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A51131 The case of Ireland's being bound by acts of Parliament in England stated by William Molyneux. Molyneux, William, 1656-1698. 1698 (1698) Wing M2402; ESTC R30063 64,004 194

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Clergy As we find at large in Chron. Gervasii Doroborn p. 1387. Edit Lond. an 1652. The Laws of King John called The Great Charter of King John granted in the 17th Year of his Reign upon the Agreement made between him and his Barons at Running-Mead between Staines and Windsor was but a Confirmation of the Laws of Edward the Confessor and Henry the First as Mat. Paris relates it Anno Regis Johannis 17. venientes ad Regem magnates petierunt quasdam Libertates Leges Regis Edwardi cum aliis libertatibus sibi Regno Angliae Ecclesiae Anglicanae concessis confirmari prout in Charta Regis Hen I. ascriptae continentur The same Historian gives us also at large both Charta Libertatum and Charta de Foresta which are not extant in the Rolls of those times nor to be found in any till the 28th of Edward I. and that but by inspeximus The Laws of Henry III. contain'd in Magna Charta and Charta de Forresta both which are called Magnae Chartae Libertatis Angliae and were establish'd about the 9th Year of Henry III. are for the most part but declaratory of the common municipal Laws of England and that too no new declaration thereof for King Iohn in the 17th year of his Reign had granted the like before which was also call'd Magna Charta And by the English Statute 25 Ed. 1. c. 1. it is Enacted That the Great Charter and the Charter of the Forrest be taken as the Common Law of England By what foregoes I conceive it is very clear That all the Charters and Grants of Liberties from Edward the Confessor's time down to the 9th of Henry the Third were but Confirmations one of another and all of them Declarations and Confirmations of the Common Law of England And by the several Establishments which we have formerly mention'd of the Laws of England to be of force in Ireland First in the 13th of Henry II. Secondly in the 12th of King Iohn Thirdly in the 12th of Henry III. All those Laws and Customs of England which by those several Charters were Declared and Confirmed to be the Laws of England were establish'd to be of force in Ireland And thus Ireland came to be govern'd by one and the same Common Law with England and those Laws continue as part of the municipal and fundamental Laws of both Kingdoms to this day It now remains that we enquire How the Statute Laws and Acts of Parliament made in England since the 9th of Henry the Third came to be of force in Ireland And whether all or any of them and which are in force here and when and how they came to be so And the first Precedent that occurs in our Books of Acts of Parliament in Ireland particularly mentioning and confirming special Acts of Parliament in England is found in a Marginal Note of Sir Richard Bolton's formerly Lord Chief Baron of the Exchequer in Ireland affixed in his Edition of the Irish Statutes to Stat. 10 Hen. 7. Cap. 22. to this purport That in 13 Edw. II. by Parliament in this Realm of Ireland the Statutes of Merton made the 20th of Hen. II. and the Statutes of Marlbridge made the 52 of Henry the Third The Statute of Westminster the First made the 3d of Edward the First The Statute of Gloucester made the 6th of Edward the First And the Statute of Westminster the Second made the 13th of Edward the First were all confirm'd in this Kingdom and all other Statutes which were of force in England were referr'd to be Examin'd in the next Parliament and so many as were then Allow'd and Publish'd to stand likewise for Laws in this Kingdom And in the 10th of Henry the Fourth it was Enacted in this Kingdom of Ireland That the Statutes made in England should not be of force in this Kingdom unless they were Allow'd and Publish'd in this Kingdom by Parliament And the like Statute was made again in the 29th of Henry the Sixth These Statutes are not to be found in the Rolls nor any Parliament Roll of that time but he Sir Richard Bolton had seen the same Exemplisy'd under the Great Seal and the Exemplification remaineth in the Treasury of the City of Waterford Thus far the Note If we consider the frequent Troubles and Distractions in Ireland we shall not wonder that these and many other Rolls and Records have been lost in this Kingdom For from the third year of Edward the Second which was Anno 1310. through the whole Reigns of Edward III. Richard II. Henry IV. and Henry V. and so to the Seventh year of Henry the Sixth Anno 1428. which is about 118 years there are not any Parliament Rolls to be found yet certain it is that divers Parliaments were held in Ireland in those times The same may be said from Henry the Second's coming into Ireland Anno 1172. to the third year of Edward the Second Anno 1310. about 138 years Perhaps it may be said That if here were such Statutes of Ireland as the said Acts of the 10th of Henry the Fourth and the 29th of Henry the Sixth As they shew that the Parliaments of Ireland did think that English Acts of Parliament could not bind Ireland yet they shew likewise that even in those days the Parliaments of England did claim this Superiority or else to what purpose were the said Acts made unless in denial of that Claim All which I hope may be readily granted without any prejudice to the Right of the Irish Parliaments There is nothing so common as to have one Man claim another Mans Right And if bare Pretence will give a Title no Man is secure And it will be yet worse if when another so Pretends and I insist on my Right my Just Claim shall be turn'd to my Prejudice and to the Disparagement of my Title We know very well that many of the Judges of our Four Courts have been from time to time sent us out of England and some of them may easily be supposed to come over hither Prepossess'd with an Opinion of our Parliaments being subordinate to that of England Or at least some of them may be Scrupulous and desirous of full Security in this Point and on their Account and for their Satisfaction such Acts as aforesaid may be devised and Enacted in Ireland But then God forbid that these Acts should afterwards be laid hold of to a clear other intent than what they were framed for and instead of Declaring and Securing our Rights should give an Handle of Contest by shewing that our Rights have been question'd of Antient Time In conclusion of all If this Superiority of the Parliament of England have been Doubted a great while ago so it has been as great a while ago Strenuously Opposed and Absolutely Denied by the Parliaments of Ireland And by the way I shall take Notice That from whencesoever this Antient Pretence of Ireland's
's Time Knights of the Shire Citizens and Burgesses were Elected in the Shires Cities and Burroughs of Ireland to serve in Parliament in England and have so served accordingly For 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 Iames Butler Lord Justice of Ireland and to R. Archbishop of Dublin his Chancellour requiring them to issue Writs under the Great Seal of Ireland to the several Counties Cities and Burroughs 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 50th of Edw. III. Membr 19. On Complaint to the King by Iohn Draper who was Chosen Burgess of Cork by Writ and served in the Parliament of England and yet was deny'd his Expences by some of the Citizens Care was taken to re-imburse him If from these last mention'd Records it be concluded that the Parliament of England may Bind Ireland it must also be Allow'd that the People of Ireland ought to have their Representatives in the Parliament of England And this I believe we should be willing enough to embrace but this is an Happiness we can hardly hope for 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 and this we may presume was the Reason that afterwards when Times were more settled we fell again into our old Track and regular course of Parliaments in our own Country and hereupon the Laws afore-noted pag. 64. were Enacted Establishing that no Law made in the Parliament of England should be of force in Ireland till it was Allow'd and Publish'd in Parliament here I have said before pag. 85. that I would only consider the more Antient Precedents that are offered to prove That Acts of England particularly Naming Ireland should bind us in this Kingdom and indeed it were sufficient to stop here for the Reason above alledged However I shall venture to come down lower and to enquire into the Modern Precedents of English Acts of Parliament alledged against us But still with this Observation That 't is these we Complain against as Innovations and therefore they ought not to be brought in Argument against us I do therefore again assert that before the Year 1641. there was no Statute made in England introductory of a New Law that interfered with the Right which the People of Ireland have to make Laws for themselves except only those which we have before mentioned and which we have discuss'd at large and submit to the Readers ●…udgment But in the Year 1641. and afterwards in Cromwel's time and since that in King Charles II. and again very lately in King William's Reign some Laws have been made in England to be of Force in Ireland But how this came to pass we shall now Enquire In the 17th Year of K. Charles I. which was in the Year 1642. there were three or four Acts of Parliament made in England for incouraging Adventurers to raise Money for the speedy suppression of the Horrid Rebellion which broke out in Ireland the 23d of October 1641 The Titles of these Acts we have in Pulton's Collection of Statutes But with this Remark That they are made of no Force by the Acts of Setlement and Explanation passed in King Charles Il's time in the Kingdom of Ireland So that in these we are so far from finding Precedents for England's Parliament binding Ireland that they plainly shew that the Parliament of Ireland may Re●… an Act passed in England in relation to the Affairs of Ireland For 't is very well known that Persons who were to have Interests and Titles in Ireland by virtue of those Acts passed in England are cut off by the Acts of Settlement and Explanation And indeed there is all the Reason in the World that it should be so and that Acts made in a Kingdom by the Legal Representatives of the People should take place of those made in another Kingdom But however it will be said that by those Acts 't is manifest that England did presume they had such a Right to pass Acts binding Ireland or else they had ne'er done it To which I answer That considering the condition Ireland was in at that time viz. under an horrid Intestine Rebellion flaming in every corner of the Kingdom 't was impossible to have a Parliament of our own yet it was absolutely necessary that something should be done towards suppressing the Violences then raging amongst us And the only means could then be practised was for the Parliament of England to interpose and do something for our Relief and Safety these were the best Assurances could be had at that juncture But when the Storm was over and the Kingdom quieted we see new Measures were taken in a Legal Parliament of our own As to what was done for Ireland in the Parliament of England in Cromwel's time besides the Confusion and Irregularity of all Proceeding in those days which hinders any of them to be brought into Precedent in these times We shall find also that then there were Representatives sent out of this Kingdom who sate in the Parliament of England which then was only the House of Commons We cannot therefore argue from hence that England may bind us for we see they allow'd us Representatives without which they rightly concluded they could not make Laws Obligatory to us I come now to King Charles the 2ds time And in it we shall find the following English Statutes made in which the Kingdom of Ireland is concerned The first is an Act against Importing Cattle from Ireland or other Parts beyond Seas It was only temporary by 18 Ch. 2. c. 2. but made perpetual 20 Ch. 2. c. 7. and 32 Ch. 2. c. 2. This Act however prejudicial to the Trade that was then carried on between Ireland and England does not properly Bind us more than it does any other Country of the World When any thing is Imported and Landed in England it becomes immediately subject to the Laws thereof so that herein we cannot be said properly to be bound Secondly The Acts against Planting Tobacco in England and Ireland 12 Ch. 2. c. 34. and 15 Ch. 2. c. 7. and 22 and 23 Ch. 2. c. 26 c. do positively Bind Ireland But there has never been an Occasion of Executing it here for I have not heard that a Rood of Tobacco was ever Planted in this Kingdom But however that takes not off the Obligation of the Law 'T is only want of our Consent that I urge against that I see no more Reason for sending a Force to Trample down an Acre of Tobacco in Ireland by these Statutes than there would be for Cutting down the Woods of Shelela were there an Act made in England against our Planting or Having Timber Thirdly The Act for