England I can shew him in the very next Year a confirmation under the Great Seal of England of a grant of Land 's there before made from hence which were sufficient security against the forfeiture 2. If 't were admitted that the Ordinance were made by the King and his Privy Counsel 't would be very difficult for him to prevail upon many to believe that a Land or Kingdom which in all the principal Parts of Government was under the controul of the Great Seal of another Kingdom was as he pretends a complete Kingdom within it self or a Kingdom regulated within it self the contrary of which appears in numerous instances of the time of which we are at present enquiring as of leave from hence to chuse Ecclesiastical Governors Pardons Directions for the Proceedings of the Courts of Justice and Council in Ireland the appointing distinct Courts of Judicature Grants of Lands Offices Liveries out of the King's Hands of Lands held in Chief of the Crown of England Licences of alienation and the like Further than all this there 's a Precedent of taxing Communities by Authority from hence It must be agreed that 't was frequent for Kings to grant to Cities and Towns in England power to raise Customs or Duties for Murage the building or repairing their Walls to be levyed upon Goods and Merchandizes brought thither in these Grants there was no mention by what advice or consent they issued but 't is to be presumed that the Great Seal was not rashly affixed nor were they extended farther than to the Walls which secured the Persons and Goods of those who paid the Duty yet the Great Seal of England has been applyed much more absolutely to the binding the property of the Subjects in Ireland as may appear by this Record R. Ballivis probis hominibus sâ—is Dublin Salutem Cum in subsidium villae claudendae vobis nuper per literas postras Pat. concesserimusquod quasdan consuetudines usque ad certum tempâ—s de singulis rebus venalibus ad eandem villam
12. of H. 3. was to receive the Charter of King John and the King's Court or Bench in Ireland was to receive the Statute of Merton I will agree that Parliaments in Ireland may have received Laws in the time of E. 2. but there 's no colour to believe that they then pretended to more in relation to Acts of Parliament sent over to them at large under the Great Seal of England The Reign of E. 3. I may divide into Three Periods 1. Before 2. At 3. After the main and most express Charter for a Parliament in Ireland of any yet cited or appearing 1. In the Statute Roll of the beginning of E. 3. there are several entries in Latin of this kind Mem. that those Statutes were sent into Ireland in the form of a Patent with a certain Writ here following But the entry of the Writ is sometimes omitted it being look'd on as matter of common form In the 2 d. of that King a Statute was made at Northampton giving a command about Fairs to all Sheriffs of England and other Parts In the 6 th a Statute was made supplying the Defects of that Statute and creating the Forfeiture of double the Value of what should be sold in any Fair or Market beyond the time limited for them in the Charters In the 6 th of that King this last Statute and all other Statutes made in his Reign to that time are sent in the form of a Patent to Anthony de Lucy Justice of Ireland requiring that those Statutes and all the Articles therein contained be Proclaimed in the King's Land of Ireland as well within Liberties as without and that he should cause so much of them as concern'd the Justice and the People of that Land to be firmly kept and observed A Statute 11. of E. 3. provides That except the King and his Children no Person great nor small within England Ireland and Wales or so much of Scotland as was then under the King's power should wear any Cloth but what was made in England Ireland Wales or such part of Scotland upon pain of Forfeiture of the Cloth and being Punish'd at the King's pleasure And whereas Mr. M. according to the use which he makes of publications in or by Parliaments in Ireland of Laws made in Parliaments of England would infer that no Statutes made here against Provisors could be of force in Ireland till the 32 d. of H. 6. when 't was Enacted there That all those Laws made in England as well as in Ireland be had and kept in force 't is evident that E. 3 d's Parliament and his Council acting in Parliament held that there was no need of other publishing and enforcing those Laws than was usual by virtue of the Great Seal of England The Commons Petitioned that the Provisions and Ordinances made in the Parl. 17. of that King concerning Provisions and Reservations from the See of Rome be affirmed by a Statute to endure for ever And particularly that if any Arch-Bishop or other Spiritual Patron do not present within Four Months after Voidance by a Man's accepting any Benefice from the See of Rome the Right of Patronage should accrue to the King And they pray that Commissions and Writs be sent to all ports of England Wales and Ireland and other Places within every County as there should be occasion to Apprehend all those who should carry any of the Bulls Process or Instruments then complained of The Answer in French is thus 'T is accorded and assented by the King the Earls Barons Justices and other Sages of the Law that the Things above-written be done and in reasonable form according to the prayer of the Commons Upon which there 's no doubt but either a Writ was sent to Ireland with this Act of Parliament in the form of a Charter to warrant Commissions for that purpose in Ireland or otherwise Commissions might issue from hence to apprehend such Offenders as should be found there The Statute of the Staple 27. E. 3. taking notice of the Damages to the People of the King's Realm and of his Lands of Wales and Ireland because the Staples had been held out of the said Realm and Lands appoints places for the Staple in Ireland as well as in England and Wales and creates a Forfeiture of the Wool and other Staple Commodities which any English Irish or Welsh should carry out of the said Realm and Lands with the like Penalty if they should receive Gold or Silver for them elsewhere than at the respective Staples At which Staples 't is to be observed that there were paid Duties and Customs granted by Parliament in England Another Statute of the same Year appoints That all Wines in England Ireland and Wales be Gauged on pain of Forfeiture and further Punishment at the King's pleasure And but Two Years before the Statute of Treasons which does not name Ireland was made for a Law to the whole Realm and for Ireland as part of it But none of the King's Subjects in Ireland were within that Law unless they were to be adjudged Subjects of the Realm of England And yet this Statute is ordered to be published and observed in Ireland as well as England in this manner To the Sheriff of Kent greeting We send you under our Seal certain Statutes made in our Parliament assembled at Westminster on the Feast of St. Hillary last past by us the Prelates Dukes Earls Barons and others of the Commonalty of our Realm of England to the said Parliament summoned Commanding that you cause the said Statutes to be read in your full County and that they be firmly observed and kept Teste the King at Westm the 6 th day of May. The like Writs of the same Date are sent to the Justice of Ireland what ought to be changed being changed But if the Parliaments of England had or exercised any Jurisdiction or Authority over Ireland hitherto at least 't is to be thought that 't was all taken from 'em by a Charter of E. 3. part of which he transcribes out of Mr. Prynn but for his satisfaction I shall give him more of it from the Record now to be seen in the Tower 't is a Charter of R. 2. of an Ordinance for the State of Ireland reciting and confirming the Charter 31. E. 3. beginning thus Quia ex frequenti side dignor insinuatione accepimus quod terra nra Hiberniae ecclesiaque Hibernica ac clerus populus ejusdem nobis subditus ob defectum boni regiminis ac per negligentiam in curiam Ministror regior ibin tam major quam minor hactenus turbati fuerint multipliciter gravati Marchiaeque terrae ipsius juxta hostes positae per hostiles invasiones vastatae occisis Marchionibus depraedatis eorum habitationibus enormiter concrematis caeterisque coactis loca propria deserere
desire or expectation of a Ratification there And whether even their Parliaments are not threatned if they send false intelligence to England For full proof that in this Ordinance the Authority of the Parliament of England was reteâ—â—â—d and asserted I must observe to Mr. M. that this Noble Charter to Ireland is but according to the usual Methods of Publishing Acts of Parliament put under the great Seal and thereby made a Patent or Charter but 't was an Ordinancâ— or Act of Parliament for the State of Ireland as may be seen by the Statute Roll. 3. After this Statute mentioning Parliaments in Ireland the Parliament here exercised the same Authority in making Ordinances and Laws for Ireland and the King and his Council held Ireland to be bound by those Laws as part of the Realm of Eng land A Statute made in the 36 th of that King provides that no Lord of England nor any other Person of the Realm except the King and Queen take purveyance on pain of Life and Member and takes from Mayors and Constables of Staples all Jurisdiction in Criminal Causes but I do not find any mention of Ireland and yet that both King and Council judged that the publishing them in Ireland would avail as much as the publishing them in England appears by the Writ to the Sheriff of Essex and Hertfordshire requiring him to publish the Statutes and Ordinances then made by the King with the common assent of the Prelates great Men and Commonalty in his full Parliament at Westminster and to return the Writ with an Account of the Execution of it to the King in his Chancery This Writ is tested by the King And in the same manner commands are sunt to the Justice of Ireland But notwithstanding this Transmission to Ireland of Statutes made here one of which is about Purveyance which is at least the Second of this kind made to bind Ireland Mr. M. may if he pleases hold that this was not Law in Ireland till 18. H. 6. But after all I would intreat the favour of Mr. M. to inform me whether according to himself such Acts of Parliament in Ireland were needful to Confirm Laws made here when if he puts a right construction upon the Record above cited 9 E. 1. and of the Record 50 E. 3. of a Writ from hence for the Expences of the Men of Ireland who last came over to serve in Parliament in England The Men of Ireland us'd to send their Representatives hither to the making the Laws by which they were to be bound till this sending of Representatives out of Ireland to the Parliaments of England was found in process of time to be very troublesome and inconvenient But whatever Mr. M. may imagin in this matter that sort of representation of Ireland in the Parliaments of England was no more than they had in the time of H. 3. and have 't is likely generally had to this day of persons entrusted to sollicit the Affairs of Ireland upon their numerous Petitions to the King and his Council in Parliament for which Receivers and Triers used to be appointed or other matters of concern to them But whether they were chosen by their Parliaments when they had them or elsewhere their Expences as appears by the Record cited by Mr. M. were levied by Authority under the Great Seal of England But I will shew a Record of the time of H. 3. when I will agree that they had Nuntii Messengers deputed as 't is likely from a Parliament in Ireland H. 3. in his Writ or Letter to the Barons of Ireland takes notice that by the advice of his People he had given a favourable answer to some of their requests made known by persons deputed from them But because those persons alledged that their Instructions were to insist upon all the particulars of their Requests the King sends a Precept to the Justice of Ireland under the Great Seal of England requiring him as it seems to summon a Parliament for he was carefully to open the matters before the Barons of Ireland and to know what they would give for the Liberties they desired The Justice had no Authority to have those Liberties setled in a Parliament there but was to signify their Answer to the King upon which the King would do what should be fitting without taking any Right from them That this was to be done in Parliament here and that the Messengers from Ireland were no Members of that Council of the King's People which sent the Answer is beyond dispute nor is there colour to believe that any of their Deputies or Representatives had in any King's Reign more to do here than those of the time of H. 3. had But surely no Man but Mr. M. will conclude that such Instances or the mention of the Consent or Petition of the Irish in some Particulars manifestly shew that the King and Parliament of England would not enact Laws to bind Ireland without the concurrence of the Representatives of that Kingdom Since therefore I have proved to the contrary from H. 2's first acquisition till towards the latter end of E. 3. and Mr. M. declares that he will consider the more antient Precedents of English Statutes which particularly name Ireland and are therefore said to be of force in that Kingdom I might rest here did not Mr. M. take notice of the Statute of the Staple 2 H. 6. and the Resolution of the Judges upon it 1 H. 7. in such a manner as makes it requisite to be set in a truer Light The Merchants of Waterford pursuant to the Licence granted them by E. 3. and confirmed by E. 4. had carried Wool contrary to the ordinary provision of the Statute 2 H. 6. which being seized by the Treasurer of Calâ—is as forfeited part to the King and part to himself as discoverer The Merchants by Bill in the Exchequer here pray restitution 'T is to be observed that the Act upon which the Wool was seized tho it creates a forfeiture of the value of Wool Butter Cheese and other staple Commodities carried from England Ireland and Wales to other parts than Calais and gives the Informer a 4 th of what shall be carried contrary to that Act from any County of the Realm makes no mention of Ireland as to the Informers share and therefore his Interest could bear no debate unless Ireland had been included and the Counties of Ireland were Counties within the Realm of England But Mr. M. says the 2 d Question was Whether the King could grant his Licence contrary to the Statute and especially where the Statute gives half the Forfeiture to the Discoverer But he might have observed that the Statute has an express saving of the King's Prerogative which goes thrô the whole and certainly related to the King 's granting Licences to the contrary in some particular
in the same bottom as the King does in England I say almost on the same bâ—ttom for the Irish Parliament have not only a Negative as the King has in England to whaâ—ever Laws the King and his Priâ—y Councils of both or either Kingdom shall lay before them but have also a liberty of proposing to the King and his Privy Council here such Laws as the Parliament of Ireland think expedient to be pass'd which Laws being thus proposed to the King and put into form and transmitted to the Parliament here of Ireland according to Poyning's Act must be pass'd or rejected in the very words even to a little as they are laid before our Parliament we cannot alter the least Iota In this Narrative of their Constitution under that Law he has omitted the mentioning what is very material that the Kings answer to what they propoâ—e is to be transmitted under the great â—eal of England and this is to be the Licence and Authority for the holding a Parliament in Ireland and therefore their Acts of Parliament since that settlement mention their being held by Authority under the Great Seal of England And there were two obvious ends and effects of this Law as Mr. M. himself owns 1. The preventâ—on of any thing passing in the Parliament of Ireland surreptitiously to the prejudice of the King or the English Interest of Ireland to which I must add or of England 2. To take from the Irish there all colour of pretence of holding Parliaments as an independent Kingdom by virtue of any Authority within that Land But how the King's Prerogative in the Legislature was advanced by this I do not understand since long before as well as notwithstanding this supposed Constitntion of an Independent Parliament held by Authority from the Great Seal of England the King had and has the Prerogative not only to dissolve the Irish Parliaments at his Pleasure but never to call any which this Gentleman ought to fear least such a claim as he makes might occasion and I would gladly know what part of their Constitution provides for the frequent holding of Parliaments in Ireland yet frequency of Parliaments in England is an undoubted part of the Fundamental Constitution of the English Monarchy Farther is it any advance to the Prerogative in the Legislature that a Prince who has the full exercise of an absolute Legislature at home is only possessed of a Provision against having any attempt made to the lessening that his settled and indubitable Prerogative I must needs say this Gentleman has a way of arguing beyond my apprehension for I cannot see the consequence how the Prerogative should be advanced if as he will have it the Irish Parliament is put almost on the same bottom as that the King stands on in England if it be so I should think it a lessening of the Prerogative to have an Irish Parliament almost coordinate with him which Mr. M. is very fearful least an English Parliament should pretend to And I as little understand the reason he gives why the Parliament of Ireland stands almost upon the same bottom with the King for says he they have not only a Negative Vote as the King has in England but liberty to propose yet the Laws must be pass'd or rejected without alteration This I take to be Foreign to the bottom on which either the King or that Parliament stands If it be meant that they are in a manner as absolute in this negative and liberty of purposing as the King is in England since it relates only to Law first desired from Ireland either by the Privy Council or Parliament there this Constitution of their Parliament is so far from giving them a negative to the Laws pass'd in England with declared intention to bind them in Ireland that the Authority of England is wove into the very Constitution and the Parliaments of Ireland own that Authority by their very Sitting and Enacting Mâ— M. having represented that Constiâ—ution of their Parliaments by which he thinks they stand almost upon the same bottom as the King did here makes this strong assumption If therefore the Legislature of Ireland stand 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 assume it to themselves where the King's Prerogative is much narrower and as it were reversed for there the King has only a negative Vote I humbly conceive 't is an encroachment on the King's Prerogative But he might consider 1. That as here by the Parliament he takes Lords and Commons without the King he mistakes the Fact in relation to their exercice of Power for they do not assume to themselves the Power of making any Law but with and under the King 2. Neither do they in the highest exercice of their Power take from the Irish any thing allowed or directed by Poyning's Law or any other Constitution 3. They do but assert the Chief Prerogative of the Crown of England by which due consent being bad our Kings give Laws to this Realm and all the Dominions belonging to it 4. The ancient course of the Proceedings of the Parliaments of England and their making all manner of Provisions for the Government of Ireland evince that Poyning's Law was rather an Indulgence to the English there directing a Method for their maintaining the face of a Legislature among themselves than any restraint of Power before vested in the Parliaments of England And after all this Law was never as I take it confirm'd by a Parliament of England I must not here omit the consequences which Mr. M. draws from the Parliament of England's pretending Power to impose any one Law upon Ireland 1. That 't will naturally introduce the Taxing them without their consent 2. That 't will leave the People of Ireland in the greatest confusion imaginable that they are not permitted to know which is the Supreme Authority which they are bound to obey whether the Parliament of England or that of Ireland or both and that the uncertainty is or may be made a pretence for disobedience 3. That 't will be highly inconvenient for England may make the Lords and People of Ireland think they are not well used and may drive them into Discontent 1. Not here to consider how far the Lordship of the Land of Ireland may infer the Taxing it if it should refuse to concur as it ought to its own Preservation since the Law of necessity is no farther to be used or considered than while the necessity is apparent I may say that this is no consequence to be apprehended and that as the Right of Taxing does not follow from the Right of Governing and the Nature of the Government depends upon the first Submission and that Interpretation and Confirmation of it which both the governing Nation and the governed have put upon it I must infer with deference to the National Authority that the
on the same reason may the rest of Adam's Children expect it But if this be taken with relation to the present Governments in the world then suppose this Gentleman hold a Commonwealth to be the freest state of mankind to be uniform he must believe that no Monarchies ought to continue longer than the people should think fit because according to his Maxim the People of a Monarchy have the same right to Liberty that the others maintain and directly to the present question no nation ought to have any dependence upon any other Nation And perhaps others will say neither ought they to have any protection 'T is certain that whether we consider the people of the same Nation or the relation which one Nation has to another their state or condition must depend upon Constitutions and Agreements express or tacit Indeed what Constitutions and Agreements are binding and for what time will fall under the consideration of Reason either of it self or aided and assisted by Revelation S. Paul having taught us That the Powers that are are ordained of God I should think that the common practice of the world which this Gentleman admits to be against his Notions is no small evidence of the right of Acquisitions made by one Nation upon or over another But if these could in right be carried no further than the damage sustained by the injured Nation the bounds of the Acquisitions would be very uncertain and desultory That no true Principle opposes the Power which England claims and exercises over Ireland might be shewn in a very narrow compass Yet when many glittering Arguments are made use of to support an unseasonable as well as groundless complaint it may be requisite to give direct Answers to those things which may seem most plausible and to lay such Foundations as may supersede the particular consideration of the rest to which end I shall shew 1. The nature of Mr. Molineux his Complaint 2. The true Foundation and Nature of that Right of which England is possessed in relation to Ireland and Mr. Molineux's Mistakes Omissions and wrong Comparisons and Inferences concerning it 3. That the Right which was at first acquired is so far from being departed from that 't is rather strengthened and confirmed and has been duly exercised as the good of England has required and in subordination to that and even in the greatest Instances now complained of 4. That his Politicks and seeming popular Notions are wrong and misapplied 1 st Mr. Molineux would insinuate into his Majesty's belief in his Dedication to him that some of late endeavour to violate those Rights and Liberties which the Irish or English there have enjoyed for above five hundred years And he plainly enough charges both Kings Lords and Commons of England and that acting Parliamentarily not only with this endeavour but with actual violations of that which to him seems the inherent Right of all mankind His Service to his Country and to all the Race of Adam he supposes to be call'd for by the present juncture of Affairs when the business of Ireland is under the consideration of both Houses of the English Parliament that is as his Margin explains it the Case of the Bishop of Derry in the House of Lords and the prohibiting the exportation of the Irish Woollen Manufacture in the House of Commons He complains That Acts of Parliament in England before the 10 th of H. 4. and 29 th of H. 6. had pretended to bind Ireland without any confirmation there tho they have not expresly claim'd this Right that there are modern Precedents of English Acts of Parliament pretending to bind Ireland but these are Innovations tho of his own shewing no more than was done before the 10 th of H 4. But he is sorry to reflect that since the late Revolution in these Kingdoms when the Subjects of England have more strenuously than ever asserted their own Rights and the Liberties of Parliaments it has pleased them to bear harder on their poor Neighbours than has ever yet been done in many Ages foregoing The first attempt which this Gentleman complains of since his Majesty's happy accession to the Throne of these Kingdoms is an Act made in great compassion for Relief of the Protestant Irish Clergy The next is one prohibiting all Trade and Commerce with France while England was engaged in an actual War of which Ireland was a miserable Seat Another is the Act for the better security and relief of their Majesties Protestant Subjects in Ireland wherein K. James's Irish Parliament at Dublin and all Acts and Attainders done by them are declared void And 't is further provided That no Protestant shall suffer any Prejudice in his Estate or Office by reason of his absence out of Ireland since December 25. 1685. And that there should be a remittal of the King's Quit-Rent from Decemb. 25. 1688. to the end of the War And the last is That for abrogating the Oath of Supremacy in Ireland and appointing other Oaths These are the Acts of Parliament by the suppos'd submission to which he will have it that the Rights of the People of Ireland have received the greatest weakening under his Majesty's Reign and they are made of all his Majesty's Subjects the most unfortunate These Acts are complained of as Violations of the Rights of a Kingdom compleat and absolute in it self without any subordination to England especially in relation to Parliaments That they are contrary to that amity which should be maintained between distinct Kingdoms or the Children of one common Parent which have distinct Rights and Inheritances absolutely within themselves and inconsistent with the Royalties and Preeminence of a separate and distinct Kingdom Against the common Laws of England which are in force both in England and Ireland by the original Compact Against the Statute Laws both of England and Ireland Against several Charters of the Liberties granted to Ireland Against the King's Prerogative Against the practice of all former Ages Against several Resolutions of the learned Judges of former times Destructive of Property Introductive of the greatest confusion and uncertainty imaginable And lastly inconvenient for England being likely to make the Lords and People of Ireland think they are not well used and may drive them into discontent And yet this Complaint must be thought very modest because if the Great Council of England shall resolve the contrary he declares he shall then believe himself to be in an Error and with the lowest submission ask pardon for his assurance I cannot in the least question but that august and wise Assembly will use that Method which he refers to for his Conviction yet since they are employed in Affairs of more immediate consequence than the asserting and clearing the grounds of that Authority which they have long been possessed of I shall think that I may
do some service to my Country in shewing 2 ly The true Foundation of that Right which England is possessed of in relation to Ireland and what are Mr. Molineux's principal Mistakes Omissions and wrong Comparisons and Inferences concerning it Here I hope to make it evident 1. That he mistakes the Grounds for the submission of Ireland to H. 2. as well as the Nature of it and omits material Passages which may illustrate that matter 2. That if he had been as conversant in Histories and Records as he would be thought he could never have had assurance enough to assert that England may be said much more properly to be conquer'd by W. 1. than Ireland by H. 2. 3. That he is as much mistaken in his comparison between Scotland and Ireland and that matter of his own shewing or admission might have convinced him of an essential difference 1. This Gentleman pretends to give the History of the Expedition of the English into Ireland which he supposes to have been in the Reign of H. 2. and that all the Right which has been acquired by England to have any Government or Superiority over that Nation was derived from within that King's Reign Which manifests his having seen very little of our English Antiquities and his not attending to what Irish Acts of Parliament might have taught him The Confessor's Law under the Title of the Rights and Appendages or Dependencies of the Crown of England expresly names Ireland as one which it supposes to have been first annexed to the Crown of England by King Arthur Accordingly besides other Authorities which might be produced a very Antient Manuscript in Latin Verse in the Cotton Library ascribed to a Gildas who lived in the Year 860. speaking of several things done by that King in this British Kingdom says His ita dispositis in regnum tendit Ybernum These things thus settled he for Ireland goes Another Manuscript in the Cotton Library treating of the number of the Courâ—ies of England and the Countrys and Islands which of Right and without doubt belong to the Crown and Dignity of the Kingdom of Britain and the several Laws or Customs by which they were governed among the places subject to the Danelege mentions Man the Orcades Gurth and the other Islands of the Western Ocean about or in the way towards Norway and Danemark within which we may well think Ireland to have been meant since the Isle of Man is one of the Islands there taken to be about bordering upon or in the Road to Norway and Denmark Tho the Confessor's Law places the Foundation of the Right of the Crown of England to Ireland in the acquisition of King Arthur it must be agreed that this was so antiquated and so many Changes had happened in the State of this Nation between his time and King Edgar's that he might well have no regard to any Right from King Arthur And however might suppose himself to have been the first of the Anglo-Saxon Kings who had subjected Ireland or the greatest part of it to the Crown of England which that he did we have the Testimony of his memorable Charter Ego Eadgarus Anglorum Basilius omniumque Regum insularum quae Britanniam circumjacent cunctarumque nationum quae infra eam includuntur Imperator Dominus Gratias ago Deo Omnipotenti Regi meo qui meum Imperium sic ampliavit exaltavit super Regnum patrum meorum qui licet Monarchiam totius Angliae adepti sunt à tempore Ayelstani qui primus Regum Anglorum Nationes quae Britanniam incolunt sibi armis subegit nullus tamen eorum ultra ejus fines Imperium suum dilatare aggressus est Mihi autem concessit propitia divinitas cum Anglorum imperio omnia Regna Insularum Oceani cum suis ferocissimis Regulis usque Norvegiam maximamque partem Hiberniae cum suâ nobilissimâ civitate Dubliniâ Anglorum regno subjacere Quos etiam Armis meis imperiis colla subdere Dei juvante gratiâ coegi I Edgar King of the English and Emperor and Lord of all the Kings of the Islands which lie about Britain and of all Nations that are included within it give Thanks to God Almighty my King who hath so inlarged and exalted my Kingdom above the Kingdom of my Ancestors who altho they had gain'd the Monarchy of all England from the time of King Athelstan who was the first of the Kings of the English that brought under him by Arms the Nations which inhabit Britain yet none of them attempted to stretch his Empire beyond its bounds But the propitious Divinity has granted me with the Empire of the English to put under the Dominion of the English all the Kingdoms of the Isles of the Ocean with their fiercest little Kings as far as Norway and the greatest part of Ireland with its most noble City Dublin Even all those by the help of God's Grace I have compell'd to submit their Necks to my Commands From this time 't will be evident to any who observe the stiles of our Kings till H. II's time that the Authority of England over Ireland was taken to be included under the stile of King of the English Saxons of Britain of the Island of Albion or the like not but that for several Reigns before the time of H. II. Parliaments in which the King's Charters pass'd were often careful to have the stile more expressive of the Title to the Dominions out of England For instances of both kinds Edgar after the Charter above cited stiles himself Basileus dilectae Insulae Albionis subditis nobis sceptris Regum Scottorum Cumbrorumque ac Britonum omnium circumcirca Regionum King of the Beloved Island of Albion the Scepters of the Kings of the Scots the Cumbers and the Britons being subject to us and of all the Regions round about In another Basileus Anglorum Imperator Regum Gentium King of the English and Emperor of the Kings of Nations After this King Ethelred stiles himself sometimes Ego Adelred totius Albionis Monarchiam gubernans I Athelred governing the Monarchy of all Albion Subscribes Rex Anglorum King of the English Sometimes Ego Athelred totius Britanniae Basileus I Athelred King of all Britain Sometimes Ego Ethelred Britanniae totius Anglorum Monarchus I Ethelred Monarch of all the Britain of the English Sometimes Ego Ethelred totius Insulae I Ethelred King of the whole Island Subscribes Rex Rector Angulsexna King and Ruler of the Anglo-Saxons That Ireland and other Kingdoms and Dominions were included within this stile will appear by other Charters of the same King Thus he stiles himself Totius Anglorum Gentis Basileos caeterarumque Nationum in circuitu persistentium primatum gerens King of all the English Nation and having the Supremacy over the other Nations living round about At another time he stiles
Parliaments of its own as free and independent as England or that it should be governed by the Laws made and to be made by England Mr. Molineux confesses that H. II. within five years after his Return from Ireland created his younger Son John King of Ireland at a Parliament held at Oxford he might have learn'd from the same Authority that in that Parliament he not only disposed of several petty Kingdoms there to hold of him and John his Son but Hoveden has these words which comprehend Lands as well as Governments Postquam autem Dominus Rex apud Oxenford in praedicto modo terras Hiberniae earum servitia divisisset fecit omnes quibus earundem custodias commisserat homines suos Johannis filii sui devenire But after the Lord the King had at Oxford in manner aforesaid divided the Lands of Ireland and their Services he caused all those to whom he had committed the Custody of them to do homage to him and his Son John to swear Allegiance and Fidelity to them Bromton says Apud Oxoniam idem Rex Angliae Johannem filium snum coram Episc regni sui Princip Regem Hiberniae constituit Et postea fecit quosdam familiares suos sibi Johanni filio suo ligantias fidelitates homagia contra omnes homines facere jurare Quibus terras Hiberniae dedit distribuit in hunc modum c. At Oxford the said King constituted his Son John King of Ireland before the Bishops and Princes of his Kingdom And afterwards he made some of his Courtiers to do and swear Allegiance Fidelity and Homage to himself and his Son John against all men To whom he gave and distributed the Lands of Ireland in this manner c. If what the King did in a Parliament was a Parliamentary Act here was an Act of the English Parliament which by Mr. Molineux's Confession impos'd a King upon Ireland to whom they had not sworn any otherwise than as they swore to submit to the English Laws and he should have observed that herein according to his own inference of the making Ireland a separate Kingdom the English Parliament undertook to discharge the Oath which the Irish had taken to be true to H. 2. and his Heirs and sutably to the Legislative Authority over Ireland in this Particular the same Parliament at Oxford disposed of and distributed the Lands of Ireland without expecting any Ratification from thence Here 's a Parliamentary and cotemporary Exposition of what this Gentleman calls the Original Compact between England and Ireland I must agree tho he has not observ'd it that notwithstanding H. Il's Acquisition in Ireland an Irish Native had quiet possession of a Kingdom which he seem'd to claim as chief King over the Irish This was Roderic King of Connaught who upon paying his Tribute and performing his appointed Service was according to Hoveden to hold his Land as he held it before H. II. enter'd Ireland which could not be true in a strict sense unless he were dependent upon the Crown of England before and however this was a Grant after a more absolute Acquisition and three years after Girald holds as do the Irish Statutes that he had conquer'd the whole Land of Ireland Abbat Benedict an Author of that time to be seen in the Cotton Library speaking of H. II. says Concedit Roderico ligio suo Regi Conautae quamdiu ei fideliter serviet ut sit Rex sub eo paratus ad servitium suum salvo in omnibus jure honore Domini Regis Angliae suo He grants to Roderic his Leige-man King of Connaught that as long as he faithfully served him he should be a King under him ready for his Service saving in all things the Right and Honour of the Lord the King of England and his As it appears by Record by the 7 th of King John the King of Connaught had two thirds duly taken from him for not performing his Service or else he never had more than a third of that Kingdom granted for then he acknowledged that he held a 3 d part in the name of a Barony and for the other two thirds proffers the King Duos Cantredos cum Nativis eorundem Cantredorum de praedictis duabus partibus ad firmandum in eis vel faciendum inde voluntatem suam Two Cantreds with the Natives of those Cantreds to let 'em to farm or to do with them what he pleased Thus I take it his Kingdom was as much dependent upon the Crown of England as any Barony in Ireland or England and as subject to Forfeiture And 't is probable that this King was the head of the O Conoghors of Connaught who are 3 E. 2. admitted to be entituled to the English Law But tho the Law of England was not current beyond the English Pale or those Cantreds and Divisions of Irish who continued under Obedience to the English yet the Crown of England has from very antient times not only laid claim to the Lordship over the whole Land of Ireland but their Parliaments have recognized this Right more than once Mr. M. if he had pleased might have found that Acts of Parliament made in Ireland lay a much earlier Foundation of the Right of the Crown of England to the Land of Ireland even than our Confessor's Law does A Statute made in Ireland 1 Eliz among sundry Titles which the antient Chronicles in the Latin English and Irish Tongues alledge for the Kings of England to the Land of Ireland derives one from Gormond Son of Belin King of Great Britain This King our Historians call Gurgunstus and is said to have reign'd in Great Britain 375 years before the Christian Aerd Grafton agreeing with the Irish Statute tells us that in his return from Denmark he met with a Fleet of Spaniards which were seeking for Habitations to whom the King granted the Isle of Ireland to inhabit and to hold of him as their Sovereign Lord. The Statute made in Ireland 13 C. 2. recognizing his Title has these words Recognitions of this nature may seem unnecessary where your Majesty's Title to this your Realm is so clear as that it is avowed in sundry Acts of Parliament heretofore made within this Kingdom in the times of your Majesty's Royal Progenitors of famous memory and SO ANTIENT AS IT IS DEDUCED NOT ONLY FROM THE DAYS OF KING H. 2. your Majesty 's Royal Ancestor BUT FROM TIMES FAR MORE ANTIENT AS BY SUNDRY AUTHENTICK EVIDENCES MENTIONED IN THE SAID ACTS AND RECORDS OF THIS YOUR MAJESTY'S KINGDOM MAY EVIDENTLY APPEAR Since Mr. Molineux allows Acts of Parliament made in Ireland to have full Authority I hope he will confess that he has given a very imperfect and undue account how Ireland became a Kingdom annexed to the Crown of England and thus not here to observe that he need not have gone
of his stile of Lord of Ireland in imposing Laws and a King upon ' em And I would gladly know what Irish Laws and Customs he swore to maintain Tho therefore I am as avers to the common Notions of Conquest as this Gentleman especially to the supposition that God in giving one Prince a Conquest over another THEREBY puts one in possession of the others Dominions and makes the other's Subjects become his Subjects or his Slaves as they come in upon conditions or at the will of the Conqueror Yet I must desire Mr. M. to explain those Acts of Parliament made in Ireland which not only seem to import that the Crown and Kingdom of England had made an absolute acquisition of the Land of Ireland but use that scurvy word Conquest An Act 28 H. 8. recites That the King's Land of Ireland heretofore being inhabired and in dâ—e obedience unto the King 's most noble Progenitors Kings of England who in the right of the Crown of England had great Possessions Rents and Profits within the same Land had grown into great ruin and desolation for that great Dominions Lands and Possessions had by the King's Grants course of Descents and otherwise come to Noblemen of England by whose negligence the wild Irish got into possession the Conquest and winning whereof in the beginning not only cost the King 's noble Progenitors but also those to whom the Lands belong'd charges inestimable and tho the King's English Subjects had valiantly opposed the Irish yet upon their absenting themselves again out of Ireland the Natives from time to time usurped and encroached upon the King's Dominions and particularly that the Earl of Kildare with his accomplices endeavour'd to take the Land of Ireland out of the King's possession and his Heirs thereof for ever to disherit For these and divers other hurts and enormities like to ensue to the Commonweal of the Island in respect of the inestimable Charges which the King had sustained and apparently had occasion to sustain for and about the conquest and recontinuance of the same out of his Enemies possession tho the King had right to all the Lands and Possessions there referr'd to and tho he might justly insist upon the Arrears of two parts of the Land of those who had absented themselves which might amount to more than the purchase of 'em it vests in the King and his Heirs as in the Right of the Crown of England only the Lands of some particular persons The Stature of the Queen attainting Shane Oneile speaks of populous rich and well-govern'd Regions wealthy Subjects beautiful Cities and Towns of which the Imperial Crown of England had before that time been conveniently furnished within the Realm of Ireland which after being lost had been recontinued to the Queen 's quiet possession But the Rebel Shane Oneile refusing the name of a Subject and taking upon him as it were the Office of a Prince had enterprized great Stirs Insurrections and horrible Treasons against her Majesty her Crown and Dignity imagining to deprive her Highness her Heirs and Successors from the real and actual possession of her Kingdom of Ireland her true just and ancient Inheritance to her by sundry Descents and authentick strong Titles rightfully and lawfully devolved And having mention'd a Title from Gurmond the Son of Belin King of Great Britain says Another Title is as the Clerk Giraldus Cambrensis writeth at large of the History of the Conquest of Ireland by King H. 2. your famous Progenitor The Title to the Land then recognized was abundantly strengthned and confirmed by Irish Parliaments in the time of J. 1. and since In the Act of Recognition to J. 1. they tell him of his having quench'd the most dangerous and universal Rebellion that ever was rais'd in that Kingdom in the suppressing whereof the unreform'd parts of the Land which being rul'd by Irish Lords and Customs had never before receiv'd the Laws and civil Government of England were so broken and reduced to Obedience that all the Inhabitants thereof did gladly submit themselves to his Highness's ordinary Laws and Magistrates which gave unto his Majesty a more entire absolute and actual possession than ever any of his Progenitors had All Ireland being thus brought into subjection to the Crown and Laws of England K. James taking notice of Laws which had been made after the Conquest of that Realm by his Progenitors Kings of England to keep up the distinction between the English and the Natives of the Irish Blood that he had then taken 'em all into his protection and that they lived under one Law as dutiful Subjects of their Sovereign Lord and Monarch repeals those dividing Laws After this the Irish Parliament granted C. 1. four Subsidies rightly considering the vast and almost infinite expence of Men Mony Victuals and Arms sent out of England thither by the King and his Royal Progenitors for reducing that Kingdom into the happy condition wherein it then stood And sutably to the import of the word Conquest Acts of Parliament of that Kingdom in the Reign of that King shew that the Titles to Lands of the English Plantation or which they from time to time gain'd from the Irish were enjoy'd by Grants from the Crown and for securing the Estates to Vndertakers Servitors Natives and others all the Lands in several Counties commonly call'd Plantation Lands were vested in the King his Heirs and Successors in right of the Imperial Crown of England and Ireland The Stat. 14 15 C. 2. holds the Irish Rebels to be subdued and conquer'd Enemies and therefore vests all their Lands in the Crown of England in order to make satisfaction to the Protestant Adventurers for the reducing that Kingdom to its due obedience and to enable the Crown to extend Grace to such as should be held deserving of it Reprisals being first made to the Protestant Proprietors Tho therefore I am far from admiring the Lord Coke's reasoning in Calvin's Case I may here subjoin part of Mr. M's reflection upon him and refer him to the Irish Acts of Parliament to qualify his Censure of the Ld Coke's restriction of the Opinion in the Year-book 2 R. 2. that the Irish are not bound by Statutes made in England because they have no Knights of Parliament here which says the Lord Coke is to be understood unless they be specially named To this assertion Mr. Molineux admits he gives colour of reason by saying That tho Ireland be a distinct Dominion from England yet the Title thereof being by Conquest the same by Judgment of Law might by express words be bound by the Parliaments of England To confound the Lord Coke I would fain know says this Gentleman what the Lord Coke means by Judgment of Law Whether he means the Law of Nature and Reason or of Nations or the Civil Laws of our Common-wealths For answer to which I need at present only
Kingdom of England neither was this any diminution to the Prerogative of the Crown The instance of Chester I may well bring to this point being authorized by the Learned Judg Shardlow in the time of E. 2. In an Action of Debt in the King's-Bench here upon a Bond seal'd at Chester that learned Judg says Chester is out of our Jurisdiction here insomuch that there is not any Minister in that County answerable here for what he has done Of a Deed done out of the Jurisdiction here or out of the Realm as at Paris or elsewhere beyond Sea I ought not to answer The Counsel urges that the Power here extends throughout the Realm of England and to a Deed done within the Realm of England you ought to answer and Chester is within England But Shardlow insists upon his former Judgment and adds IRELAND IS WITHIN THE REALM and to a Deed committed there I shall not answer here Also Duresm is within England yet I shall not answer at all here because the Court cannot try the Fact if denied This shews plainly that at that time Ireland was as much part of this Realm as Chester that the distinction of Jurisdictions was not for want of Superiority This has been maintain'd over Chester and Ireland by Writs of Error upon Judgments in Law The reason of which is given by Chief Justice Vaughan that otherwise they may insensibly alter the Law appointed or permitted or give judgment to the lessening the Superiority Mr. Molineux will have it th◠this removal of a Judgment from the King's Bench of Ireland by Writ of Error into the King's Bench of England dos not infer the subordination of Ireland to the Kingdom of England but that this was a method appointed by an Act of Parliament of Ireland which is lost among a great number of other Acts which they want for the space of 130 years at one time and 120 a◠another 'T is easily supposed by him that they had Parliaments of their own for the most of those times but others will believe that they were generally governed by the Laws of England according to the Tenour of their submission to H. 2. and the interpretation then put upon that submission But methinks the force of his Argument in relation to the ordinary Jurisdictions the King's Bench of England exercises over that of Ireland is not to be fear'd He is pleased to say erroneous Judgments might have been removed from England into the King's Court in Ireland for so certainly it must be since the Court travelled with the King For which I need only mind him of his own quotation of Sir Richard Pembrough's Case according to which for the King to have required the attendance there of the Tenants in chief who were the Judges in his Court here would have bin a banishment But 't is certain this could be no part of their Duty declared by the constitutions of Clarendon 10 H. 2. in affirmance of the antient customs of the Realm of England under that clause which requires 'em to be at the Trials and Judgments of the King's Courts Besides I shall shew that the King's Court in England which when not meant of the Parliament did manifestly in those antient times relate either to a Counsel chosen in Parliament and acting out of it by Authority from thence or to the Body of the Tenants in chief the Great Lords for whose easing themselves of such troublesome attendances the later Jurisdiction of the present King's Bench has sprung up was possess'd of the Superiority of ordinary Jurisdiction over Ireland before Mr. M. can shew that they had any Acts made in Ireland of any kind except that wherein they first gave themselves up to obey and depend on the English Legislature and unless they can produce Acts of their Parliaments for raising Aids to the Crown of England In the 37 th of H. 3. one Baret complain'd to the King of injustice done him by Justices itinerant at Limbrick Upon which the Justices of Ireland were commanded to send the Record before the King Where the Record was commanded hither per saltum without any regard to the King's Bench of Ireland And another Record in the same Year before Shardlow and other Justices at Dublin as I take it of the Common Pleas there was by Writ of Error from hence transmitted to the Justice of Ireland Without which it seems he was then held to have no Authority to proceed in Ireland In the 20 th of E. 1. a Writ of Error had removed out of Ireland a Record of a Judgment of Felony Which indeed was remanded not for want of Jurisdiction to correct the Error of the Judges in Ireland But 1. Because there was no notice to the King's Attorney General for Ireland or at least he did not attend 2. Because 't was a question of Fact Quia nullus venit ex parte Regis ad sequendum pro ipso qui veritatem sciverit ideo haec non potest ad examinationem set magis expedit domino Regi quòd in partibus Hiberniae ubi feloniae praed perpetrari debent examinentur modo debito terminentur Because no body who may know the truth comes of the part of the King to prosecute for him Therefore this cannot proceed to examination but 't is expedient for the King that the said Felonies should be examined and duly determined in Ireland where the said Felonies are suppos'd to have been committed However Mr. M. conceives it manifest that the Jurisdiction of the King's Bench in England over a Judgment in the King's Bench of Ireland dos not proceed from any subordination of one Kingdom to the other because the Judges in England ought and always do judg according to the Laws and Customs of Ireland and not according to the Laws and Customs of England any otherwise than as these may be of force in Ireland But 1. 'T is evident that the Judges neither will nor can judg according to any Law or Custom of Ireland which is contrary to the Rules of our Law or which has not been allowed there as no way prejudicial to the Law here According to his instance of a Declaration for an Acre of Bog a word not known in England but well enough understood in Ireland Which I may answer with a parallel case lately adjudged in the Exchequer of England One having spoken scandalous welsh words in Wales or in a part of England where the Welsh Tongue is used was libel'd against in the Ecclesiastical Court there Upon which the Court of Exchequer was moved for a Prohibition because the Words were insensible and of no signification But no Prohibition was granted because they were understood where they were spoken And thus 't is in relation to the particular Instances of Mannors or inferiour Courts Therefore 2. By the same reason that the judging according to the Law used in Ireland would
imply that there is no Subordination 't will follow that the Inferior Courts in England are not subordinate to the Courts of Westminster-Hall and I may add neither is the King's Bench of England subordinate to the House of Lords As to the question of their Jurisdiction occasioned as Mr. M's Margin has it by the Case of the Bishop of Derry I need say little here referring him to the Judgment of the Lords and to that exercice of the Judicial Power which I shall have an opportunity of shewing in the Reign of E. 1. But as to his supposed clear Argument against the subordination from the Lords doing nothing upon the Petition of the Prior of Lanthony who appeal'd to the Parliament of England from a refusal of the King's Bench here to meddle with a Judgment which had pass'd in the Parliament of Ireland 'T will admit of several Answers 1. This came not before the Lords by Writ of Error or by Appeal from the Lords of Ireland but was a complaint of the King's Bench here 2. This was after the Charter which I shall afterwards shew placing a judicial Power to some Purposes in their Parliaments But whether they exceeded that Authority 't was not for the King's Bench to judg but for that Power from whence their Charter was derived 3. This Petition seems either to have come too late or to have been waved for if it had fallen under consideration 't is probable that some Answer to it could have been endors'd as was usual in former times But that the ordinary Jurisdiction both of the Lords in Parliament and of the King's-Bench here is but an incident to the Superiority of the Crown of England will be much clearer than any thing Mr. M. has urged And whatever Mr. M. conceives the Annexation of Ireland to the Crown of England will sufficiently manifest the Subordination tho he supposing that this was done by the Irish Statute which annexes it as a Kingdom with others which declare it annex'd as a Land or Dominion of a lower Character conceives little more is effected by these Statutes than that Ireland shall not be aliened or separated from the King of England who cannot hereby dispose of it otherwise than in legal Succession along with England and that whoever is King of England is ipso facto King of Ireland But if these Statutes bating the name of Kingdom which the Parliament of England afterwards gave them are only declaratory of the antient Right of the Crown of England then I may well hold that there is not so much effected by these Statutes as he yields it being only the operation of Law And if by operation of Law a King of England tho not succeeding by a strict Right of Descent but by the Choice or Declaration of the States of this Realm is ipso facto King or Lord of Ireland I would gladly know how that Kingdom or Land which he owns to be thus inseparably annex'd to the Imperial Crown of England can be a compleat Kingdom And since he is pleas'd to ask whether multitudes of Acts of Parliament both of England and Ireland have not declared Ireland a compleat Kingdom and whether 't is not stiled in them all the Kingdom or Realm of Ireland I would entreat the favour of him to shew me one Act of Parliament of either Kingdom which says or all Circumstances consider'd implies that Ireland is a compleat Kingdom or that ever any Parliament of their own held it to be advanced to the Dignity of a Kingdom before 33 H. 8. tho as they acknowledg the Kings of England had Kingly Power there long before I must own that as the name of King was in H. 8's time thought requisite to charm the wild Irish into Obedience so in Queen Elizabeth's time Imperial Crown was thought to make a conquering Sound but this was never ascribed to it by any Parliament of Englandâ— nor that I can find even of Ireland before her Reign or since But the one Imperial Crown upon which Ireland has been and still is dependent is the Crown of England sor this the Statute of Ireland before that was made a Kingdom is express having these words Calling to our remembrance the great Divisions which in time past have been by reason of several Titles pretended to the Imperial Crown of the Realm of England whereunto this your Land of Ireland is appending and belonging So another in the same Year Forasmuch as this Land of Ireland is depending and belonging justly and rightfully to the Imperial Crown of England it enacts that the King his Heirs and Successors Kings of the Realm of England and Lords of this said Land of Ireland shall have and enjoy annexed and united to the Imperial Crown of England all Honours Dignities Pre-eminencies and Authorities c. belonging to the Church of Ireland If Mr. Molineux observes duly Ireland has all these Imperial Rights declared in the Irish Statute 33 H. 8. c 1. but I cannot find by what Rule he insers this from an Act of Parliament which is express that the King of England shall have the Name Stile Title and Honour of King of Ireland with all manner of Preheminencies c. as united and knit to the Imperial Crown of the Realm of England Indeed it shews that under the name of Lord the King had the same Authority but the name of King was thought likely to be more prevalent with the Irish Men and Inhabitants within that Realm The Statute 11 Jac. 1. declares him King of England Scotland France and Ireland by God's Goodness and Right of Descent under one Imperial Crown And the Statute 10 C. 1. calls this the Imperial Crown of England and Ireland And indeed Mr. Molineux would do well to shew that ever any of our Kings took any Coronation Oath for Ireland otherwise than as Kings of England And yet I know not what he may do when his hand 's in since he has the Art to transubstantiate their Recital of an Act of Parliament in England which declares that Popes had usurped an Authority in derogation of the Right of the Imperial Crown of the Realm of England recognizing no Superiour under God but only the King and being free from Subjection to any Man's Laws but only such as have been devised made and ordain'd within the Realm of England or to such other as by sufferance of the King and his Progenitors the People of the Realm of England had taken at their free Liberty by their own Consent to be used among them and have bound themselves by long Custom to the observance of the same To infer that 't is thus with Ireland because the enacting part of that Statute which has this Recital is promulged for a Law in Ireland is to suppose Ireland to be turned into England and that the Commissioners who are by virtue of that Act and the Great Seal to exercise that
Ecclesiastical Jurisdiction which the Statute in England placed in the See of Canterbury are become English Archbishops And with the like way of reasoning he would infer that Acts of Recognition in England are of no Force in Ireland till the Irish have recognized the same King and yet confesses That whoever is King of England is ipso facto King of Ireland and the Subjects are obliged to obey him as their Leige Lord That they in Ireland are so annexed to England that the Kings and Queens of England are by undoubted Right ipso facto Kings and Queens of Ireland To use Mr. M's own Expression I am sure there 's an end of all Speech if he does not confess that a Prince rightfully possest of the English Throne is thereby King of Ireland before any Recognition made by a Parliament there and yet not withstanding this generous Concession he immediately subjoins And from hence we may reasonably conclude that if any Acts of Parliament made in England should be of force in Ireland before they are receiv'd there in Parliament they should be more especially such Acts as relate to the Succession and Settlement of the Crown and Recognition of the King's Title thereto and the Power and Jurisdiction of the King And yet we find in the Irish Statutes 28 H. 8. c. 2. An Act for the Succession of the King and Queen Ann. And another c. 5. declaring the King to be supreme Head of the Church of Ireland Both which Acts had formerly pass'd in the Parliament of England So likewise we find amongst the Irish Statutes Acts of Recognition of the King's Title to Ireland in the Reigns of H. 8. Queen Elizabeth King Charles 2. K. William and Q. Mary by which it appears that Ireland tho annexed to the Crown of England has always been look'd upon to be a Kingdom compleat within it self and to have all Jurisdiction to an absolute Kingdom belonging and subordinate to no Legislative Authority on Earth Tho 't is to be noted those English Acts relating to the Succession and Recognition of the King's Title do particularly name Ireland Before I enter into the enquiry how this can be made consistent with a Kingship ipso facto before the Recognition in Ireland 't will be requisite to inform him that we have had Settlements of the Crown by Acts of Parliament here which never were formally received by any Parliament in Ireland and yet such Act of Parliament here has ever been held to bind Ireland tho 't was not expresly named and that tho the Settlement has carried the Crown from the elder Branch of the Royal Family for instance 7 H. 4. at the request of the Lords and Commons in Parliament 't was enacted That the Inheritance of the Crown and of the Realms of England and France and of all other the King's Seigniories or Lordships beyond Sea with the appurtenances be put and remain in the Person of the said King and the Heirs of his Body issuing and 't was ordain'd established pronounced expressed and declared that Prince Henry the King 's eldest Son be Heir apparent to succeed him in the said Crown Realms and Seigniories to have them with all their Appurtenances after the King's decease to the Prince and the Heirs of his Body with Remainders over to the King 's 2 d and 3 d Sons and the Heirs of their respective Bodies successively And according to this Form 1 H. 7. 't was ordain'd established and enacted by Authority of Parliament that the Inheritances of the Crowns of the Realms of England and France with all the preheminence and dignity Royal to the same appertaining and all other Seigniories belonging to the King beyond Sea with the Appurtenances in any manner due to them or appertaining do stand and remain in the most noble Person of their said Sovereign Lord H. 7. and the Heirs of his Body lawfully issuing for ever with the Grace of God to endure and in no other Persons Not to trouble Mr. M. with an enquiry whether these or any other Acts of Parliament in England of former Reigns united Ireland to England otherwise than as they declared their intention for that Seigniory or Dominion to go along with the Government of England or what Act of Parliament in Ireland since the first submission to H. 2. created an Annexation of the Land of Ireland to the Crown of England I must entreat him to explain How it should come to pass that the King of England ipso facto by his being made King here is King of Ireland and yet that those Acts of Parliament here by which the King is declared King without and against a strict courst of descent are of no force till the King is recognized by Act of Parliament in Ireland If a King of England as such is ipso facto King of Ireland is he not so before any Act of Recognition there And if so what can that or other Acts repeating the Laws made in England signify more than a full publication of what was the Law before If the Election or Declaration of a King by a Parliament in England gives a Law in this matter to Ireland and such a King is to be obey'd by virtue of that Law ipso facto before he is received and acknowledged by a Parliament in Ireland do their subsequent Recognitions in the least infer that Ireland is a compleat Kingdom Is it any better than a Contradiction to hold that a King of England as created or declared in a Parliament of England is thereby or at the same instant King of Ireland and yet that Ireland is a Kingdom so compleat in it self that he is no King till the Act of Parliament creating or declaring him King is confirm'd by a Parliament in Ireland Or take it the other way No Act of Parliament in England is of any force till confirmed in Ireland and yet a King declared by a Parliament of England tho he was not King before such declaration is thereby or ipso facto King of Ireland that is an Act of Parliament of England is not of force in Ireland till confirm'd there and yet 't is of force ipso facto by the being enacted here Does it not therefore follow that such an annexation of Ireland to the Crown of England as makes the King of England ipso facto King of Ireland destroys the supposition that their Parliaments have Authority to confirm or reject Laws made by the Legislature in England Or otherwise that the supposition of such an Authority in the Parliament of Ireland destroys that annexation which Mr. M. himself yields Further yet 't will appear that even after a Parliament of Ireland had as far as it could annex'd that Land as a Kingdom to the Imperial Crown of England an Annexation here was requisite for the ratifying what had been done in Ireland Therefore 34 and 35 H. 8. an Act was made by the Parliament of England for
be executed even in Palatinates nor does it appear that the King's Council in Parliament disallowed of their Proceeding â— for nothing was done upon this â—etâ—tion any more than referring it to the next Parliament In the Case of one Allen Fitzwaren they Ordered a Writ from the Chancellor of England to require the Justice of Ireland to examine whether a Judgment about Title of Land had been given while a Man was absent and under the King's Protection requiring that if any thing was done contrary to Protection it should be amended in due manner And as the Lords in Parliament then exercis'd a Jurisdiction over Ireland it appears that out of it the High Admiral of England had Conuâ—ance of all maritime Causes as well throughout Ireland as England from the time then beyond the memory of Man which must relate to the general Prescription which is at this day as far since as the beginning of R. 1. Son to H. 2. That during the Reign of E. 1. Irel. was govern'd as a part of England or appurtenant to it and that the Laws made here wanted no other Publication than what was in obedience to the Great Seal of England affixed to Writs and Charters or Exemplifications of our Acts of Parliament by Authority from hence I think may be beyond dispute which might excuse my not dwelling upon the unfortunate Reign of E. 2. and yet there are some evidences not to be neglected of England's being then possess'd of its ancient Authority over Ireland and that tho' at least from the 3 d. of that King's Reign Mr. M. supposes that they had a regular Legislature in Ireland In the 10 th of that King the English in Ireland petitioned him for a Constitution that a Parliament should be holden there once a Year Upon this and other things then desired the King under the Great Seal of England commands the Justice of Ireland to Summon a Parliament there to consider what was sit to be done and to certifie the result into England upon which the King declared that he would by the advice of his Counsel ordain what should be sitting but nothing more appears of that matter which was the farthest step towards settling an Annual Parliament in Ireland In the 12 th of that King an Act of Parliament was made in England with this Preamble Forasmuch as divers People of the Realm of England and of the Land of Ireland have hereto fore many times suffered great Mischiefs Damage and Disherisons by reason that in some Cases where the Law failed no Remedy was ordained and also forasmuch as some points of the Statutes heretofâ—re made had need of Exposition our Lord King Edward Son to King Edward desiring that full Right may be done to his People at his Parliament holden at York the third Week after the Feast of St. Michael the 12th Year of his Reign by the Assent of the Prelates Earls Barons and the Commonalty of his Realm there assembled hath made these Acts and Statutes following the which he willeth to be observ'd in his said Realm and Land Though Ireland is in some sense part of the Realm of England yet here 't is distinguished as a Land intended to be bound tho it had no Commonalty of its own to represent it in Parliament and there is new Remedy provided where the Law had failed as well as the explaining what was Law before that part at least which creates a Forfeiture of Wine and Victuals sold by any Officer appointed to look after the Assises of them was absolutely new This Statute was transmitted to Ireland by the following Writ under the Great Seal of England and the Name of the Party who received it is enter'd upon Record Rex Cancel suo Hibern ' Salutem Quaedam statuta per nos in Parl. nostro nuper apud Ebor ' convocato de assensu Prel Com. Bar. totius Communitatis regni nostri ibid ' existentis ad Commun util regni nostri ac terrae Hibern ' edita vobis sub sigillo nostro mittimus consignata Mandantes quod Stat illa in dicta Cancel lariâ custodiri ac in rotulis ejusd Cancel irrotulari sub sigillo nostro quo utimur in Hiberniâ in forma patenti exemplificari ad singulas placeas nostras in ter praed singuloâ— comitat ejusd ter mitti facias brevia nostra sub dicto sigillo minist nostris placearum illar Vicecom dict Com. quod statuta illa coram ipsis publicari ea in omnibus singulis suis artic quantum ad eor singulos pertinet â—irmiter faciant observari Teste R. apud Clarendon 10 die Sept. An. quarto decimo The King to his Chancell of Ireland Greeting We send you under our Great Seal certain Statutes made by us in our Parliament lately called together at York with the Assent of the Prelates Earls Barons and all the Commons of our Kingdom there assembled for the Common Vtility of our Kingdom and Land of Ireland Commanding you that those Statutes be kept in the Rolls of the said Chancery to be enroll'd and exemplified in the Form of a Patent under our Seal which we use in Ireland and thaâ— you cause it to be sent to every one of our Places in the said Land and every County of the same And our Writs under our said Seal commanding our Officers of those Places and Sheriffs of the said Counties to cause those Statutes to be published before them and in all and singular their Articles which to every one of them appertain to be firmly observ'd Teste the King at Clarendon the 10th of Sept. in the 14th of his Reign In the same Roll there 's another Writ of the same Form dated at Nottingham 20 Nov. sending to the Chancellor of Ireland the Stature of York and another made before at Lincoln These Entries explain the general Transmissions and shew what was to be done by the Justice of Ireland in order to the publication of Laws made in Parliaments here and sent to him but yet he had no need nor authority to call a Parliament in Ireland for the publishing any Law made here unless particularly required under the Great Seal of England Yet I cannot but admire the force of Mr. M's Imagination in framing an Argument on that very Year that those Statutes were sent to Ireland That the Parliament of England did not take upon them to have any jurisdiction in Ireland because the King sent his Letters-Patents to the Lord Chief Justice of Ireland commanding that the Irish Natives might enjoy the Laws of England concerning Life and Member to which he had been moved by his Parliament at West-minster which is as much as to say they used no Jurisdiction because they did That after this time that King and his Parliament exercised Jurisdiction over Ireland appears by the Ordinance made for the State of Ireland in a Parliament held on the Octaves of St. Martin in the
quibusdam videlicet ad hostes caeteris ad loca extranea fugientibus Diversaeque partes dictar Marchiar taliter desolatae derelictae per hostes eosdem occupatae nostraque ejusdem terrae negotia incongruè inutiliter leges approbatae consuetudines minus debite observatae populo nro bonis rebus suis contra justitiam legem formam Statutor inde editor diversimode spoliat paxque nostra laesa minime custodita Ac proditores Latrones Malefactores non sicut convenit castigati Quorum malorum aliorumque occasione majora damna irreparabillia evenire quod absit timentur nisi praemissis opportunis reme diis occurrat Nos desiderantes utili regimini quieti eorund terrae populi providere quae sequuntur propterea deassensu consili nostri ordinanda duximus firmiter observanda In prim viz. volumus praecipimus quod sancta Hibernica ecclesia suas libertates liber consuetudines illaesas habeat eis liberè gaudeat utatur Item volumus praecipimus quod nostra ipsius terrae negotia ardua in consiliis per peritos consiliarios nostros ac praelatos magnates quosdam de discretioribus probatioribus hominibus de Partibus Vicinis ubi ipsa consilia teneri contigerit propter hoe evocandos In Parliamentis vero per ipsos Consiliarios nros ac Prelatos Proceres aliosque de terra nostra proutmos exigit secundum justitiam legem consuetudinē rationem tractentur deducantur fideliter timore favore odio aut pretio postpositis discutiantur etiam terminentur Because from the frequent Relations of Persons to be credited we understand that our Land of Ireland and the Irish Church and the Clergy and People subject to us thro' defect of good Government and by the negligence and carelesness of the King's Officers there both great and small has hitherto been manifoldly troubled and aggriev'd and the Marches of that land plac'd against the Enemies wasted the Marches being kill'd and despoil'd their Houses enormously burnt and the rest being forc'd to forsake their habitations some flying to the Enemies and others to Foreign Parts And divers parts of the said Marches so desolated and forsaken have been possess'd by those Enemies and the Affairs of us and that Land are incongruously and unprofitably and the Laws and approved Customs not duly observed our People being in divers manners spoil'd of their Goods and things contrary to Justice Law and the form of Statutes in those cases provided And our Peace is broken and not in the least kept And Traytors Robbers Malefactors not punish'd as they ought By occasion of which and other Evils greater irreparable Damages which God forbid are feared as likely to happen unless the Premises meet with opportune Remedies We desiring to provide for the convenient Government Quiet of that Land People therefore we by the consent of our Council have thought fit to provide these following Particulars to be ordain'd and observ'd In the first place that the Holy Irish Church have its Liberties free Customs unhurt and enjoy usethem freely Also we will and command That the Affairs and Arduous Matters of us and that Land in Councils by our Learned Counsellors and Prelates and great Men and some of the more Discreet Honest of the parts neighbouring upon the place where those Counsels shall happen to be held to be summoned for this purpose But in the Parliaments by those our Counsellours and Prelates Peers and others of our Land as custom requires be according to Justice Law Custom and Reason brought and faithfully Fear Favour Hatred or Price being disregarded discussed and also determined Then particular Provisions are made here notwithstanding the Allowance of Parliaments there Among which 1. That Men guilty of Broakage should be Punished by the Justice and Council of Ireland and fined and amoved from their Offices as should seem reasonable to the Justice and Counsel 2. That no Purveyance be taken contrary to the form of Statutes and Articles made and published for the profit of his People in Parliaments and other great Councils But if there be any force in Mr. M's way of Arguing the Statutes against Purveyors were not binding to Ireland till 18. H. 6. when 't is Enacted By a Statute made in Ireland that all the Statutes made in England against the Extortions and Oppressions of Purveyers are to be holden and kept in all points and put in Execution in this Land of Ireland 3. It provides against Robberies and for Hue-and-Crys according to the Statute of Winchester 4. That no Pardon be pass'd but in Parliaments or Councils by the assent and counsel of the said Parliaments and Counsellors And that there be no general Pardon but that the Offences be specified and expressed according to the tenor of a certain Statute by the King and his Council of England publish'd and sent to Ireland to be observed 5. The Charter taking Notice that false intelligence us'd to be sent from Ireland to England forbids it under grievous Forfeiture declaring that if for the future the Prelates the great Men Commonalty or any other should misinform the King and his Council they should be duly Punished 6. Whereas they us'd to Exhibit against one another several scandalous and vexatious Libels and Bills it provides that they being reduced to Writing be under the Seal of the Chancellor for the time being transmitted to the King's Justice Chancellor and Treasurer of Ireland who are thereby impowered to do Justice but this is by virtue of the great Seal of England 7. It Impowers the Justice calling to him the Chancellor and Treasurer with some Prelates and Earls whom he shall know to be fit or that they ought to be summoned to determine the Differences between the English of Irish Extractions and which were or should afterwards be of English 8. It requires the Justice and his Associates when there was any special Cause to certifie to the King his Council of England the Names of all Persons guilty and their Offences Since Mr. M. having as he fancied clearly made it out that for Ireland to be bound by Acts of Parliament of England is against several Charters of Liberties granted unto the Kingdom of Ireland thinks he had no need to add any other Authority than a piece of that Charter of the substance of which I have given an Account with all the distinguishing Expressions I might well enough close here and leave it to himself to consider whether when a Parliament is granted or allowed to the Land of Ireland in the fullest terms that ever it was in any King's Reign that can be shewn there was not at the same time a full exercice of the Power of the Crown and Kingdom of England in making Laws and requiring the Execution of others made in England without any
Cases Notwithstanding which 't was the opinion of the Parliament the next year that this saving was not sufficient and therefore the King at the grievous complaint of the Commons impowers the Chancellor of England to give Licences for Butter and Cheese at his discretion As to the question Whether Ireland was bound by the Stat. 2 H. 6. Mr. M. pretends to transcribe verbatim what relates to it in the Year-Book 2 R. 3. The matter as he observes was brought before all the Judges of England in the Exchequer Chamber but after ibi he omits the word dicebatur it was said not per curiam but at the most only by some Judg or Judges and might have been only by one of the Counsel for the Merchants Whoever then held that Ireland was not bound by that Act might have spoken it in relation to the Informer who could claim no share of any Forfeiture incur'd from Ireland unles the Counties of Ireland were taken to be Counties within the Realm of England But even as to this matter they were soon convinced of their mistake in thinking Ireland was not bound by that Statute Mr. M. might have learn'd from the Year-Book 1 H. 7. that this was so far from the resolution of the Court 2 R. 3. that there was no Judgment but the Bill fell upon the demise of that King which till the Statute 1 E. 6. was a discontinuance of all real personal and mix'd Actions commenced in any of his Majesty's Courts and other Courts of Record And therefore 1 H. 7. the Suit was begun again as if commenced in that King's Reign and then the question coming before all the Judges in the Exchequer Chamber Hussey the Chief-Justice delivering the Judgment of the Court declared with the assent of the rest of the Judges that Ireland was bound by that Act and I leave to Mr. M. to make it out that this was directly contrary to the Judges opinion in the 2 d of R. 3. or that they were all positive that within the Land of Ireland the Authority of the Parliament of England will not affect them If there had been any such opinion 't was not delivered as the Judgment of the Court and however the Resolution 1 H. 7. has setled the Point another way This Case is abridg'd and the Resolution receiv'd for Law by Brook a Learned Judg in the Reign of H. 8. without any query which is usual where he doubted his tamen nota that Ireland is a Kingdom by it self and has Parliaments of its own implies no more than that this tho objected 2 R. 3. was of no weight to alter that judgment and is as much as to say a Kingdom may be distinct from the Crown of a Kingdom to which it is annexed and have Parliaments at home and yet be govern'd by the Statute Laws of that other Kingdom as subordinate to it And tho the naming that subordinate Kingdom in an Act of Parliament here or the otherwise manifesting an intention to bind it is no step towards obtaining a Parliamentary consent in Ireland yet 't is towards the submission and acquiescence of the People to those Laws by which they and their Forefathers had consented to be governed I may now leave it to Mr. M. to answer his own Questions Shall Ireland receive Charters of Liberties and be no partakers of the freedoms therein contained or do these words signify in England one thing and in Ireland no such thing Nor need I much fear his terrible Expostulation Whether it be not against natural Equity and Reason that a Kingdom regulated within it self and having its own Parliaments should be bound without their consent by the Parliament of another Kingdom But I should hope that he will admit it to be against natural Reason to go away with a Conclusion without some colour of proving the Premises and therefore before he had laid it home to English hearts to consider Whether Proceedings only of thirty seven years standing shall be urged against a Nation to deprive them of the Rights and Liberties which they enjoyed for five hundred years before He would have done well to have proved that any one Century or much less number of years for these five hundred years more Ireland was ever according to the terms of his own Question regulated within it self or that 't is a Kingdom of more than one hundred and sixty years standing But it seems just thirty seven years since and never before the Rights and Liberties which they had quietly enjoyed till then were invaded and from that day to this have been constantly complained of 'T is not to be expected that a man who remembers so little of those many Acts of Parliament made in Ireland which might have moderated his assurance in this matter should keep in memory even his own concessions to the contrary as where he grants that the Parliaments of England did at least claim a superiority before the 10 th of H. 4. and 29 H. 6. But then he says We have not one single Instance of an English Act of Parliament expresly claiming this right of binding us but we have several Instances of Irish Acts of Parliament expresly denying this Subordination Answ 1. As to the express claiming an Authority to do what is done by virtue of an Authority always suppos'd that 's so far from an Argument against it that it shews 't was never call'd in question 2. No Act of Parliament even in Ireland can be shewn or pretended denying the Subordination not but that there might be some question of the general binding for want of due publication either under the Great Seal of England or of otherwise knowing the Intention of the Parliament of England This not the Authority was the Ambiguity mentioned in the Statute of Ireland 8 E. 4. in relation to a Statute 6 R. 2. which without naming Ireland alters a Law that did name it 3. If there were such Act of Parliament in Ireland 13 E. 2. as 't is supposed that a certain Judg in Ireland had seen and that we might rely upon his Judgment in the sense of it receiving some Laws before that time made in England and suspending the execution of others what I have shewn above from undoubted Records may be enough to shew that this would not in the least weaken the Right of the Parliament of England exercised before and after that time And if there were another Statute 10 H. 4. that no Laws should be of force unless they were allow'd and published by a Parliament in Ireland This tho 't is a strain farther than 't is likely any Parliament of Ireland ever yet went would not necessarily infer any more than that the Laws made in England should be thus published to the end they might be more generally known not but that the intention of the Parliament of England made known under the great Seal