established these Acts under-written willing and commanding that from henceforth they be firmly observed within this Realm The Preamble of the Statute of Westminster made the 13th of Edward I. runs thus Whereas of late our Lord the King in the Quinzim of St. John Baptist the Sixth Year of his Reign calling together the Prelates Earls Barons and his Council at Gloucester and considering that divers of this Realm c. ordain'd certain Statutes right necessary and profitable for his Realm whereby the People of England and Ireland being Subjects unto his Power have obtain'd more speedy Justice c. Our Lord the King in his Parliament after the Feast of Easter holden the 13th Year of his Reign at Westminster caused many Oppressions of the People and Defaults of the Laws for the accomplishment of the said Statutes of Gloucester to be rehearsed and thereupon did provide certain Acts as shall appear here following Here I cannot but observe That the King and Parliament of England thought Ireland a part of this Realm and subject to their Legislative Power and that it was concerned in the Statutes of Gloucester before-mentioned though not named therein Now whose Judgement shall we take the King and Parliament who lived in those Days or yours Four hundred Years afterwards I shall only mention one more which is in the 21 Edward 1. we find there a Statute made De iis qui ponendi sunt in Assisis and at the end thereof I find this Sect. 6. Rex c. quia ad communem utilitat◠〈◊〉 â—opuli nostri Regni de communi Concilio ejusdem Regni Statuerimus c. Now all these are accounted Statutes or Acts of Parliament and so called in the Books which shows that it is not the Name but the Modus of passing them which is the essential part of a Statute Law Besides if you please to peruse your own Quotations p. 48 and 49. you there acknowledge the Parliament to be called Generale Concilium Commune Concilium Great Council or Parliament I now come to your last Argument against this Statute p. 89. That King Edward I. held no Parliament in the 17th Year of his Reign This seems very doubtful even to your self for it follows If this were a Parliament this Ordinatio pro Statu Hiberniae is the only Act thereof that is extant and may not that be Henry III. granted the Magna Charta in the Ninth Year of his Reign you allow this to be a Statute or Act of Parliament and yet we do not find any other Law past that Year and but one single Act in his Fourteenth Year One in the Ninth of Edward I. and many other Instances may be made of this nature But after all I do not see how the stress of the Matter lies on this Foundation suppose this to be no Act of Parliament as you say what then shall we want Antient Precedents which name Ireland What think you of the Statute of Merchants which I have mentioned before 13 Edw. 1. this was made before that of the Seventeenth Year which you so much contend about and Ireland is expresly named in that Statute The Sum is this you say it is not a Statute I say it is and the Books call it so I have also given my Reasons why I think it so not that I think it material to our Debate but because if Statutes should be rejected for the Reasons you reject this I fear a great part of our old Acts of Parliament and even Magna Charta it self must be expunged out of the Statute Book I come now to your third Antient Precedent the Staple Act made in the Second of Henry VI. Cap. 4. This is expired so I find only the Title in the Statute Book which is this All Merchandizes of the Staple passing out of England Wales and Ireland shall be carried to Calice as long as the Staple is at Calice The Reason you give why this Law doth not bind Ireland is grounded on the Opinion of the Judges of England whereof you give this account p. 90. That by the Year Book of the Second of Richard III. it doth appear that the Merchants of Waterford having Ship'd off some Wool and consign'd it to Sluce in Flanders the Ship by stress of Weather put into Calice and Sir Thomas Thwaits Treasurer there seized the said Wool as forfeited whereupon a Suit was commenced between the said Merchants and him which was brought before all the Judges of England into the Exchequer-Chamber where the Questions were two one of which was Whither this Staple Act binds Ireland I have Abbreviated what you Write but I think I have done it fairly to which the Judges gave this Answer p. 91. Quod terra Hibernia inter se habent Parliament ' omni modo Cur prout in Angl. per Idem Parliament ' faciunt Leges mutant Leges non obligantur per Statuta in Anglia quia non hic habent Milites Parliamenti c. But in p. 92. you confess from the Year Books of 1 Henry 7. That when the aforesaid Case came a second time under the Consideration of the Judges in the Exchequer-Chamber we find it Reported thus Hussy the Chief Justice said That the Statutes made in England shall Bind those of Ireland which was not much gainsaid by the other Judges notwithstanding that some of them were of a contrary Opinion the last Term in his Absence What a strange Argument is this The Judges say you gave their Opinion who were those Judges You name only Hussy and he was against it But you say all the Judges of England in the former Term it could not be all because Hussy was not there and afterwards he gave his Opinion quite contrary And as you confess p. 92. all the Judges submitted to it so that here is the Judges Opinion at one time against their Opinion at another and will you bring this to overthrow the Authority of the Legislative Power of England But suppose Hussy and the rest of the Judges had agreed with the first Opinion what would you draw from this Have the Judges Power to question the Parliament in the Exercise of their Legislative Authority I know they are often advised with in the making of an Act but when it is once past I presume their business is to give their Judgments according to it or to Explain it where the Sence is doubtful but not to go against the express Words of an Act much less to question the Parliaments Power to make it Your second Argument against this Statute's binding Ireland is a Note in a Book made by Brook in Abridging this Case That Ireland is a Kingdom of it self and hath Parliaments of its own p. 92. Certainly you have very light Thoughts of Parliaments if you think that Notes in Books should abridge their Power The third is a Comment of your own on the whole p. 93. wherein you draw a Comparison of Ireland with Scotland and conclude That
Grace The Fifth settles The Marshal's Fee in Ireland Perhaps you will say these Officers take more than their Fees therefore the Statute is no Act of Parliament Very probable they do that is a general Distemper where Offices have Fees annexed to them and yet it may be an Act of Parliament still The Sixth Chapter its Title is In what Cases the Justices of Ireland may grant Pardon of Felony and where not The Title of the Seventh Chapter is By what Seal Writs in Ireland shall be Sealed The Eighth and last is Adjournment of Assizes in Ireland Are these Parts of the Statute observed in Ireland or no I ask you this because if any one part is received the whole is received Obedience given to any part of this Law acknowledges the Jurisdiction of the Law-makers and you insist only on the First Chapter as if the rest were no part of the Law That this Ordinatio pro Statu Hiberniae is really in it self no Act of Parliament but meerly an Ordinance of the King and his Privy-Council in England I have already given you my Definition what an Act of Parliament is and if this be no more than an Order of the King and his Privy-Council I must be of your Mind Let us therefore enquire farther into this matter you say it appears to be no otherwise as well from the Preamble of the said Ordinance as from the Observation likewise I assure you if this Proof hath not more weight in it than the other I shall think it an Act of Parliament still Let us therefore see what the Preamble is which I find to be this Edward by the Grace of God King of England Lord of Ireland Duke of Aquitain to all those who shall see or hear these Letters doth send Salutation Know you That for the Amendment of the Government of our Realm of Ireland and for the Peace and Tranquillity of our People of the same Land at Nottingham the Octaves of St. Martin in the Seventeenth Year of our Reign by the assent of our Council there being the points hereafter mentioned be made and agreed upon to the intent that they may be firmly observed in the same Realm Where please to note that the Words are not by assent of our Privy-Council but of our Council by which name the Parliament of England is often called It would be endless to give and account of the different Stiles under which Acts of Parliament past in those Days sometimes in the Name of the King only sometimes of the King and Great Men sometimes of the King and his Council sometimes of the King and his Common Council and sometimes of neither as he who will be at the trouble to inspect our Statute Books may see I will give some Instances instead of many The great Charters are only in the King's Name Henry by the Grace of God King of England c. and so Edward by the Grace of God King of England c. The Statute in the Twentieth of Henry III. made at Merton hath this Preamble It was provided in the Court of our Sovereign Lord the King holden at Merton on Wednesday the morrow after the Feast of St. Vincent the Twentieth Year of the Reign of King Henry the Son of King John before William Archbishop of Canterbury and other his Bishops and Suffragans and before the greater part of the Earls and Barons of England there being assembled for the Coronation of the said King and Helianor the Queen about which they were all called where it was treated for the Commonwealth of the Realm upon the Articles under-written Thus it was provided and granted as well of the aforesaid Archbishop Bishops Earls and Barons as of the King himself and others By which it appears that in those Days when the Great Men who were the Barons or Freeholders of England were called together they made Laws and did not so much regard the Stile as that they were made by a general Consent The Statute 51 Henry 3. Sect. 1. begins thus The King to whom all these Presents shall come greeting We have seen certain Ordinances c. Stat. 5. of the same Year begins thus The King commandeth that all manner of Bailiffs Sheriffs c. Stat. 6. of the same Year begins thus If a Baker or a Brewer be Convict because he hath not c. The Preamble of the Statutes 52 Henry 3. made at Marlbridge 18. November 1267. runs thus In the Year of Grace One thousand two hundred sixty seven the Fifty-second Year of the Reign of King Henry Son of King John in the Utas of St. Martin the said King providing for the better Estate of this Realm of England and for the more speedy Ministration of Justice as belongeth to the Office of a King the more discreet Men of the Realm being called together as well of the Higher as of the Lower Estate It was provided agreed and ordained That whereas the Realm of England of late had been disquieted with manifold Troubles and Dissentions for Reformation whereof Statutes and Laws be right necessary whereby the Peace and Tranquility of the People must be observed wherein the King intending to devise convenient Remedy hath made these Acts Ordinances and Statutes underwritten which he willeth for ever to be observed firmly and inviolably of all his Subjects as well High as Low The Preamble to the Statutes made the Third of Edward I. runs thus These be the Acts of King Edward Son to King Henry made at Westminster at his Parliament General after his Coronation on the Monday of Easter Utas the Third Year of his Reign by his Council and by the Assent of Archbishops Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm being thither Summon'd because our Lord the King had great Zeal and Desire to redress the State of the Realm in such things as required Amendment for the Common Profit of Holy Church and of the Realm and because the State of Holy Church hath been evilly kept c. the King hath Ordained and Established these Acts under-written which he intendeth to be necessary and profitable to the whole Realm The Preamble to the Statute made the Fourth of Edward the First call'd the Statute of Bigamy runs thus In the Presence of certain Reverend Fathers Bishops of England and others of the King's Council the Constitutions under-written were recited and after heard and published before the King and his Council Forasmuch as all the King's Council as well Justices as others did agree that they should be put in Writing for a perpetual Memory and that they should be stedfastly observed The Preamble to the Statutes made at Gloucester 6 Edw. 1. runs thus For the great Mischiefs Damages and Disherisons that the People of the Realm of England have heretofore suffer'd through default of the Law that fail'd in divers Cases within the same Realm Our Sovereign Lord the King for the amendment of the Land c. hath provided and
all was well in Ireland p. 44. you say That on the Death of King Richard I. King John in the Twelfth Year of his Reign went again into Ireland Anno 1210 and then it was that Mat. Paris saith the 20 Reguli came to him to Dublin and did him Homage p. 45. you say That Henry III. came to the Crown Anno 1216 and the same Year sent over the Charter from Bristol the 12th of November And in p. 46. you say He sent them another in the February following from Gloucester p. 52. you say That Henry III. in the Twelfth Year of his Reign sent over a Writ to Hugo de Burgh to Summon the States of Ireland In all this time we hear nothing of Wars Tumults Heats or Rebellions but quite contrary For p. 49 and 50. you set forth a Writ which you have from Mr. Petit or rather a Letter written by King Henry III's Queen Anno 38. of his Reign wherein she desires his Subjects of Ireland to assist the King with Men and Money to defend his Land of Vascony which was then Invaded by the King of Castile Thus far I quote you from your own Book and now you tell us p. 96. That the People of Ireland could not Assemble with conveniency to make Laws at Home by reason of Heats of Rebellions or Confusion of Times and that this caused them to come to England to do it as appears by the Writ you mention p. 95. which was in the Ninth Year of Edward I. who succeeded his Father Henry III. Really Sir you have given me so much trouble to run over your Book again to shew how inconsistent you are in your Discourse about this Matter that I could almost be angry with you But I am willing to take this pains not to convince you that you are in an Error I imagine that will be labour lost a Gentleman of your Parts must needs know it already but to make it plain lest any Body else should be drawn aside by what you write Well then on the Credit of this Writ I will grant you that Ireland came to England for Laws in the Ninth of Edward I. And then I hope you will not oppose this Ancient Precedent because it is of your own producing But to get clear of this you tell us p. 96. That these Laws were made by your own Representatives And to prove that this was so in the Reign of Edward III. for you say its plain 't was so in Edward I.'s time you tell us There were Knights Citizens and Burgesses elected in the Shires Cities and Buroughs of Ireland to serve in Parliament in England and so served accordingly And to prove this you tell us p. 97. That amongst the Records of the Tower of London Rot. Claus 50 Edw. 3. Parl. 2. Membr 23. We find a Writ from the King at Westminster directed to James Butler Lord Justice of Ireland and to R. Archbishop of Dublin his Chancellor requiring them to issue Writs under the Great Seal of Ireland to the several Counties Cities and Boroughs for satisfying the Expences of the Men of that Land who last came over to serve in Parliament in England And in another Roll the 50 Edw. 3. Memb. 19. on complaint to the King by John Draper who was chosen Burgess of Cork by Writ and served in the Parliament of England and yet was denied his Expences by some of the Citizens care was taken to reimburse him Pray what use will you make of these Records to prove that the Kingdom of Ireland is not subject to the Legislative Power of the Parliament of England I think you have brought the Matter home and have mistaken the side for instead of proving that it is not you have proved positively that it is and particularly that from the Ninth of Edward the First to the Fiftieth of Edward the Third the Representatives of Ireland came over to sit in the Parliament of England and how long before or how long after they did so I cannot tell The Writ you mention of Edward I. hath reference to Statutes made before that time at Lincoln and York which I judge must be in the Days of Henry II. Richard I. or King John because I do not find that any Parliament was held in either of these Places from the beginning of our Statute-Books and then where is your separate Kingdom of Ireland under King John And why have you so often asserted That there was never any Law made in England to bind Ireland till the Modern Instances you mention Pray what means all the Clamour you have made against our late Kings and the Parliaments of England for infringing your Liberties and breaking through the very design of setling Communities and putting you in a worse Condition than you were in the state of Nature You are very much beholding to the ingenious Mr. Lock for the fineness of your Argument about the State of Conquest c. in the former part of your Book which I do not at all blame you for because I think no Man can handle a Subject smoothly whereon he hath treated that doth not follow his Copy but I blame you for not applying those excellent Arguments more fitly But to return to the Matter P. 58. You confessed there was no Parliament in Ireland before King Henry III.'s time and you have not any where shewn that it was settled there during his Reign and now you acknowledge that Ireland sent Representatives to sit in the Parliament of England in the Reigns of Edward I. Edw. II. and Edward III. his Successors where Laws were made to bind it Pray then why do you exclaim against their putting this Power in Execution still To this you say p. 97. It must be allowed that the People of Ireland ought to have their Representatives in the Parliament of England And this you believe they would be willing enough to embrace but this is a Happiness you cannot hope for I have before told you that you are represented there already but you are willing some Representatives should come over from Ireland to sit there you say they did so once and you are willing they should do it again pray why did you not continue that great Happiness you now so much prize To this you Answer p. 98. This sending of Representatives out of Ireland to the Parliament in England on some occasions was found in process of time to be very troublesome and inconvenient I cannot but observe what a Hodge-podge you would make by the wrong Inferences you endeavour to draw from every thing only because you would cloud the Truth you allow you once sent Representatives to the Parliament here but you would now have this to be only upon some occasions I hope it was not on occasion of Wars and Tumults during the prosperous Reigns of Edw. I. and Edw. III. if it was you do not tell us what Wars and Tumults they were 'T is much that Edward III. who extended his Arms to
with the King into Ireland do become there the Supream Court of Judicature How will your Judges in Ireland take this at your Hands Whether it be so or no I will not undertake to confute you But as to your former Arguments That Writs of Error lie before the King not the Court and Application is made to the King of Ireland who is in England they are pretty ludicrous Distinctions and if allowed I cannot see why the Judges of England may not extend their Jurisdictions to Scotland on the same Arguments I have so much Honour for them that as I was willing to grant it them in Ireland as full as you pleased so I shall be loth to argue against extending their Power to Scotland also if they can find any Precedents to warrant it If this be Law I think they have been asleep in the Four last Reigns 't is true they were Reigns of Trouble but now we have Peace they will have time to look into that Matter on this Hint you have given them I perceive you are fully perswaded of it if they are as easily perswaded too the Business is done But I believe the Judges of the King's-Bench in England will not call Causes before them out of Scotland because the King of England is King of Scotland on your Opinion that they may do it be you as fully perswaded of this Matter as you will But whither are we going from our Argument I undertook to prove That the Parliament of England can rightfully make Laws to bind Ireland and you have put me upon proving That the King's-Bench in England hath a Jurisdiction over the King's-Bench in Ireland I confess you have made this Task easie to me for besides the weakness of your Arguments to the contrary you grant it p. 139. but you do it with great Caution and desire that no Advantage may be taken thereby to prove the Parliament of Ireland Subordinate to the Parliament of England this I think you needed not have feared for I know no Body would ever have raised it as an Argument against you or will use it now you have brought it The Parliament of England's Power over Ireland was long before the Dates of the Writs of Error you mention which were all in the Days of King Charles I. 'T is true you imply there were some much earlier but all we have said of this Matter seems to me but Labour lost and nothing to the Argument we are upon nor can I conclude with you p. 140. from the Prior of Lanthony's Case that the Judgement of the Parliament of Ireland was never questioned in the Parliament of England that very Case seems to me to show the contrary which I leave to the Reader to judge As for the English Act of Parliament p. 140 141. made the 25th of Henry VIII I cannot see what use you make of that neither against the Jurisdiction of the Parliament that made it You say It was received in Ireland and confirmed in Parliament there by the Act of Faculties made the 28th Year of the same King's Reign It may be so and what then All I can say to it is that we have trifled a long time on things spoken to before therefore let us proceed to something new if you have it to offer I very well know Sir that it becomes me to treat you with Respect both as you are a Gentleman and a Stranger to me but I cannot but admire at the Pains you take of quoting so many Cases and then applying them so ill I confess I can hardly pardon you this Fault Your Book seems to be written by different Hands I am afraid this latter part is added without your consent by such as design'd Mischief to you or the Matter you are handling P. 142. You come to your Sixth Article proposed viz. The Reasons and Arguments that may be farther offer'd on one Side and t'other in this Debate The First is Conquest the Second Purchase by sundry Expences to reduce Rebellions and carry on Wars in Ireland both formerly and of late the Third is Strength and Power which you say England makes use of to make Laws for securing its Trade from Ireland and maintaining those Laws when made these you descant on p. 142 143 144 145 146 147. but I am tired and shall not give my self the Trouble to consider what Reasons may arise from these or any of them for the Parliament of England's putting this their Power in Execution I never proposed either of them as a reason from whence it sprung which is the Argument we are upon The last thing you mention is Ireland's being look'd on as a Colony from England p. 148 149. and therefore subject to its Laws This you think a very extravagant Opinion I am sure none of the Arguments you there bring against it make it appear to be so however I shall not wander again upon this Subject having as I hope sufficiently proved That the Parliament of England hath made Laws to bind Ireland ever since it hath been in our Possession You say your self p. 39. That the Parliament at Oxford in King Henry II's days made the King's Son John King thereof which shews they had then a power over it and it doth not appear by their Actions since that they ever gave it up and can the Authority of the Parliament of England over Ireland be better set forth than by saying they settled the Sovereignty over it in whom they pleased 'T is true you do not prove it nor is it at all probable yet the Argument is good against your self to shew they had then a power to do it As for the remaining part of your Book from p. 149. to the end where you endeavour to set forth Reasons drawn from the Justness of your Cause why the Parliament of England should not put this Power in Execution which they have had and exercised from the beginning over Ireland it doth not become me to give Answer to it The great Wisdom of the Nation knows when 't is convenient for them to do it and when not they have not made me Arbitrator in that Affair but are themselves the proper Judges However I hope I may adventure to say I have proved in the foregoing Discourse That it is not against the Rights of Mankind nor against the Common Law of England nor against the Statute-Law of England nor against the several Concessions made to Ireland nor is it inconsistent with the Regalities of a Kingdom depending on England as Ireland doth nor against the King's Prerogative nor the Practice of former Ages nor the Resolution of the Judges and that it doth not destroy Property nor create Confusion These are the Heads you again repeat but have been answer'd already Therefore on what hath been said I cannot conclude with you That the exercise of this Legislative Power over Ireland which you call Assumed in your last Pages 171 172 173 174. will be any ways inconvenient for the Kingdom of England but seeing you are pleased to submit this to the Wise Assembly of English Senators I humbly leave it to them also whether on the Reasons you have offered they will desist for the future But I cannot admit of your Comparison with the breaking of the Edict of Nants by the French King it does not appear to me you were ever exempted from their Jurisdiction nor can I believe the Gentlemen of Ireland will be drawn aside by your Clamours to call this an Invasion on their Rights and Liberties or be perswaded thereby to shake off their Allegiance to the King of England which you groundlesly suggest No doubt the Parliament of Ireland is a Prudent Assembly and know well enough how to make Laws for the Interest of that Kingdom which therefore you think cannot be in the least prejudicial to this Yet you see Poyning's Act 10 Hen. 7. which you mention p. 173. is still kept on foot as a light to their feet perhaps if this good Guide was laid aside they might be apt to stray which I do not find the Crown of England willing to give up much less do I believe that the Parliament of England will surrender their Antient undoubted Power to make Laws to bind that Kingdom However let not my Opinion discourage your humble Application to them which will be a better way than disputing their Power And thus I have made an Essav at answering your Book which boldly strikes at the Power of our English Parliaments a Constitution I much honour and though they do not stand in need of such weak Pens as mine yet I have made use of my Sling and Stone till a better Champion undertakes their Cause I have only engaged you with your own Weapons and thrown back those Darts on your self which you cast at them I confess my own weakness to handle a Controversie of this nature which I had never undertaken had I not thought the weakness of your Arguments had given me an Incouragement It is reported of the Son of Craesus though Dumb before yet when he saw his Father like to be slain his dutiful Affection being stronger then the Cords that bound his Tongue cryed out Noli occidere Patrem You complain often in this Discourse of the breaking in on the Liberties of Ireland for which I see no reason and I hope it will not appear so to indifferent Men when the thing is rightly considered I have given you my Thoughts on this Subject but whether they will make a better Impression on you then your Arguments have made on me I cannot foresee therefore shall leave what hath been said on both sides to be scan'd by the Judicious Reader Bristol June 16. 1698. John Cary.