original Contract for he saith that the King caused them to receive and swear to be governed by the Laws of England But in your next Precedent you seem to qualify the Severity of that King's Orders by what Sir Edward Cook says viz. That he settled the Laws of England in Ireland by the voluntary Acceptance and Allowance of the Nobility and Clergy pag. 29. And he did likewise allow them the Freedom of holding Parliaments in Ireland as a separate and distinct Kingdom from England Please to note that Sir Edward Cook wrote about Five Hundred Years after King Henry II. went into Ireland and about Four Hundred and Fifty after Matt. Paris wrote and you would now bring his Opinion against the constant Practice of the Parliaments of England for Five Hundred Years Besides you say p. 80 and 116. That Sir Edward Cooke was of Opinion that Ireland was to be governed by the Statute Laws made in England where it was specially named therein and in the last of these Pages you exclaim against him for this his Opinion I shall not examine your Quotations whether they agree with the Originals or no my Profession being not the Law I am not furnish'd with those Books nor do I think it much to the purpose what Sir Edward Cook saith in this matter yet I must take notice that you pen the Words Holding of Parliaments in Ireland in a different Character from the following Sentence As a separate and distinct Kingdom from England which gives me reason to suppose the last was vour to find out the Original did the Decision of this Controversy depend upon Sir Edward Cook 's Opinion Sir Edward Cook in this Case should have given a Transcript of that Grant and you should have transcribed it as you do afterwards the Modus how to hold their Parliaments pag. 29. and yet then there would have arose this Question Whether the Kings of England can legally exempt their English and British Subjects for so you call the People of Ireland pag. 20. from their Obedience to the Legislative Power of this Kingdom by any Charters or Grants whatsoever I am sure I never heard of any such Precedent but on the contrary it is charged as a Crime on the late King James in an Act made Primo G. M. Cap. 2. That he assumed and exercised a Power of dispencing with and suspending of Laws and the Execution of Laws without Consent of Parliament But here I see you will raise this Objection against my manner of expressing my self and say That when Grants are made by a King to any Country that doth submit it self to his Authority all Persons who shall afterwards settle themselves therein though before subject to other Laws are now â—o try therefore the People of England when they setled Ireland were to be governed by the Laws granted to Ireland to this I answer That the Constitution of the Government to which this Submission is made ought specially to be considered and then there will arise this 2d Question Whether a Submission made to the K. of England doth not include a Submission to the Legislative Authority of England I am apt to think it does and I believe it will appear by what follows in this Discourse that the Parliaments of England have ever been of the same Opinion But be this how it will Ireland you allow submitted it self on the Terms of being governed by the Laws of England so this Objection seems rather to be formal than material as to the Subject we are upon This Modus you say pag. 30. For the most part agrees with the Modus tenendi Parl ' in England which is a loose Argument for you know that one Word in a Grant may alter the whole Sence and we both agree that the Parliament of Ireland may make Laws but the Question is whether Ireland is not bound by the Statute Laws of England as all our Plantations are Yet after all you confess pag. 30. That this very Modus though strenuously asserted by Sir Edward Cook is disputed by Mr. Selden and Mr. Pryn two learned Antiquaries will you then bring it as an Argument against the constant Practice of the Parliament of England for Five Hundred Years past But grant it had not been disputed at all I do not see what it will make for your purpose One Reason you say why Mr. Pryn doubts this Modus to be sent over by King Henry the Second is because there were no Sheriffs established in Ireland in Henry the Second's Time pag. 31. Yet the Word Vicecomes is in it all you answer is pag. 32. That perhaps the King intended to constitute Sheriffs and yet the first you find establish'd there were in the Days of King John which was about Fifty Years after and you say pag. 30. That where this Form was altered from the Modus tenendi Parl ' in England 't is only to fit it the better for the Kingdom of Ireland if so 't is strange the Word Vice-comes had not been left out seeing there was then no such Officer in Ireland But pag. 36. you are pleased to allow that there is reason to doubt the certainty of this Record unless we will depend on the Credit of the Bishop of Meath therefore you return to your former Argument viz. that there were Parliaments early in the Kingdom of Ireland which may be probable but whether the Parliament of England then lost their Power there is the thing I dispute and you do not prove You say pag. 36 37. That Henry the Second held a General Council of the Clergy at Cashall wherein he rectifyed many Abuses in the Church and established sundry Ecclesiastical Laws agreeable to those in the Church of England this in England we call a Convocation not a Parliament You say pag. 37. Pari desiderio Regis Imperio se subjiciunt omnibus igitur hoc modo consummatis in Consilio habito apud Lismore Leges Anglicae ab omnibus sunt gratantur receptae juratoriâ cautione praestitâ confirmatae saith Matth. Paris from hence you infer pag. 38. That they should enjoy the like Liberties and Immunities and be governed by the same mild Laws both Civil and Ecclesiastical as the People of England and I see no Reason to the contrary all we differ in is whether they were thereby discharged from being subject to the Statute Laws made in England this seems contrary to the Judgment of the Parliament in Henry the Third's Days to whom Matth. Paris was Historiographer else certainly they would not have made Laws to bind Ireland as I shall by and by show they did You proceed pag. 38. thus From all which it is manifest that there were no Laws imposed upon the People of Ireland by any Authority of the Parliament of England nor any Laws introduced into that Kingdom by King Henry the Second but by the Consent and Allowance of the People of Ireland and the Reason you give for it is this For both the
prove that either they did not and then to show when they first Usurp'd it or that it was an Usurpation from the Beginning therefore your first second and third general Heads seeming to be of no great Moment in this Dispute I shall say the less to them your fourth fifth and sixth seem more to relate to the matter before us Under the first of these speaking of Henry II. you say Page 11 and 12. That all the Archbishops Bishops and Abbots of Ireland came to the King of England and received him for King and Lord of Ireland swearing Fealty to him and his Heirs for ever the Kings also and Princes of Ireland did in like manner receive Henry King of England for Lord of Ireland and became his Men and did him Homage and swore Fealty to him and his Heirs against all Men and he received Letters from them with their Seals Pendent in manner of Charters confirming the Kingdom of Ireland to him and his Heirs and testifying That they in Ireland had ordained him and his Heirs to be their King and Lord of Ireland for ever This was Anno 1173. Now either this Resignation they made to him was Absolute or Limited if the latter I conceive it must be exprest in those Charters you mention and it had very much concerned your Argument to have got them perused if any there are and to have shewed how far the Parliaments of England have broke through those Original Compacts And herein I think I have granted as much as you desire in your second Head it seems to me all one as to the present Case whether Henry II. be considered Page 13. as Conquestor Hiberniae or as Dominus Hiâ—erniae I shall draw no Arguments from either a Submission you have acknowledged You say Page 15. That all came in peaceably and had large Concessions made them of the like Laws and Liberties with the People of England here again it would have been necessary for you to have produced some of those Concessions that you might have made it appear to the Parliament of England what they were not that I do make any Demur to the freedom of the People of Ireland I take them to be so both in their Lives Liberties and Properties as much and as far as any People in England and I take them to be the more so because they are subject to an English Parliament and so have all the Priviledges of an English People which the Subjects of Scotland have not I take every Subject of the Kingdom of England to be Born Free and to carry this Charter of his Freedom about him let him remove where he will within the Dominions of England and that he cannot be divested thereof but by the Laws of this Land made by his Representatives in Parliament in the Election whereof he either hath or may have a Voice if he qualifies himself as those Laws doe direct This I willingly grant because I would not be thought to argue against the Liberty and Property of English Men wherever they are settled But still I think it had been necessary for you to have produced a Transcript of those Concessions for either they were made or they were not if they were you live in a Kingdom whose Interest it was to preserve them and they must give great light into the present Controversy if none appears how do you know what those Concessions were I insist the more on this because you say they had Concessions of the like Laws and Liberties with the People of England now whether by this you mean the same Laws and Liberties or such as were very like them I am in the dark if the latter they must be either more or less they cannot be more for I take the People of England to be as free as any People in the Universe if they were less then I grant you more then you desire for I take the People of Ireland to stand on the same footing with the People of England and yet I am afraid you are not content therefore I should gladly see a Transcript of those Concessions because I am apt to think we differ in this I say they were to be subject to all the Laws of England in general you exempt them from the Statute-Laws but I expect to find you fuller on this in your Fourth Particular As to your third Particular What Title Conquest gives by the Laws of Nature and Reason Page 18. I shall say little to it supposing it hath no relation to this Controversy for I do grant that the People of Ireland are a free People and that they are as you say Page 20. The Progeny of the English and Britains that from time to time went over into that Kingdom I add who before they went hence were subject to the Statute Laws of England and then the Question will be what were those Concessions that discharged them from rendring Obedience to the Legislative Power of this Kingdom This brings me to your Fourth Particular pag. 28. What Concessions and Grants have been from time to time made to the People of Ireland But the latter part of that Particular pag. 5. By what Degrees the English Form of Government and the English Statute Laws came to be received in Ireland which you say was wholly owing to the Consent of the People and Parliament of Ireland I deny and you are to prove and I conceive this cannot better be done than by producing some Concessions or Grants whereby they are discharged by the Legislative Power of England from the Obedience they owed and always paid to the Statute Laws of this Kingdom before they removed into Ireland And now we are arrived at the true State of the Controversy you suppose that the People of Ireland cannot pay Obedience to the Statute Laws of this Kingdom except they subject themselves to a State of Bondage and I believe they ought to do it especially when those Laws are designed to bind them and that this consists with the State of Liberty and Freedom I will therefore examin what you say on this Fourth Particular The First Precedent you produce is only an Account that Matth. Paris Historiographer to King Henry III. gives who by the way please to note wrote above Sixty Years after King Henry II. took Possession of Ireland That Henry the Second a little before he left Ireland in a Publick Assembly and Council of the Irish at Lismore did cause the Irish to receive and swear to be governed by the Laws of England pag. 28. I desire to know whether the Statute Laws were then part of the Laws of England If they were which I suppose you will not deny for you confess Parliaments to be before that time pag. 39. then please to inform me Whether the People of Ireland consented to the making those Laws If not by your own Argument here is the Slavery which you so much fear and exclaim against through your whole Book introduced on them in the
Laws which Right the People of England pretend to by an original Contract beyond any Books c. and as old as the Common Law of England whereas you seem to infer that our Statute Laws were only Charters or Grants from the King till Henry IIId's Days which I think is an Opinion very disadvantagious to the Liberties of the People of England for which I judge they will give you no thanks except you likewise allow those Charters and Grants were made with their Consent and so were only Declaratory and then no matter what Form they were made in or by what name you call them if that essential part of a Law viz. the Peoples Consent was not wanting I cannot believe there was ever any time when the Liberties of the People of England depended on the Bounty of the King And so I proceed to p. 63. where you say you will enquire how the Statute-Laws and Acts of Parliament made in England since the 9th of Henry III. came to be of force in Ireland and this you conclude p. 64. proceeded from their being allowed of and confirmed in the several Parliaments there and that without this Allowance they had not been Obligatory in Ireland for this you produce the Irish Statutes of 10 Henry VII 10 Henry IV. and 29 Henry VI. the first you say allows of several Acts made in England to be Laws binding in Ireland the two last prohibit any Statute made in England from being in force in the Kingdom of Ireland unless they were allow'd and published by the Parliament of Ireland but yet these Statutes you say p. 64 and 65 are not to be found in the Rolls nor any Parliament Roll of that time but we must depend on the Evidence of Sir Richard Bolton formerly Lord Chief Baron of the Exhequer in Ireland who you say had seen the same exemplified under the Great Seal If I grant this I think I do you a great Favour otherwise I may be apt to call in Question whether you had any Parliaments in Ireland in those days you grant before that you had none till Henry III. and I do not find by what you have written when that Constitution first began and now you say you have no Parliament Rolls of Henry IVth VIth VIIth But you say Sir Richard Bolton had seen an Exemplification which remaineth in the Treasury of Waterford sure 't is a slender Argument but because the stress of the Matter doth not lye on this I will for once grant it you on the bare Testimony of Sir Richard Bolton and would you infer from this that the Statute Laws of England are of no Force in Ireland till they are allowed by the Parliament there Pray Sir how came your Parliament to assume such a Power as to dispute the Authority of the Parliament of England over them What if all our Corporations in England and Plantations in America should do the same who have all Grants and Charters from the King would this be sufficient to free them from the Government of the Parliament if not how comes Ireland to be set free by an Act of its own No Sir English Statutes receive no Force or Sanction from Acts of Parliament made in Ireland You raise a fair Objection against your self pag. 65 66. viz. That the very mentioning these Acts of Parliament in Ireland to prohibit English Acts of Parliament from binding that Kingdom does show that even in those days the Parliaments in England did claim this Superiority but you do not so fully answer it pag. 66. by saying There is nothing so common as to have one Man claim another Man's Right and if bare Pretence will give a Title no Man is secure for it appears this is no Pretence or bare Claim but a Power the Parliament of England once had and you do not tell us when they lost it You say P. 67. This Superiority of the Parliament of England hath been doubted a great while ago and a great while strenuously oppos'd and absolutely denied by the Parliament of Ireland Pray where was this strenuously opposed and in what manner Did the Parliament of Ireland ever enter any publick Protest against this Superiority or did the Kingdom of Ireland ever deny Obedience to the Acts of Parliament made here with intention to bind them No certainly I never heard that any of them were rejected but they have still been received and then what need had the Parliament of England to enquire farther into this matter But you say P. 68. That we have not one single Instance of an English Act of Parliament expresly claiming this Right of binding us What do you infer from thence I know not one single Instance of an Act of Parliament that the King of England shall have a Negative Voice no it is his Prerogative and therefore needed not an Act of Parliament nor is there any more need of it for the other P. 68 69 70. You go on to show how the Parliament of Ireland accepted and allowed several Acts made in England I take them to be Statutes not designed to bind Ireland but it matters not much and therefore I will not be at the pains to peruse them and from hence you draw this Conclusion p. 70. Thus you see by what steps and degrees all the Statutes which were made in England from the time of Magna Charta to the Tenth of Henry the VIIth which did concern the Common Publick Weal were received consirmed allowed and authorized to be of force in Ireland all which was done by assent of the Lords Spiritual and Temporal and the Commons in the Parliament of Ireland Assembled and no otherwise A very pretty way of Arguing viz. That because the Parliament of Ireland did allow of all the Statutes made in England to be good in Ireland therefore they had not been so without such Allowance who do you think is convinced by this Argument besides your self Certainly an indifferent Man would rather have drawn this Conclusion from it viz. That the Parliament of Ireland look'd upon themselves obliged to allow of and pay Obedience to the Laws made by the Parliament of England From p. 70 to 77. you proceed to show how and at what time several English Statutes were allowed of in the Parliament of Ireland To this I can say no more than I have done before only I shall observe what you say p. 70 71. That by the Opinion of your best Lawyers there are divers both before and since the 10th of Henry the VIIth which were and are of force in Ireland though not allowed of by that Parliament and the reason you give for it is p. 71. That they are Declaratory of the antient Common Law of England and not Introductive of any new Law Do you think Sir this to be the only reason why those Laws are of Force in Ireland Suppose Laws had been made to the same purpose in the Parliament of Scotland would they therefore have been pleadable in Ireland
If not let me ask you Why should the Laws made by the Parliament of England have more force in Ireland than those made in Scotland There can be no other reason given for it but this That Ireland is subject to the Jurisdiction of the Parliament of England but is not subject to the Jurisdiction of the Parliament of Scotland Had you told us what Acts of Parliament these were we might have judged whether they were Declaratory or no but since you have omitted that I think the Answer I have given sufficient P. 77. You proceed to consider the Objections and Difficulties that are moved against this your Proposition that the English Laws become passable in Ireland only by the Consent of the People and Parliament thereof these you say arise from Precedents and Passages in your own Law Books that seem to prove the contrary which shews that as Cocksure as you are in this Particular it hath been disputed and doubted by your own Lawyers and in your own Parliaments too if I take the matter right The first you mention is in p. 78. you say That in the Irish Act concerning Rape passed Anno 8 Edvardi 4. 't is expressed that a doubt was conceived whether the English Statute of the Sixth of Richard the Second Chap. 6. ought to be of Force in Ireland without the Confirmation thereof in the Parliament of Ireland all the use I shall make of this is that your Parliaments then doubted this thing Your second Objection is p. 80. That though perhaps such Acts of Parliament in England which do not name Ireland shall not be construed to bind Ireland yet all such English Statutes as mention Ireland either by the general Words of his Majesty's Dominions or by particularly naming of Ireland are and shall be of force in this Kingdom These are your Words and This you say was a Doctrine first broached directly by William Hussy Lord Chief Justice of the King's-Bench in England in the First Year of Henry VIIth and of late revived by the Lord Chief Justice Cooke Pray Sir do you speak in earnest Was this Doctrine never broach'd before the Reign of Henry the VIIth What think you of the several Acts of Parliament made in the several Kings Reigns since Henry the Third down to Henry the Seventh in some whereof they mention Ireland in others they do not do you not believe those several Parliaments thought there was some difference in those Acts But when the Lord Chief Justice Hussy and Sir Edward Cook after him both Persons of great Station in the Law broach'd this Opinion what was done in the Parliament of Ireland thereon Did they ever by any publick Act declare these Oracles of the Law to be in the wrong I do not find by any thing you say that they did and do believe you would not have let such an Argument have lain asleep if you could have brought it therefore I conclude they did not but on the contrary it doth appear that all Laws of that Nature have ever since been observed and obeyed in Ireland and many of them of much later Dates and now I wonder you should come to dispute it by your private Opinion One hundred and fifty Years after the Death of Hussy when in all this time the Body of Ireland hath not undertaken it But I will examine your Arguments against this The first is That the King and his Privy-Council in England have often transmitted into Ireland to be passed into Laws there English Statutes wherein the general Words Of all His Majesty's Dominions or Subjects were comprehended from whence you conclude that they were of a contrary Opinion p. 81 82. Suppose this to be so the most you can conclude from it is that it obliquely shews the King and Privy-Councils Opinion and doth not the Parliaments passing such Acts as well shew the Opinion of the Legislative Power of England But what if the King and Privy-Council of England do as you say actum agere shall this make the Parliaments Intentions in making those Laws void No certainly no more than the Parliament of Ireland's confirming them shall prove they were not binding before for whither the Parliament of Ireland accept or refuse those Laws that are made by the Parliament of England with intention to bind Ireland they are never the more or less binding there P. 84. You proceed and tell us You see no more reason for binding Ireland by the English Laws under the general Words Of all His Majesty's Dominions or Subjects than there is for binding Scotland by the same Truly Sir I believe you else I should wonder to have seen you taking so much Pains But because I am of a different Opinion let me consider this Matter with you Ireland is by several Laws made both in this Kingdom and in that annexed and joined to the Imperial Crown of England but Scotland tho' it has been often sought for never yet obtained that favour Ireland you confess submitted it self to King Henry the Second and thereby became at first annexed to the Crown of England one of the Terms of which Submission was That it should be govern'd by the English Laws whereas Scotland was united to it in the Person of King James and since that by its voluntary Recognition of King William and Queen Mary still keeping its own Laws and leaving a possibility of its becoming a separate Kingdom again which Ireland never can be The People of Ireland I mean the English and Britains which you say p. 20. are a Thousand for One of the antient Irish were once subject to the Legislative Power of England which the People of Scotland never were but always a separate Kingdom The People in Ireland have all the Privileges of English Men and thereby under the easiest Government in Europe which the People in Scotland have not whilst they remain in that Kingdom The People in Ireland are governed by the Common Laws of England one part whereof is That thore Laws may be inlarged abridged or altered by the Parliament of England but the People in Scotland are and ever were governed by their own Laws Ireland is mentioned in several of our Statutes as part of the Kingdom of England and joined with Wales as a dependant thereon which Scotland never was thought to be viz. 27 Edward III. Sess 2. in the Preamble of that Statute are these Words Sect. 2. For the Damage which hath notoriously come as well to us and the Great Men as to the People of our Realm of England and of our Lands of Wales and Ireland Cap. 1. it goes on First that the Staple of Wools c. within our said Realm and Lands Cap. 2. Item to replenish the said Realm and Lands with Money and Plate c. Cap. 3. Item we Will and Grant that all Merchants c. through our Realm and Lands Cap. 4. Item for as much as no Staple can be profitable for us and for our Realm and Lands Cap. 7.
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
A VINDICATION OF THE Parliament of ENGLAND In answer to a BOOK WRITTEN By WILLIAM MOLYNEUX of Dublin Esq INTITULED The Case of Irelands being bound by Acts of Parliament in England stated By JOHN CARY Merchant in Bristol Nolumus Leges Anglicanas mutari LONDON Printed by Freeman Collins and are to be sold by Sam. Crouch in Cornhill and Eliz. Whitlock near Stationers-Hall 1698. To the Right Honourable John Lord Somers Baron of EVESHAM And Lord High Chancellor of ENGLAND I Humbly make bold to Present Your Lordship with this little Tract being an Answer to a Book Entituled The Case of Ireland 's being bound by Acts of Parliament in England stated Written by William Molyneus of Dublin Esquire The Reason which induced me to intermeddle in a thing so much out of my Profession as Matters of Law are was that I had formerly amongst other things discours'd on the State of Ireland in my Essay on Trade and offer'd it as my Opinion That except that Kingdom was bound up more strictly by Laws made in England it would soon destroy our Woollen Manufactory here Wherefore I proposed to reduce it with respect to its Trade to the state of our other Plantations and Settlements Abroad which I supposed the only Means we had left to help our selves and to render Ireland more useful to this Kingdom This I humbly presented to the King 's Most Excellent Majesty and also to the Honourable the Commons of England then sitting in Parliament which I presumed to do because I thought I had Faithfully and Impartially discoursed on the Subjects I undertook at least I knew I had endeavoured to do so and supposing that Book might give some beginning to the Bill for Encouraging the Woollen Manufactures in England and restraining the Exportation of the Woollen Manufactures from Ireland I found my self obliged to consider the Arguments which might be brought against Ireland 's being bound by Statute Laws made in England What Success that Bill will have I know not but I very much fear if something of that nature be not done we shall soon loose that part of our Woollen Manufacture now left which will tend to the Ruining our Poor the Lessening the Value of the Lands of England and depriving us of a great Number of People who will be necessitated to leave this Kingdom and go over to Ireland to follow their Employments there and all this without rendring the Gentlemen of Ireland any sort of Advantage that may not be made up to them another way This I humbly conceive may be done and Ireland encouraged on another Manufacture no way Detrimental to the Interest of England and carried on by such Methods as may become profitable to both Kingdoms Till this be done I very much fear both will be uneasie I humbly beg your Lordship's Pardon for my Presumption and that you will be pleased to accept what I here offer as from a Person who truly Honours your Lordship and so much the more because you have always Asserted the Rights and Powers of Parliaments I am with all Dutiful respect Right Honourable Your Lordship 's most Humble and most Obedient Servant JOHN CARY A VINDICATION of the Parliament of England 's Power to Bind Ireland by their Statute-Laws in Answer to a Book written by William Molyneux of Dublin Esq SIR YOUR Book Entituled The Case of Ireland 's being bound by Acts of Parliament in England Stated I have seen and read over with some thought and because I cannot agree with you in your Opinion I design this as an Answer to shew you the reason why I differ from you But before I proceed farther I shall premise and grant with you That Ireland hath long had a Parliament and I am apt to think that your mistake arises from this that you Build too much on the Name not considering the Power that Parliament Legally hath For this is no more then our Foreign Plantations and great Corporations in England have in the former the Governours represent the King the great Men or Council the Lords and the Commons are represented by such as they elect and send from their several Districts In the latter these three Estates are likewise Represented by the Mayor Aldermen and Common Council of the several Cities or Corporations these make Laws for their better Order and Government yet all subservient to the great Council or Parliament of this Nation from whose Jurisdiction those Priviledges do not in the least set them free but they pay a due Obedience to their Laws especially those made with an Intention to bind them The Dispute now between you and me is Whither Ireland can be bound by our English Acts of Parliament This you deny and I affirm I will therefore proceed to enquire into your Arguments And because I intend as much Brevity as possible I can I will pass by all that in your Book which I apprehend doth not concern the Matter in Dispute Your Stile is good and your Language like a Gentleman but with this fault that under that you sometimes endeavour to cloud your Design and represent it to the Reader quite different from your own Intention Page 4 You tell us That the Subject of your present Disquisition shall be how far the Parliament of England may think it reasonable to intermeddle with the Affairs of Ireland and bind you up by Laws made in their House This you might have informed your self from our Statute-Books which begin with the Laws of Henry III. about Five hundred years since and you will find that in that King's Reign and ever since in the Reigns of his Successors the Parliament of England have thought it reasonable to Bind up Ireland by Laws made here so often as they saw there was occasion and no doubt they did the same or at least had Power so to do in the Reigns of Henry II. Richard I. and King John who all preceded King Henry III. and Reigned after Ireland came under the English Government Now were that all the Question in Dispute I could soon answer you that what the Parliaments of England did Five hundred years past and have done ever since the present Parliaments think reasonable to suppose themselves impowered to do because they make Precedents of former times their Rule and Government so that 't is not the Will but the Power of the Parliament of England in this Matter that you Dispute and this appears more plainly in your next Paragraph where you call it a pretended Right founded only on the imaginary Title of Conquest or Purchase or on Precedents and Matters of Record I do not think it very material for me to consider on which of these imaginary Titles as you call them they pretend to this Power the Question will not turn on that 't is enough if I assert and prove that the Parliaments of England did exercise this Power ever since Ireland hath been under the English Government and I think it will lye on you to
discharge any Persons or the Places they govern from Obedience to the Legislative Authority of England If it doth I should think That granted by Henry IV. to Sir John Talbot would go a great way in it which you give us pag. 33. in these Words Dilecti fidelis nostri Johannis Talbot de Hallom shire Chevaler locum nostrum tenentis terrae nostrae Hiberniae which you interpret pag. 32. Lord Lieutenant of Ireland and it is not to be doubted but Henry IV. thought he had not divested himself of his Regal Authority in Ireland thereby for though we do not find any Statutes made in his Reign to bind that Kingdom yet we do in the Reign of his Son Henry V. and those Kings who succeeded him if then John Earl of Moreton was never created King of Ireland nor That made a separate Kingdom in the Parliament at Oxon as you alledge but do not prove then all your Arguments drawn thence pag. 41 42 43 44. beginning with this Paragraph Let us then suppose that c. fall to the Ground As for its being annext to the Imperial Crown of England by several Acts of Parliament both here and there which you mention pag. 43. I do agree to the Reason you give for it pag. 44. as one viz. That it should not be alienated or separated from the Kings of England But I hope you will not draw any Inference from this that Ireland therefore is not subject to our Legislative Power it seems to me a greater Argument that it is and those Acts made in Ireland look like an Acknowledgement of it seeing the Members there knew the Opinion of the Parliament of England by their continued Practice of making Laws to bind it I am the longer on this Subject of Henry the Seconds making his Son John King of Ireland and That a separate Kingdom because I find you insist upon it as a thing unquestionable through your whole Book and I am willing to clear it here to prevent often Repetitions I will proceed with you to King John's going over into Ireland after he became King of England pag. 44. for which you quote Mat. Paris who saith Cum venisset ad Dublinensem civitatem occurrerunt ei ibidem plusquam 20 Regul'â— illius Regionis qui omnes timore maximo praeteriti Homagium ei fidelitatem fecerunt Fecit quoque Rex ibidem construere Leges Consuetudines Anglicanas ponens Vice cometes aliosque ministros qui populum Regni illius juxta Leges Anglicanas judicarent This you know was long after that Amicable Concession or Original Compact you mention pag. 37. to be made between Henry II. and the People of Ireland and long after the same King John was made King of Ireland by his Father and yet your Author says fecit quoque Rex ibidem c. which I English thus He appointed Officers to govern them by the English Laws wherein he caused them to be instructed So that here is a second original Compact if you will call it so viz. That they must be govern'd by the English Laws and Customs and now I think we are agreed the Matter viz. That they were to be govern'd by the English Laws Let us see then where we differ for I am very willing to part Friends with a Gentleman of your Parts your Fault is that you would willingly make more from things then was ever intended by them Page 45. You proceed to speak of a Magna Charta granted by Henry III. to Ireland dated at Bristol the 12th of November in the first year of his Reign which you say is agreeable to the Magna Charta granted to England I have not seen it nor have you set it forth so I can say nothing to its Contents I will only ask you whither it doth discharge Ireland from being subject to the Legislative Power of England which is the matter in hand and if it does whether it was confirmed by Parliament I will not differ with you whose Seals were put to it whether the King 's own or the venerable Persons you there mention if it doth not discharge from Obedience to Laws made by the Parliament of England and was not confirmed by them I examine no farther And I do not remember I ever heard of a Parliament held at Bristol nor doth this seem to be one because you say it was by advice of his Council of England whose Names are particularly recited which I therefore take to be the Privy Council in opposition to the great Council or Parliament of England and the rather because I find this was the usual Form of granting Charters in those days I shall only Note that this you say was eight years older then that which he granted to England Page 46. You set forth another Charter sent them by the said King in February following the Substance whereof you give us Page 47. Volumus quod in Signum fidelitatis vestrae tam praeclarae tam insignis libertatibus Regno nostro Angliae a Patre nostro nobis concessis de gratia nostra dono in Regno nostro Hiberniae Gaudiatis vos vestri Haeredes in Perpetuum This was made by advice of his Common Council and Sealed with their Seals as it follows in the same Page Quas distincte in Scriptum reductas de communi Concilio omnium sidelium nostrorum vobis mittimus signatas sigillis Domini nostri G. Apostolicae sedis Legati fidelis nostri Com. W. Maresc Rectoris nostri Regni nostri quia sigillum nondum habuimus easdem processu temporis de majori Concilio proprio sigillo signaturi Teste apud Glouc. 6 Febru So that here you see there is a difference between the Communi Concilio and the Majori Concilio but neither do you set forth nor can I guess what those Liberties were being before our Magna Charta of England as you confess p. 45. and does appear by our Statute-Books the latter being made the Ninth Year of his Reign and this you say in the First But I cannot allow of your Paraphrase on it p. 48. Here we have a free Grant of all the Liberties of England to the People of Ireland I differ with you in this because the Grant you mention doth not say they shall enjoy all the Liberties of English Men but all those Liberties which had been granted by his Father and himself to his Kingdom of England what those were you do not set forth and it can have no Reference to our Magna Charta besides it seems strange he should ex mero motu then grant those Priviledges to Ireland which if I mistake not cost England afterwards a great deal of trouble to bring him to acknowledge to be their right But be this as it will I do not see how it signifies much to the question in hand except it be allowed that the King by Charter can discharge the Subjects of England from Obedience to the Legislative Power Nor can I see
what use you make of the Record produced from Mr. Petit p. 49 50. except it be to shew that the Citizens and Burghers of England were a part of the Parliament of England time out of mind if this be the design I have no reason to differ from you nor shall I dissent from you in this that the Parliament of Ireland hath in times past but how long I know not and still doth raise Money on the Subject there p. 51. But yet this doth not prove that Ireland is free from the Jurisdiction of the Parliament of England nor can any measures be taken from this Quotation either to prove that there was a Parliament in Ireland at that time or the Powers it had being as you confess only a Letter from the Queen in her Necessities and you do not tell us what was done thereon Your next Record is in the 12th of Henry III. p. 52 53. directed to Richard de Bourgh then Justice of Ireland to assemble the Archbishops Bishops c. Et coram eis publice legi faciatis Chartam Domini J. Regis Patris nostri cui sigillum suum appensum est quam fieri fecit Jurari à Magnatibus Hibern de legibus consuetudinis Angliae observandis in Hibernia precipiatis eis exparte nostra quod leges illas consuetudines in Charta praedicta contentas de caetero firmiter teneant observent hoc idem per singulos comitatus Hiberniae clamari faciatis teneri prohibentes firmiter exparte nostra super foris facturam nostram nequis contra hoc mandatum nostrum venire praesumat c. p. 53. Here is no mention made of their making Laws themselves but that they shall be governed by the Laws made in England nor do I find by any Record you produce that that Assembly or any other had power to refuse the Laws transmitted to them from time to time out of England So that all these Records and the Proceedings thereon confirm my Opinion that you are in the wrong and I am apt to question whether Originally the Parliaments of Ireland had Power to make Laws but only to Receive and Obey those sent from England it doth not appear they had by any thing you have yet produced and then the People of Ireland will be little beholding to you for the pains you have taken Though I perceive you draw a strange Inference p. 55. That from the days of the three Kings viz. Henry II. King John and Henry III. England and Ireland have been both governed by the like Forms of Government under one and the same supream head the King of England yet so as that both Kingdoms remained separate and distinct in their several Jurisdictions You say p. 56. That you will mention no more precedents nor enter no farther into that matter and herein I think you do well except they will make more for you then those you have quoted already though if one would take for Law the Descants you make on them they would seem to infer more then they do which as I have before hinted seems to be your fault throughout your whole Book But Charters and Grants do best explain themselves You say pag. 56. If we now inquire what were those Laws of England that became thus established in Ireland Surely we must first reckon the great Law of Parliaments which you explain after thus The free Debate and Consent of the People by themselves or their chosen Representatives I should be glad to see this totidem Verbis in the Charters which would seem plainer to me than to be governed by your Glosses however it not being my Design to inquire by what Steps the Parliament of Ireland grew up to what it now is but to defend the Jurisdiction of the Parliament of England over Ireland I shall enquire no farther into that matter and this after all you have said seems plain from the Actions of those very Times for the same King Henry III. who best knew what Priviledges he had granted in the Fourteenth Year of his Reign made a Law to bind Ireland called Statutum Hiberniae which past at Westminster the 9th of February 1229. which is about the same time he impower'd Richard de Burgh to summon together the People of Ireland pag. 52. which you would have to be a Parliament but I much doubt it Note that this was Twelve Years after the Two great Charters from Bristol and Gloucester pag. 45 and 47. And now methinks you seem to differ from what you had said before pag. 29. That Henry II. did not only settle the Laws of England in Ireland c. but did likewise allow them the Freedom of holding Parliaments in Ireland as a separate and distinct Kingdom from England for which you quoted Sir Edward Cooke and pag. 56. you said Mr. Pryn acknowledges One viz. a Parliament in Ireland in Henry II d's Time and now pag. 58. you say Till a regular Legislature was established among them and this is after the Three First Kings viz. Henry II. Richard I. and King John so that here you grant there was no Parliament settled in Ireland till Henry IIId's Days and yet you allow pag. 58. that till that time Ireland was governed by the Statute Laws of England your Words are speaking of the Statute Laws of England we must repute them to have submitted to these likewise if so then all the Grants of Henry II. Richard I. and King John did not discharge the People of Ireland from being governed by the Statute Laws of England Pray then when and how came they to be discharged I think now the Onus probandi lies plainly on your Side the Charters of Henry III. before recited do not discharge them nor doth that of King John but rather bind them faster the Words are pag. 53. Coram eis publice legi faciatis Chartam c. precipiatis eis exparte nostra quod Leges illas consuetudines in Charta praedicta contentas de caetero firmiter teneant observent So that by your own Arguments it doth appear that the People of Ireland are bound to obey the Statutes made in the Parliament of England except you can produce something later to discharge them and then what becomes of your Modus tenendi Parliament ' so much talk'd of before in Henry IId's Days and herein we are again agreed You proceed pag. 58. and say That the Statutes of England from the Norman Conquest to Henry III d's Time were very few and slender only Charters or several Grants of Liberties from the King which nevertheless had the Force of Acts of Parliament c. The shortness of an Act of Parliament does not I hope make it less a Law I wish they could have kept to those short Forms still but that which makes an Act of Parliament is the Consent of the People given at the making of it if this were wanting the Grants and Charters you mention could be no
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
Poor so that all Persons from the King to the Beggar reap advantage by it I hope I say you will spare us these Acts tho' I can't believe you would did it lye in your power to take them from us therefore I will pull up my Spirits and enquire whether you have this Power you pretend to The quotation you make is from Pulton I have perused him but he goes no farther then 4 Car. 1. and I can meet with no Body who hath seen any later Edition therefore I suppose you must mean Keeble if so you have left out a great part of the Remark For there I find it to be thus An Act for reducing the Rebels in Ireland to their Obedience to his Majesty and the Crown of England EXP. See an Act for the Settlement of Ireland passed in that Kingdom Anno 14 Car. 2. 1662. by which this and the following Acts concerning Ireland are besides their Expiration of no force Methinks I find my Spirits revived it is not so bad as you represented it Keeble saith the Act is expired and then that is the reason why 't is of no force Every Body that understands Parliaments knows that none of their Acts can remain in force longer then they intended them But now I think of it I was to blame to be so much disturbed For what if Pulton had said so Hath Pulton liberty to bound the Power of the Parliaments of England by Notes he shall print in his Statute Book 'T was my extraordinary love for Parliaments not the weight of your Argument that cast me down at first Perhaps Sir you may think this way of arguing savours of Levity I confess it does but you may please likewise to consider That some People are not to be beat out of their groundless Fancies but by ridiculing them Would any prudent Man have thus wrested the Sence of this Note and then brought it as an Argument against the Authority of the Parliament of England Surely by leaving out EXP you expected to have catcht Butterflies I suspect your candidness in those other Quotations wherewith your Book abounds tho' many of them to little purpose by your insincerity in this And having thus got over this Goliah Argument of yours against the Power of our English Parliaments I am the less careful to give Answer to the Objection you raise your self pag. 101. viz. It will be said That by those Acts 't is manifest that England did presume they had such a right to pass Acts binding to Ireland or else they had never done it I confess I am of that opinion only I will not call it a Presumption I think it the just right of the Parliament of England to exercise a Legislative Power over the Kingdom of Ireland And what Answer do you give to this Objection of your own framing why truly The deplorable Condition of Ireland at that time made it impossible for them to have a Parliament of their own and it being absolutely necessary that something should be done toward the suppressing the Violences then raging among them the only means could then be practised was for the Parliament of England to interpose and do something for their Relief and Safety Was this the true Reason Pray what could you expect from the Parliament of England if Ireland was a separate Kingdom and they had not Power to make Laws to bind it The Laws they made could then be of no more Service to them then if they had been framed in the Parliament of Scotland besides the danger of such a Precedent But now I think of it you were not afraid of that danger the Parliament of England had made Laws for you five hundred years before and therefore what they did at that time was not as you say to Interpose but to put in execution a Legislative Authority they had over you As to what past in Cromwel's days p. 101 102. I shall say little to it 't is not of much moment one way or the other And now I am come with you to King Charles the Second's days and in it you say there were several Statutes made to bind Ireland pag. 102. The first you mention is An Act against importing Cattle from Ireland or other Parts beyond the Seas 18 Car. 2. cap. 2. made perpetual by two Acts in the same Reign These you say do not bind Ireland and I say so too therefore I wonder you mention them The next you quote are The Acts against planting Tobacco in England and Ireland 12 Car. 2. cap. 34. 15 Car. 2. cap. 7. 22 23 Car. 2. cap. 26. these you say do positively bind Ireland pag. 103. But you suggest That as there was no need of making them because no Tobacco was ever planted in Ireland which perhaps there might have been if those Laws had not been made so you imply they are of no force in Ireland now made for you see no more reason for sending of Force to trample down an Acre of Tobacco in Ireland by those Statutes then there would be for cutting down the Woods of Shelela were there an Act made in England against your planting or having Timber Truly Sir I am of the same opinion for if the Parliament of England had made a Law against planting and having Timber in Ireland I do not see how you could have avoided putting it in execution any more then you could this And here we are once more agreed The next you mention is the Navigation Act pag. 103. by which I suppose you mean the before-mentioned Act 22 23 Car. 2. also the two Acts against exporting of Wool 12 Car. 2. cap. 32. and 14 Car. 2. cap. 18. pag. 104. These you confess do bind Ireland and have received due obedience but what right the Parliament of England had to make these Statutes you very much question you take them to be Innovations on you as not being warranted by former Precedents for that you say before these Acts the eldest of which is not over Thirty seven years there is not one positive full Precedent to be met with in all the Statute Books of an English Act binding the Kingdom of Ireland pag. 104. Thence you argue p. 105. Shall Proceedings only of Thirty seven years standing be urged against a Nation to deprive them of their Rights and Liberties which they enjoyed for Five hundred years before and which were invaded without and against their Consent and from that day to this have been constantly complained of Let any English Heart that stands so justly in vindication of his own Rights and Liberties answer this Question and I have done Well Sir I think now we are like to bring the Matter to a short Issue provided you will stand to what you say for I confess I must agree with you in this so reasonable a Challenge viz. That if no positive full Precedent can be produced of above Thirty seven years standing whereby the Parliament of England have made Laws to bind
Ireland I think what they have lately done in that Matter to be an Invasion on your Rights and Liberties And here I believe I state the question much in your favour for in your Appeal to any English Heart that stands for his own Rights and Liberties you say that these Invasions have been constantly complained of from that day to this which should I put you on the proof of I am afraid you would be at a great loss to do it Pray who made the Complaints and to whom for it must be done by your Parliament of Ireland to the Parliament of England else it cannot be supposed to be a Regular Complaint But we will take it as I state it and thereby put the Onus probandi on my self That the Parliament of England did make positive full Laws to bind Ireland before the days of Charles the Second my work then is to produce them and because I will be fair with you in this Combat I shall wave the three Statutes you have before excepted against whether justly or not I leave to the Reader on what I have said before viz. Statutum Hiberniae Ordinatio pro Statu Hiberniae and the Staple Act 2 Hen. 6. These three to please you shall be dismist the Ring Come then let us begin What think you of the Statute of Merchants 13 Edw. 1. Anno 1258 which is Four hundred and forty years since wherein as I have said before Ireland is mentioned and bound I hope you will allow this to be positive and full and then I have only these two things to prove first That there is such a Statute and for this I refer you to Keeble Secondly That it is acknowledged here to be a Law and this the constant practice of the Kingdom of England puts out of doubt it being accounted one of our best Securities in matters of Dealing and a Statute being made 21 Jac. 1. which among other things makes it Felony without Benefit of the Clergy to acknowledge a Statute in the name of another Person not privy or consenting to it also to procure it to be done I have known two Persons convicted thereon in this City for acknowledging the above Statute of Merchants and receive Sentence accordingly Now Sir I hope you will yield you are in the wrong But because by the Testimony of two or three Witnesses every thing ought to be tried I will give you another viz. that of 11 Edw. 3. Anno 1337. mentioned before which is 360 years since wherein Ireland is also mentioned and positively bound I will add a third which I have likewise mentioned before viz. the Statute Staple 27 Edw. 3. Anno 1353. which is Three hundred and forty years since in the first Chapter whereof the Staple Towns are settled for Ireland and in almost every Chapter Ireland is mentioned under some name or other and positively bound I could produce many more but having had occasion to mention them before I will not swell my Answer by repetition I hope now Sir I have fully proved all I undertook and you proposed and that you will acknowledge your self to be in an error and give up the Cause for I am weary of following as you lead because I am forced thus to repeat the same things again But I must go on to the end of your Book perhaps you have something more material to offer then I have yet seen But before I proceed I will mention one Statute made in the Reign of King Charles the Second which you omit and I will put you in mind of 't was in his Twelfth year cap. 7. The Title which is all I find of it in the Statute Book is An Act for restoring unto James Marquess of Ormond all his Honours Mannors Lands and Tenements in Ireland whereof he was in possession on the 23 d day of October 1641. or at any time since which being as it were a private Act is not printed at large Now I am apt to think that the Marquess of Ormond thought the Parliament of England had a Legislative Power over Ireland else he was very much to blame to be at the Charge and Trouble of getting this Act past And do you think that a Person of his Honour and Interest in Ireland had any design to betray and give up the Liberties thereof I come now with you to the Reign of his present Majesty which you call a happy Government and I think that we in England have just cause to call it so too and to bless God for it as I doubt not but we do But I am sure 't is more especially happy to the Protestant Interest in Ireland else I fear their Lands had had other Owners before this time though perhaps under a former Reign the Powers of an Irish Parliament might have been asserted in order to clip the Wings of the Parliament of England till both had been levelled to the despotick power of the Prince But however as happy as this Government is I find you have something to say against it The Parliament in this happy Reign have made Laws to bind Ireland which is a thing you complain of and more especially because it was done at a time when the Subjects of England have more strenuously then ever asserted their own Rights and the Liberty of Parliaments pag. 105. Why then Sir you have no reason to complain for this was one way by which they asserted their own Rights and the Liberty of Parliaments though this was not the only way They asserted it likewise in an Act made Anno 1 Gul. Mar. cap. 2. intituled An Act declaring the Rights and Liberties of the Subjects and setting the Succession of the Crown And in an Act made Anno 6 Gul. Mar. cap. 2. intituled An Act for the frequent meeting and calling of Parliaments But as great Asserters as they were of the Liberty of Parliaments I do not see one word mentioned in that Act relating to the Parliament of Ireland from whence I infer That they thought there was but one Parliament for all those Kingdoms Lands and Countries which were annexed to the Imperial Crown of England else certainly that Parliament which thought they had Power to make Laws to bind Ireland and who you confess made them out of good will and kindness to you under those Miseries that Ireland then suffer'd pag. 106. would have taken some care for that Kingdom in a Matter of such Weight even for many of those Reasons whereon that Statute is grounded had they not thought Ireland subject to their own Legislative Power But let us come to the Statutes which you mention to be made in this Reign wherein Ireland is named The first is pag. 107. An Act made 1 Gul. Mar. cap. 29. intituled An Act for Relief of the Protestant Irish Clergy This you say was obtained by the distressed Protestant Clergy of Ireland who were driven into England and by accepting Ecclesiastical Promotions here had forfeited those they had
to a Law This I presume must be done either by a Man's self or by his chosen Representative if so then we will consider how far this will affect the People of Ireland with respect to the Matter we are now upon For I believe you will grant that if a Man denies or neglects to qualifie himself for such an Election or if qualified refuses to be present thereat or removes himself at such a distance that he cannot if he would this Man is not denied his Consent nor is his Liberty broken in upon though he be afterwards bound up by Laws made by a Parliament in the Election of whose Members he actually gave no Vote the Laws governing Elections being made by a common Consent though they may seem to affect some Persons severely yet being thought convenient for the whole Community ought to be submitted to And as for the other two things being Acts of a Man 's own his Choice is supposed to go along with them If this be not allowed there never was any Election free For suppose I will not make my self a Freeholder for a County Citizen or Burgess for a Corporation must the Laws already made be Cancelled to gratify my Humour Or suppose that I go on a Voyage to Sea or settle my self in the Plantations Abroad shall not I be bound by the Statute-Laws of England because I was not actually present at the Election of the Members that made them If this be admitted few Men will care to be there 'T is a pleasant way of Arguing till it comes to be closely applied Now there is no English Subject in Ireland but may put himself if he please under one of these Qualifications that is he is capacitated to do it as he is an Englishman and this is what his Ancestors did before him to whose Privileges he succeeds and must not expect that new Itinerant Courts of Parliament shall be erected to follow him where-ever he thinks fit to remove If this be allowed to the Gentlemen of Ireland why should it be denied to those who settled in our Plantations in America they all removed out of England on the same Principles of advancing their own private Fortunes and what a Jumble of Laws should we then have Not but that I think it highly reasonable they should all have power to make private Laws for the better governing their several Colonies and this they do by Representatives chosen by themselves which in the Lesser Plantations they call Assemblies but in Ireland a Parliament which Assemblies and the Laws they make ought still to be in Submission to the Superior Power of the Parliament of England But if I do not mistake you have somewhere own'd that Ireland did once send Representatives to the Parliament of England I must turn back and I find it in p. 95. where you say There have been other Statutes or Ordinances made in England for Ireland which may reasonably be of Force here because they were made and assented to by our own Representatives And you go on to shew from the White Book in the Exchequer in Dublin the form of a Writ sent by King Edward I. to his Chancellor of Ireland wherein he mentions Quaedam Statuta per nos de assensu Prelatorum Comitum Baronum Communitatis Regni nostri Hiberniae nuper apud Lincoln quaedam alia Statuta post modum apud Eborum facta These you suppose to be Statutes made either at the Request of the States of Ireland or by the Assent of your own Representatives the Lords Spiritual and Temporal and Commons of Ireland and from this you Argue p. 96. That the King and Parliament of England would not Enact Laws to bind Ireland without the Concurrence of the Representatives of this Kingdom Well Sir put what Sence you please on it this shews plainly that you then came to England for your Laws and that the Parliament of England had a Legislative Jurisdiction over you in those early days so that all makes the worse for your Argument How then came you to be free from it For either you cast off the Parliament of England or the Parliament of England cast off you 't is not the latter for the Parliament is still careful for your Welfare and makes good Laws for your better Government and I see no Power you had to cast them off except you will at the same time say you are not English-Men which I hope you will not but I find you are like froward Children who will not eat their Bread and Butter unless it be Sugar'd nothing will please you unless the Parliament of England will resign their Legislative Authority which they shall never have my Consent to except I see better Reasons for it than any you have yet produced But you proceed p. 96. Formerly when Ireland was but thinly Peopled and the English Laws not fully currant in all parts of the Kingdom 't is probable that then they could not frequently Assemble with conveniency or safety to make Laws in their own Parliaments at Home and therefore during the Heats of Rebellions or Confusion of the Times they were forc'd to Enact Laws in England Truely 't is a very probable Story you tell us I take Bevis of Southampton or Guy of Warwick to be altogether as probable Come let us examine it In the former part of your Book you lay it down as undeniable That Henry II. in the Parliament at Oxford made a Donation of Ireland to his Son John as a separate Kingdom and as such Parliaments were there settled I must confess I think 't is all of a piece now you tell us that because the People of Ireland could not Assemble with Conveniency and Safety to make Laws during the Heats of Rebellions and Confusions of Times there they came to England to make them here just like the Birds that remove at their Pleasure from colder Climates to make their Nests in Warmer But you prove nothing of this nor is it at all likely Pray when were these Heats of Rebellions not in the Days of Henry II. for you say p. 8. that Anno 1172 Ireland was quietly surrendred to him by Richard Strongbow at Dublin afterwards p. 30. you say he settled a modus tenendi Parliam p. 39. you say that five Years after his return from thence he created his Younger Son John King of Ireland who went thither and that the Irish Nobility and Gentry immediately repaired to him 'T is true you say there was some Difference between them about their long rude Beards but I hope you will not call that a Rebellion p. 40. you imply to us that King John made another Voyage thither which How and Baker say was the 31 Hen. 2. being eight Years after You proceed also and tell us That King John govern'd them Two and twenty Years during the Lives of his Father Henry II. and his Brother Richard I. in which time he made them divers Grants and Charters so that hitherto
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