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england_n	bring_v	king_n	parliament_n	3,136	5	6.2875	4	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
B04178	The Lord Bishop of Londonderry's case: with some reasons humbly offered to the consideration of the Lords in England, to induce their lordships not to take cognizance of an appeal lately brought before them by the Society of Assistants in London for Ulster in Ireland, against an order of the House of Lords in Ireland, made the last sessions of Parliament there.	Sloane, James.; Annesley, Francis, fl. 1707.; England and Wales. Parliament. House of Lords.	1698 (1698)	Wing L3041; ESTC R180058	6,739	4

THE Lord Bishop of Londonderry's CASE With some Reasons humbly offered to the Consideration of the Lords in England to induce their Lordships not to take cognizance of an Appeal lately brought before them by the Society and Assistants of London for Vlster in Ireland against an Order of the House of Lords in Ireland made the last Sessions of Parliament there THOUGH the Title upon the Merits is not now to be debated before the Lords yet it is necessary to show the Fact on which this Appeal has been brought for on that arises the Question about the Jurisdiction The Predecessors of the Bishop in right of the Church were seized of the Lands in Question ever since any Settlement of the Church in Ireland and so long since as the 11th of June 1638. Dr. Bramhall the then Bishop by Virtue of Acts of Parliament of Ireland 10th and 11th Car. 1. granted them in Lease to the Corporation of Londonderry at 50 l. yearly Rent for sixty Years from the 14th of July 1634. which Lease ended the 14th of July 1694. and saving the Twelve years Troubles of Cromwell's Time the Rent and even the last Quarters Rent was constantly and duly paid by them and they by their Council Mr. Cairnes and others applied for a new Lease but the Bishop not agreeing to such undervalue and unreasonable Terms as they proposed there was thereupon an Attempt to disseize the Bishop of his Freehold by means of the said Mr. Cairnes also Agent for the said Society and of one Harvey Chamberlain of the said Corporation and of the Under-tenants who lived on the Premises and they pretended to set up a Title in the Society and agreed to take a Lease from them at 90 l. 10 s. per Annum and partly by force in some places and by practices with the Under-Tenants who pretended to attorn in other places they endeavoured to get the Possession The Bishop to save the Church from being stript of its Patrimony by such Contrivances and Frauds as were in this Case where all the Confederates by several sorts of Rewards for their Practices had made themselves Parties and interested therein and there being no Remedy to regain the Possession upon the Statutes of forcible Entry by reason it was within the Liberties of Londonderry where no Justices of the Peace have any Power but themselves who were interested or concerned therein According to the common Usage in that Kingdom brought a Bill in Chancery there to be by Injunction quieted in his Possession and had the Common Affidavit of his Possession and the Cause coming to be heard on the 11th of June 1697. both the Chief Justices being called by the Lord Chancellor for his Assistants declared That the Bishop ought to be restored and quieted in his Possession But the Lord Chancellor declared That though the Society had no right to the Possession yet he could not grant any Injunction to quiet the Bishop's Possession till it were tried by a Jury whether the Bishop or his Predecessors were ever in actual Possession so as to have a Right to the Possession at the Expiration of the Lease conceiving the Justice of the Case to be that if the Bishop were ever in actual Possession he ought to be adjudged so at the Expiration of the Lease yet he would not order an Injunction And on a second hearing of the 30th of June his Lorship was pleased to decree That if the Lord Bishop of Londonderry or any of his Predecessors ever were in the actual Possession or in such Possession by the Receipt of the Rents during the Lease that doth by Construction of Law give the Lord Bishop a Right to the actual Possession upon the Expiration of the Lease that then he ought to be quieted in his Possession by Injunction of this Court but if the Lord Bishop or any of his Predecessors never were in any such Possession then this Court cannot grant an Injunction therefore a Tryal at Law shall be directed upon an Issue proper From which Decree the Bishop appealed to the Lords there who taking the Possession of the Bishops Tenants to be the Possession of the Bishop as the Chief Justices had done and the Lords having a just Indignation against the undue Practices and Treacheries which they saw proved in this Case they did thereupon alter that Decree and ordered the Bishop's Possession to be quieted which is no more than has been constantly till now in such Cases done there by the Court of Chancery and can be no wrong to the Society for if they have any Right they may bring their Action and try it at Law as soon as they please But instead of that they have brought this Appeal against the Order of the Lords in Ireland and thereupon your Lordships seeing it primae impressionis and that such an Appeal had never been before attempted from the Lords in Ireland were pleased not to read the Petition of Appeal but to direct Presidents to be sent from thence touching the Method of Appealing from the Chancery there And on these Presidents and what others are to be offered here and the reasons of this Case It is humby hoped that your Lorships will not take cognizance of this new sort of Appeal Co. 1. Inst 81. Dyer 376. I. It must in the first place be allowed that no Court whatsoever hath any Right of Jurisdiction but either by Usage and Prescription or by Grant and neither of these can be pretended in this Case for from the beginning to this time there never before was any Appeal brought from the Lords of Ireland to the Lords of England and it must be granted to be a strong Argument That as my Lord Cooke says what never has been done ought not to be done nor can be done II. In the next place 't is to be considered That the Lords in Ireland have for many Ages exercised such Jurisdiction there as the Lords in England have done here and Claim such Rights from the Constitution of that Kingdom by the Concessions and Grants of the Kings of England and from Usage and Prescription and that it has been allowed them in England and never till now any Appeal was brought against any one of their Judgments Decrees or Orders whatsoever To shew what Authority England hath allowed to the Parliament of Ireland see the Records following Ex Rot. Pat. de Anno 30 Reg. Regis Henrici 3. M. 1. Quia pro communi utilitate Terrae Hiberniae unitate Terrarum Regis Rex vult de communi Concilio Regis provisum est quod omnes leges Consuetudinis quae in Regno Angliae tenentur in Hibernia teneantur eadem terrae eisdem legibus subjaceat per easdem regatur sicut Dominus Johannes Rex cum ultimo esset in Hibernia statuit fieri mandavit Quia etiam quod Rex vult quod omnia brevia de Communi jure quae currunt in Angli● similiter currant in Hibernia sub

novo sigillo Regis Mandatum est Archiepiscopis c. Quod propace tranquilitate ejusdem terrae per easdem leges eos Regi deduci permittant eos in omnibus sequantur In cujus c. Teste Rege apud Wudstock 19. die Septembris Pryn's Anim. 286. 29. Ed. 3. King Edward the IIId in the 29th Year of his Reign by Advice of his Council made an Ordinance Reciting That whereas many of the Kingdom of Ireland by reason of their great labour charge and expence in coming for England to be redressed and to seek for Justice have been reduced to great misery and want and wholly ruined which the said King and Council taking into Consideration for the quiet and good Government of the people of Ireland Ordained that in all Cases whatsoever Errors in Judgment in Records and Process in the Courts of Ireland shall be corrected and amended in Parliament in Ireland Co. 4 Inst 12. Selden 's Titles of Honour part 2. cap. 5. sect 26. The Modus tenendi Parliamentum Was Exemplified and sent over by H. the IId the same in words with that in England and in the end of it it is said that things in Ireland may be examined and corrected in pleno Parliamento non alibi and my Lord Cook mentions the words of the old Record Terra Hiberniae intra se habet Parliamentum omnes omnimodas curias prout in Anglia idem Parliamentum facit leges mutat leges illi de eadem terra non obligantur per Statut in Anglia quia hii non habent milites Parliamenti and my Lord Cook mentions another old Roll of Parliament Rot. Pat. 10. Ed. 2. Co. 4. Inst 350. De Parliamentis tenendis singulis Annis in Hibernia which was likewise the old Law of England but till the Dissolution of the Parliament there in 1665. this Law by frefrequent Parliaments were more duly observed there than in England St Hib. 10. H. 7. cap. 22. And there they have from time to time made their own Laws and in the Tenth H. 7th by one Act made all the Statutes of England of force there which includes as well the Statutes relating to the Rights of Parliament as other Statutes And since that time they have by particular Acts there Re-enacted such subsequent Acts of England as they thought good for them And if the Lords should take Cognizance of such Appeals the same inconveniences and vexations would attend the poor People there which induced the Parliament to take away the High Commission Court here for that it brought People from the remote parts of the Kingdom before them whereas they might with less trouble and expence have had Justice in their Courts at home It likewise agrees with the Reasons of the Two Ancient Statute of England mentioned by my Lord Cook in the Third of R. Second Co. 4. Inst 356. Rot. Pat. 3 R 2. nu 42. That Persons having Estates in Ireland should reside there else half of their Estates to go to maintain the Forts against the Irish And it was the great mischief of Ancient times in England that People were carried out of the Kingdom by Appeal to Rome and poor People not able to follow them thereby utterly undone and should the Lords of England at this day inquire into Mischiefs and Inconveniences if your Lordships hear this Appeal and unsettle things done by the Lords there besides the endless trouble to their Lordships the vexations and expence to the People it would be of infinite mischief and disturbance to most of the Titles and Families who are now there in peace and acquiesce on what has been done there and if your Lordships take Cognizane of this you may by the same reason take Cognizance of all other Things Orders and Proceedings whatsoever there The Exercise of the Jurisdiction of the Parliament in Ireland both of Ancient and later times appeareth to be as in England by their taking Cognizance of Impeachments Writs of Error and Appeals Some instances whereof are hereunto annexed though many of the Records and Journals of the Parliament of that Kingdom have been by the many Troubles and Rebellions there burnt and destroy'd yet it doth appear That the Lords there have from time to time exerted their Jurisdiction as aforesaid and all their Orders and Judgments have till now stood firm and that they have as near as they could from time to time in their Rules and Methods of Justice and Proceedings followed the Presidents that Your Lordships and Your Noble Ancestors made here Obj. 1 It is Objected That a Writ of Error lies to the King's-Bench in England from the King's-Bench in Ireland And it is so but then that has had a constant allowed usage to warrant it and it does not follow because a Writ of Error lies to the Kings-Bench here that therefore Appeals would lie from the Chancery there to the Chancery here which might be as reasonable to be done but never was attempted It is likewise Objected That there lies an Appeal from the Chancery there to the Lords here and it is true that some but very few such Appeals have been brought and these few only very lately and occasioned by the want of the Parliament Sitting in Ireland and passed sub Silentio without any opposition in that respect Another Objection is made from Poining's Law in the Tenth of H. Seventh St. 10. H. ● cap. 4. but that is nothing at all to this purpose for it concerns only the appointing a new Method and Form of passing of Acts of Parliament there that they must be transmitted and approved at the Council-Board in England but that alters nothing of their judicial power or capacity so long established and enjoyed by them Another Objection is made That Ireland would be independent of England and which is very undeserved if any body consider how unanimous and zealous the Protestants of Ireland have very lately and on all occasions appeared for the English Interest there to the loss of their Lives and all they had and how little able they are to support themselves without the Assistance and Protection of England And the weakness of the Objections appears yet the more for the same Argument may be made against their having any Parliament to sit in Ireland for if they be allowed to have right to a Parliament they must also be allowed the right of Parliaments which they have hitherto exercised and enjoyed For which Reasons 't is humbly hoped Your Lordships will not take any further Cognizance of the said Appeal James Sloane Fra. Annesley An Abstract of some of the Presidents in Ireland which were certified from thence by the Lords Justices and Council there to Your Lordships 8 H 6. M. 70. Prynn's Animad 313 314. THE Prior of Lanthony removed by Writ of Error a Judgment in the Kings-Bench in Ireland to the Parliament of Ireland which was affirmed there Afterwards the Prior

removed the Record into the Kings-Bench in England but the Chief Justice and the rest of the Judges being of Opinion that they could not reverse a Judgment given in the Parliament of Ireland or take conusance of any matters in their Parliament there the Prior petitioned the Parliament of England setting forth the said Proceedings and prayed Redress but the Parliament here did not think it conusable before them and therefore no Answer was ever given thereto or any Proceedings thereon Nota The Judges of the Kings-Bench in England were then of Opinion That the Parliament of Ireland had a good Judicature Rot. Hib. 26. H. 6. cap 34. In a Case between Chambers and the Barons of the Exchequer the Parliament there reversed a Judgment given in the Exchequer Rot. Parl. Hib. 27. H. 6. cap 16. In a Case between the Baron of Galtrim and the Earl of Shrewsbury on a Petition to Parliament it was ordered that a Stop should be put to the taking out of Executions on a Scire facias issued on a Recognizance in Chancery Rot Parl. Hib. 27. H 6. cap. 25. Parliament ordered on Petition That the Petitioner be quieted in the Possession of the Treasurership of Limerick pursuant to a Decree of Chancery he having been dispossessed by virtue of the King's Letters and Privy Seal out of England Nota This Record shews that the Parliament intermeddled in matters which concerned the Chancery and also the King in which he acquiesced Rot Parl. Hib. 7. Ed 4 c 47. Anne the Wife of Sir William Welles Knight and Richard his Son Executors of the said Sir William and Matthew Philips Judgment given by the Lords in this Cause 25 July 1634. It was in Parliament declared That an Adjournment of the House of Lords was necessary it being a Court of Law the highest in the Kingdom that sends Writs of Error to the Kings-Bench 20 Nov. 1634. The Lords of Ireland order that the Officers of their House should receive their Fees in Irish Money but in Cases of Bills or Suits commenced in the House between Party and Party the Clerk shall receive the same in English Money as in England 27 Feb. 16●0 An Impeachment brought up from the Commons to the Lords by Audley Mervin against Sir Richard Bolton Lord Chancellor and others 24 May 1641. Declaration and Protestation of the Lords and Commons of Ireland That the Court of Parliament in Ireland is the Supreme Court of Judicature to hear and determine all Civil and Criminal Causes whatsoever as in England 20 May 1661. Petition of Nicholas Darcy to the Lords in Ireland That the Lord Chief Justice should Seal a Writ of Error and give Copies of Records to the Petitioner and heard Council 15 June 1661. By the House of Lords of Ireland Ordered That the Church be immediately restored to all their Possessions 5 July 1661. Ordered That the Lord Chancellor do Seal a Writ of Error in the Case of the Lord Clancarty's Outlawry returnable in this House 27 July 1661. Lord Viscount Ranelagh's Petition and Appeal from the High Court of Chancery to be relieved against a Decree made there Anno 1658 at the Suit of Dame Catherine Bingham and John Paulet Gent. Upon hearing of the said Cause the said Decree was Reversed 2 June 1662. Ordered by the Lords House that the Bishop of Derry be put in Possession of Termonderry near London-Derry the said Bishop having been in Possession thereof in 1641. Nota This was part of the Land which is now in Dispute 24 June 1662. The Cause between Theophilus Lea and William Leslie concerning matter of Title not coming hither by way of Appeal from any other Court Ordered That the Cause be therefore dismissed from the House to the Common Law 20 Dec. 1662. Kean ó Hora Uxor against Robert Parkes Esq Defendant Parks obtained a Judgment in the King's-Bench against the Plaintiff which Judgment was removed by Writ of Error into the House of Lords upon which a Scire Facias issued to the said Parkes and the return thereupon made and a day appointed for Arguing the Errors 9 Feb. 1662. Ordered by the Lords That some of the Judges prepare a Draught for the House that no cause or matter in difference between Party and Party which may be determined in any of his Majesty's ordinary Courts of Justice or Equity shall be admitted to receive Hearing before the House except in case of Appeal Writ of Error or Matter of Priviledge 19 Mar. 1662. Petition and Appeal of Lord Viscount Ely of Loftus against a Judgment obtained against his Father Lord Chancellor Loftus at Council-Board before the then Lord Lieutenant and others and several other Proceedings in the Courts of Law there had upon the said Judgment and several Orders of the House thereupon 29 Octo. 1695. Appeal of the Earl of Meath and Cecilia Countess of Meath his Lady against the Lord Ward from a Decree made in the Chancery of the County-Palatine of Tipperary by which certain Lands were Decreed to the Lord Ward the Decree Reversed and the Possession of the said Lands restor'd to the said Earl 29 Octo. 1695. Appeal of Samuel Maynard against an Order conceived in the Chancery Court of the County Palatine of Tipperary directing an issue at Law on hearing the said Appeal was dismissed