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A51131
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The case of Ireland's being bound by acts of Parliament in England stated by William Molyneux.
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Molyneux, William, 1656-1698.
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1698
(1698)
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Wing M2402; ESTC R30063
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64,004
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194
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Bench of Ireland to the Kings Bench of England But to this I answer 1. That 't is the Opinion of several Learned in the Laws of Ireland That this Removal of a Judgment from the Kings Bench of Ireland by Writ of Error into the Kings Bench of England is founded on an Act of Parliament in Ireland which is lost amongst a great number of other Acts which we want for the space of 130 years at one time and of 120 at another time as we have noted before pag. 65. But it being only a General Tradition that there was such an Act of our Parliament we only offer it as a Surmise the Statute it self does not appear 2. Where a Judgment in Ireland is Removed to be Revers'd in England the Judges in England ought and always do judge 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 if in any thing the two Laws differ the Law of Ireland must prevail and guide their Judgment And therefore in the Case of one Kelly Removed to the Kings Bench in England in the beginning of King Charles the First one Error was assigned that the Praecipe was of Woods and Underwoods which is a manifest Error if brought in England but the Judges finding the Use to be Otherwise in Ireland judged it No Error So in Crook Charles fol. 511. Mulcarry vers Eyres Error was assigned for that the Declaration was of one hundred Acres of Bogg which is a word not known in England but 't was said It was well enough understood in Ireland and so adjudged No Error From whence I conceive 't is manifest that the Jurisdiction of the Kings Bench in England over a Judgment in the Kings Bench of Ireland does not proceed from any Subordination of one Kingdom to the other but from some other Reason which we shall endeavour to make out 3. We have before observed That in the Reign of K. Henry the Third Gerald Fitz-Maurice Lord Justice of Ireland sent four Knights to know what was held for Law in England in the Case of Coparceners The Occasion of which Message as before we have noted out of the Kings Rescript was because the Kings Justice of Ireland was ignorant what the Law was We may reasonably imagine that there were many Messages of this kind for in the Infancy of the English Government it may well be supposed that the Judges in Ireland were not so deeply versed in the Laws of England This occasioned Messages to England Before Judgment given in Ireland to be inform'd of the Law And After Decrees made Persons who thought themselves aggrieved by Erroneous Judgments apply'd themselves to the King in England for Redress Thus it must be that Writs of Error unless they had their Sanction in Parliament became in use Complaints to the King by those that thought themselves injur'd increased and at last grew into Custom and obtain'd the Force of Law Perhaps it may be Objected That if the Judges of the Kings Bench in England ought to Regulate their Judgment by the Customs of Ireland and not of England it will follow that this Original which we assign of Writs of Error to England is not right I Answer That this may be the Primary Original and yet consist well enough with what we have before laid down For tho' the Common Law of England was to be the Common Law of Ireland and Ireland at the beginning of its English Government might frequently send into England to be inform'd about it yet this does not hinder but Ireland in a long Process of Time may have some smaller Customs and Laws of its own gradually but insensibly crept into Practice that may in some measure differ from the Customs and Practice of England and where there is any such the Judges of England must regulate their Sentence accordingly tho' the first Rise of Writs of Error to England may be as we have here suggested In like manner where the Statute-Law of Ireland differs from that of England the Judges of England will regulate their Judgments by the Statute-law of Ireland This is the constant Practice and notoriously known in Westminster-Hall From which it appears that removing a Judgment from the Kings Bench of Ireland to the Kings Bench of England is but an Appeal to the King in his Bench of England for his Sense Judgement or Exposition of the Laws of Ireland But of this more hereafter 4. When a Writ of Error is Returned into the Kings Bench of England Suit is made to the King only The Matter lies altogether before Him and the Party complaining applies to No Part of the Political Government of England for Redress but to the King of Ireland only who is in England That the King only is sued to our Law-Books make Plain This Court is call'd Curia Domini Regis and Aula Regia because the King used to sit there in Person as Lambard tells us And every Cause brought there is said to be coram Domino Rege even at this very day Cooke 4 Inst. p. 72. Therefore if a Writ be returnable coram nobis ubicunque fuerimus 't is to be Return'd to the Kings Bench. But if it be Returnable coram Iusticiariis nostris apud Westm. 't is to be Return'd into the Common Pleas. This Court as Glavnil and other Antients tells us used to Travel with the King where-ever he went And Fleta in describing this Court says Habet Rex Curiam suam Iusticiarios suos coram quibus non alibi nisi coram semet ipso c. falsa Iudicia Errores revertuntur Corriguntur The King then as Britton says having Supream Jurisdiction in his Realm to judge in all Causes whatsoever therefore it is that Erroneous Iudgments were brought to him out of Ireland But this does not argue that Ireland is therefore Subordinate to England for the People of Ireland are the Subjects of the King to whom they Appeal And 't is not from the Country where the Court is held but from the Presence and Authority of the King to whom the People of Ireland have as good a Title as the People of England that the Praeeminence of the Iurisdiction does flow And I question not but in former times when these Courts were first Erected and when the King Exerted a greater Power in Judicature than he does now and he used to sit in his own Court that if he had Travell'd into Ireland and the Court had follow'd him thither Erroncous Judgments might have been removed from England before him into his Court in Ireland for so certainly it must be since the Court Travell'd with the King From hence it appears that all the Jurisdiction that the Kings Bench in England has over the Kings Bench in Ireland arises only from the Kings Presence in the former And the same may be said of the Chancery in England if it will assume
THE CASE OF IRELAND's Being BOUND by Acts of Parliament IN ENGLAND Stated BY William Molyneux of Dublin Esq Dublin Printed by Ioseph Ray and are to be Sold at his Shop in Skinner-Row M DC XC VIII TO THE KING SIR THE Expedition Your MAJESTY Undertook into England to Rescue these Nations from Arbitrary Power and those Unjust Invasions that were made on our Religion Laws Rights and Liberties was an Action in it Self so Great and of such Immense Benefit to our Distressed Countries that 't is Impossible to give it a Representation so Glorious as it Deserves Of all Your Majesty's Kingdoms none was more Sensible of the Happy Effects thereof than Your Kingdom of Ireland which from the Depth of Misery and Despair is Raised by your Majesty to a Prosperous and Flourishing Condition And we presume most humbly to Implore the Continuance of Your Majesty's Graces to us by Protecting and Defending those Rights and Liberties which we have Enjoy'd under the Crown of England for above Five Hundred Years and which some of late do Endeavour to Violate Your most Excellent Majesty is the Common Indulgent Father of all your Countries and have an Equal Regard to the Birth-Rights of all Your Children and will not permit the Eldest because the Strongest to Encroach on the Possessions of the Younger Especially considering with what Duty Loyalty and Filial Obedience we have ever behav'd our selves to Your Majesty Insomuch that I take leave to Assert That Your Majesty has not in all Your Dominions a People more United and Steady to Your Interests than the Protestants of Ireland Which has manifestly Appear'd in all our Actions and Parliamentary Proceedings since Your Majesty's Happy Accession to the Throne To Relieve the Distress'd has ever been the Peculiar Character of Your Majesty's Glorious Family The United Provinces have found this in Your Famous Ancestors And all Europe has been Sensible of this in Your Royal Person To this End more particularly You came into these Kingdoms as Your Majesty has been pleas'd to Declare And as You have Establish'd the Rights and Liberties of England on a Foundation that we hope can never be shaken So we doubt not but Your Sacred Majesty will have a Tender Care of Your Poor Subjects of Ireland who are Equally Your Subjects as the rest of Your People Pardon I most Humbly beseech Your Majesty my Presumption in Appealing to You on this Occasion Nothing but the Dignity and Weight of the Subject can Excuse my Boldness herein But if That be Consider'd it Deserves the Regard of the Greatest Prince 'T is no less than the Rights and Liberties of one of His Kingdoms on which their Religion their Property their All Depends and which they have Enjoyed for Five Hundred Years past This I think I have clearly shewn in the following Leaves I am sure if my Management thereof were suitable to the Iustice of our Cause our Friends of England can no longer Doubt it At Your Majesty's Feet therefore I throw it and with it the Unworthy Author thereof May it please Your Majesty Your Majesty's Most Dutiful Loyal and Obedient Subject and Servant William Molyneux PREFACE TO THE READER I Have nothing to Offer in this Preface more than to let the Reader know how Unconcern'd I am in any of those Particular Inducements which might seem at this Iuncture to have Occasion'd the following Discourse I have not any Concern in Wooll or the Wooll-Trade I am no wise Interested in the Forfeitures or Grants I am not at all Solicitous whether the Bishop or Society of Derry Recover the Land they Contest about So that I think I am as Free from any Personal Prejudice in this Cause as 't is possible to Expect any Man should be that has an Estate and Property in this Kingdom and who is a Member of Parliament there in I hope therefore 't is a Publick Principle that has mov'd me to this Undertaking I am sure I am not Conscious to my Self of any other Intention I have heard it has been said That perhaps I might run some Hazard in Attempting this Argument But I am not at all Apprehensive of any such Danger We are in a Miserable Condition indeed if we may not be Allow'd to Complain when we think we are Hurt and to give our Reasons with all Modesty and Submission But were it otherwise it would not in the least Affect or Discourage me in an Attempt where I think my Cause Good and my Country Concern'd and where I am fully perswaded the True Interest of England is as Deeply Engaged as the Protestant Interest of Ireland The Great and Just Council of England freely Allowâ—… all Addresses of this sort Tâ—… Receive and Hear Grievances is a great part of their Business and to Redress them is their Chief Glory But this is no to be done till they are laid before them and fairly Stated for their Consideration This I have endeavour'd 〈◊〉 the following Paper What Sâ—…cess it may have I am not veâ—… solicitous about I have Done what I thought was my Duty and Commit the Event to GOD Almighty and the Wise Council of England Dublin Febr. 8. 7 1698. W. MOLYNEUX The CASE OF IRELAND's Being Bound by Acts of Parliament IN ENGLAND STATED I HAVE ever been se fully perswaded of the strict Justice of the Parliament of England that I could never think that any of Their Proceedings which might seem to have the least Tendency to Hardship on their Neighbours could arise from any thing but want of Due Information and a right State of the Business under their Consideration The want of which in Matters wherein another People are chiefly Concern'd is no Defect in the Parliament of England but is highly Blameable in the Persons whose Affair is Transacting and who permit that Illustrious Body of Senators to be Mis-inform'd without giving them that Light that might Rectifie them I could never Imagine that those Great Assertors of their Own Liberties and Rights could ever think of making the least Breach in the Rights and Liberties of their Neighbours unless they thought that they had Right so to do and this they might well surmise if their Neighbours quietly see their Inclosures Invaded without Expostulating the Matter at least and shewing Reasons why they may think that Hardships are put upon them therein The Consideration hereof has Excited me to undertake this Disquisition which I do with all Imaginable Diffidence of my own Performance and with the most profound Respect and Deference to that August Senate The present Juncture of Affairs when the Business of Ireland is under the Consideration of both Houses of the English Parliament seems to require this from some Person and seeing all Others silent I venture to Expose my own Weakness rather than be wanting at this time to my Country I might say indeed to Mankind for 't is the Cause of the whole Race of Adam that I Argue Liberty seems the Inherent Right of all