Mankind and on whatsoever Ground any one Nation can Challenge it to themselves on the same Reason may the Rest of Adam's Children Expect it If what I Offer herein seems to carry any Weight in relation to my own Poor Country I shall be abundantly happy in the Attempt But if after all the Great Council of England Resolve the contrary 〈◊〉 shall then believe my self to be â—…n an Error and with the lowest Submission ask Pardon for my Assurance However I humbly presume I shall not be hardly Censur'd by them for offering to lay before them a fair State of our Case by such Information as I can procure especially when at the same time I declare my Intention of a Submissive Acquiescence in whatever they Resolve for or against what I Offer The Subject therefore of our present Disquisition shall be How far the Parliament of England may think it Reasonable to intermeddle with the Affairs of Ireland and Bind us up by Laws made in their House And seeing the Right which England may pretend to for Binding us by their Acts of Parliament can be founded only on the Imaginary Title of Conquest or Purchase or on Precedents and Matters of Record We shall Enquire into the following Particulars 1. First How Ireland became a Kingdom Annex'd to the Crown of England And here we shall at large give a faithful Narrative of the First Expedition of the Britains into this Country and King Henry the Second's Arrival here such as our best Historians give us 2. Secondly We shall Enquire Whether this Expedition and the English Settlement that afterwards follow'd thereon can properly be call'd a Conquest Or whether any Victories obtain'd by the English in any succeeding Ages in this Kingdom upon any Rebellion may be call'd a Conquest thereof 3. Thirdly Granting that it were a Conquest we shall Enquire what Title a Conquest gives 4. Fourthly We shall Enquire what Concessions have been from time to time made to Ireland to take off what even the most Rigorous Assertors of a Conquerour's Title do pretend to And herein we shall shew by what Degrees the English Form of Government and the English Statute-Laws came to be received among us And this shall appear to be wholly by the Consent of the People and Parliament of Ireland 5. Fifthly We shall Enquire into the Precedents and Opinions of the Learned in the Laws relating to this Matter with Observations thereon 6. Sixthly We shall Consider the Reasons and Arguments that may be farther Offered on one side and t'other and shall Draw some General Conclusions from the Whole As to the First We shall find the History of the First Expedition of the English into Ireland to be briefly thus In the Reign of King Henry the Second Dermot Fitzmurchard commonly called Mac-Morrogh Prince of Leinster who was a Man Cruel and Oppressive after many Battels with other Princes of Ireland and being Beaten and put to Flight by them Apply'd for Relief to King Henry the Second who was then busied in Aquitain the King was not then in such Circumstances as to afford him much Help However thus much he did for him By Letters Patents he granted License to all his Subjects throughout his Dominions to Assist the said Prince to Recover his Dominions These Letters Patents are to be seen in Giraldus Cambrensis who was Historiographer and Secretary to King Hen. II. and Accompanied him in his Expedition into Ireland and from him it is that we have this Relation The Irish Prince brought these Letters into England and caused them to be Read in the Audience of many People Beating up as it were for Voluntiers and free Adventurers into Ireland At length Richard Earl of Strigul now Chepstow in Monmouthshire Son of Earl Gilbert call'd Strongbow Agreed with him to Assist him in the Recovery of his Country on Condition that Dermot should give him his Eldest Daughter in Marriage and his Kingdom of Leinster after his Death About the same time Robert Fitz-Stephen Governour of Aberlefie in Wales Agreed likewise with Dermot to help him on Condition that he would grant to him and Maurice Fitzgerald in Fee the City of Wexford with two Cantreds or Hundreds of Land near adjoyning These Adventurers afterwards went over and were successful in Treating with the Irish and Taking Wexford Waterford Dublin and other Places Whereupon Earl Richard Strongbow married Dermot's Daughter and according to Compact succeeded him in his Kingdom A little after the Descent of these Adventurers King Henry II. himself went into Ireland with an Army in November 1172. and finding that his Subjects of England had made a very good hand of their Expedition he obtain'd from Earl Richard Strongbow a Surrender of Dublin with the Cantreds adjoyning and all the Maritine Towns and Castles But Strongbow and his Heirs were to Enjoy the Residue of Dermot's Principality King Hen. II. Landed at Waterford from Milford in Pembrookshire and staying there some few days says Giraldus Cambrensis Rex Corcagiensis Dormitius advenit ei tam Subjectionis vinculo quam fidelitatis Sacramento Regi Anglorum se sponte submisit He freely swore Fealty and Subjection to the King of England From thence he went to Lismore and thence to Cashel where Dunaldus King of Lymerick se quoque fidelem Regi exhibuit The like did all the Nobility and Princes in the South of Ireland Afterwards he marched to Dublin and there the Princes of the Adjacent Countries came to him sub Fidelitatis Subjectionis obtentu a Rege Pacem impetrabant Thus Cambrensis in his Hibernia Expugnata and there he mentions the several Princes that came in vizt Macshaghlin King of Ophaly O Carrol King of Uriel now Lowth O Rourk King of Meath Rotherick O Connor King of Connaught and Monarch as it were of the whole Island with divers others qui firmissimis fidelitatis subjectionis vinculis Domino Regi innodarunt in singulari Rotherico Conactiae Principe tanquam Insulae Monarchâ subditi redduntur universi nec alicujus fere in Insula vel nominis vel ominis erat qui Regiae Majestati Debitam Domino Reverentiam non exhiberet The same Relation we have from Roger Hoveden Annal. parsposter fol. 301. About the Kalends of November 1172. saith he King Henry II. of England took Shipping for Ireland at Milford and Landed at Waterford ibi venerunt ad eum Rex Corcagiensis Rex de Lymerick Rex de Oxenie Rex Midiae fere omnes Hiberniae Potentes And a little afterwards in the same place speaking of King Henry the Second's being at Waterford ibidem venerunt ad Regem Angliae omnes Archiepiscopi Episcopi Abbates totius Hiberniae receperunt eum in Regem Dominum Hiberniae jurantes ei heredibus suis Fidelitatem Regnandi super eos Potestatem in perpetuum inde Dederunt ei Chartas suas Exemplo autem Clericorum predicti Reges Principes Hiberniae
receperunt simili modo Henricum Regem Angliae in Dominum Regem Hiberniae sui devenerunt ei Heredibus suis Fidelitatem contra omnes Iuraverunt Matthew Paris likewise in his History speaking of King Hen. II. being in Ireland saith Archiepiscopi Episcopi ipsum in Regem Dominum receperunt ei Fidelitatem Homagium Iuraverunt Iohn Brampton Abbot of Iornaâ—… in his Historia Iornalensi pag. 1070. speaking of Hen. II. hath these words Recepit ab unoquoque Archiepiscopo Episcopo Hiberniae Literas cum Sigillis suis in modum Chartae pendentibus Regnum Hiberniae sibi Haeredibus suis Confirmantes Testimonium perhibentes ipsos in Hibernia eum Heredes suos sibi in Reges Dominos in perpetuum Constituisse 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 Ordain'd him and his Heirs to be their King and Lord of Ireland for ever After which he return'd into England in April following vizt April 1173. I come now to Enquire into our Second Particular proposed Viz. Whether Ireland might be properly said to be Conquer'd by King Henry the Second or by any other Prince in any succeeding Rebellion And here we are to understand by Conquest an Acquisition of a Kingdom by Force of Arms to which Force likewise has been Opposed if we are to understand Conquest in any other sense I see not of what Use it can be made against Irelands being a Free Country I know Conquestus signifies a Peaceable Acquisition as well as an Hostile Subjugating of an Enemy Vid. Spelman's Glos. And in this sense William the First is call'd the Conquerour and many of our Kings have used the Epocha post Conquestum And so likewise Henry the Second stiled himself Conquestor Dominus Hiberniae but that His Conquest was no violent Subjugation of this Kingdom is manifest from what foregoes For here we have an Intire and Voluntary Submission of all the Ecclesiastical and Civil States of Ireland to King Henry II. without the least Hostile Stroke on any side We hear not in any of the Chronicles of any Violence on either Part all was Transacted with the greatest Quiet Tranquility and Freedom imaginable I doubt not but the Barbarous People of the Island at that time were struck with Fear and Terror of King Hen. Il's Powerful Force which he brought with him but still their Easie and Voluntary Submissions Exempts them from the Consequents of an Hostile Conquest whatever they are where there is no Opposition such a Conquest can take no place I have before taken Notice of Henry the Il's using the Stile of Conquestor Hiberniae I presume no Argument can be drawn from hence for Ireland's being a Conquer'd Country for we find that many of the Kings of England have used the Aera of post Conquestum Edward the Third was the first that used it in England and we frequently meet with Henricus post Conquestum Quartus c. as taking the Norman Invasion of William the First for a Conquest But I believe the People of England would take it very ill to be thought a Conquer'd Nation in the sense that some impose it on Ireland And yet we find the same Reason in one Case as in t'other if the Argument from the King's Stile of Conquestor prevail Nay England may be said much more properly to be Conquer'd by William the First than Ireland by Henry the Second For we all know with what Violence and Opposition from Harrold K. William obtain'd the Kingdom after a Bloody Battel nigh Hastings Whereas Henry the Second receiv'd not the least Opposition in Ireland all came in Peaceably and had large Concessions made them of the like Laws and Liberties with the People of England which they gladly Accepted as we shall see hereafter But I am fully satisfy'd that neither King William the First in his Acquisition of England or Henry II. in his Acquest of Ireland obtain'd the least Title to what some would give to Conquerours Tho' for my own part were they Conquerours in a sense never so strict I should enlarge their Prerogative very little or nothing thereby as shall appear more fully in the Sequel of this Discourse Another Argument for Henry the Second's Hostile Conquest of Ireland is taken from the Opposition which the Natives of Ireland gave to the first Adventurers Fitz-Stephens Fitzgerald and Earl Strongbow and the Battles they sought in assisting Mac-Morogb Prince of Leinster in the Recovery of his Principality 'T is certain there were some Conflicts between them and the Irish in which the Latter were constantly beaten but certainly the Conquests obtain'd by those Adventurers who came over only by the King's License and Permission and not at all by his particular Command as is manifest from the words of the Letters Patents of License recited by Giraldus Cambrensis Hib. Expug pag. 760. Edit Francof 1603. Angl. Norm Hiber Camd. can never be call'd the Conquest of Henry the Second especially considering that Henry the Second himself does not appear to have any Design of Coming into Ireland or Obtaining the Dominion thereof when he gave to his Subjects of England this License of Assisting Mac-Morrogh But I conceive rather the contrary appears by the Stipulations between Mac-Morrogh and the Adventurers and especially between him and Strongbow who was to succeed him in his Principality From what foregoes I presume it Appears that Ireland cannot properly be said so to be Conquer'd by Henry the Second as to give the Parliament of England any Jurisdiction over us it will much more easily Appear that the English Victories in any succeeding Rebellions in that Kingdom give no Pretence to a Conquest If every Suppression of a Rebellion may be call'd a Conquest I know not what Country will be excepted The Rebellions in England have been frequent in the Contests between the Houses of York and Lancaster one side or other must needs be Rebellious I am sure the Commotions in King Charles the First 's time are stiled so by most Historians This Pretence therefore of Conquest from Rebellions has so little Colour in it that I shall not insist longer on it I know Conquest is an hateful word to English Ears and we have lately seen a Book undergo a seuere Censure for offering to broach the Doctrine of Conquest in the Free Kingdom of England But to take off all Pretence from this Title by Conquest
by Advice of all his Faithful Counsellors in England to gratify the Irish says Pryn for their eminent Loyalty to his Father and Him he granted them out of his Special Grace that they and their Heirs for ever should enjoy the Liberties granted by his Father and Himself to the Realm of England which he Reduced into Writing and sent Seal'd thither under the Seal of the Popes Legat and W. Earl Marshal his Governour because he had then no Seal of his own This as I conceive Refers to the foremention'd Magna Charta Hiberniae The Record as Recited by Mr. Pryn here follows Rex Archiepiscopis Episcopis Abbatibus Comitibus Baronibus Militibus Libere Tenentibus omnibus Fidelibus suis per Hiberniam Constitutis Salutem Fidelitatem vestram in Domino Commendantes quam Domino Patri nostro semper Exhibuistis nobis estis diebus nostris Exhibituri 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 guadeatis vos vestri Haeredes in perpetuum Quas Distincte in Scriptum Reductas de Communi Consilio omnium Fidelium 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 Consilio proprio Sigillo Signaturi Teste apud Glouc. 6 Februar Here we have a free Grant of all the Liberties of England to the People of Ireland But we know the Liberties of Englishmen are Founded on that Universal Law of Nature that ought to prevail throughout the whole World of being Govern'd only by such Laws to which they give their own Consent by their Representatives in Parliament And here before I proceed farther I shall take Notice That in the late Raised Controversie Whether the House of Commons were an Essential part of Parliament before the 49th year of Henry the Third The Learned Mr. Petyt Keeper of the Records in the Tower in his Book on that Subject pag. 71. Deduces his 9th Argument From the Comparison of the Antient Generale Concilium or Parliament of Ireland instanced An. 38 Hen. III. with the Parliament in England wherein the Citizens and Burgesses were which was Eleven years before the pretended beginning of the Commons in England For thus we find it in that Author As great a Right and Privilege surely was and ought to be allow'd to the English Subjects as to the Irish before the 49th of Hen. III. And if that be admitted and that their the Irish Commune Concilium or Parliament had its Platform from ours the English as I think will not be Deny'd by any that have consider'd the History and Records touching that Land Ireland we shall find the ensuing Records Ann. 38 Hen. III. clearly evince that the Citizens and Burgesses were then a part of their the Irish Great Council or Parliament That King being in partibus Transmarinis and the Queen being left Regent she sends Writs or a Letter in the Kings Name directed Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus Militibus Liberis Hominibus Civibus Burgensibus Terrae suae Hiberniae telling them that Mittimus Fratrem Nicholaum de Sancto Neoto Fratrem Hospitii Sancti Iohannis Ierusalem in Anglia ad partes Hiberniae ad exponendum vobis together with I. Fitz-Geoffery the Kings Justice the State of his Land of Vascony endanger'd by the Hostile Invasion of the King of Castile qui nullo Iure sed potentia sua Confisus Terram nostram Vasconiae per ipsius Fortitudinem a manibus nostris Auferre a Dominio Regni Angliae segregare Proponit And therefore universitatem Vestram Quanta possumus Affectione Rogantes quatenus noâ—… jura nostra totaliter indefensâ—… non deserentes nobis in tanto periculo quantumcunque poteritis dâ—… Gente Pecunia subveniatis which would turn to their Everlasting Honour concluding His nostris Augustiis taliter Compâ—…tientes quod nos Heraedes nostri vobis Haeredibus vestris sumus non immerito Obligati Teste Regina R. Comite Cornubiae apud Windesor 17 die Februar Per Reginam Thus far Mr. Petyt Here we have a Letter from the Queen Regent to the Parliament in Ireland in an humble manner beseeching them for an Aid of Men and Money against the King of Castiles Hostile Invasion of Gascony from whence we may perceive that in those days no more than at present Men and Money could not be Rais'd but by Consent of Parliament I have been the more particular in Transcribing this Passage out of Mr. Petyt to shew that we have as Antient and Express an Authority for our present Constitution of Parliaments in Ireland as can be shewn in England And I believe it will not be thought Adviseable in these latter Days to break in upon Old Settled Constitutions No one knows how fatal the Consequents of that may be To return therefore where we Digress'd Henry the Third about the Twelfth year of his Reign did specially Impower Richard de Burgh then Iustice of Ireland at a certain day and place to summon all the Archbishops Bishops Abbots Priors Earls Barons Knights Freeholders and Sheriffs of each County and before them to cause to be Read the Charter of his Father King Iohn whereunto his Seal was Appendant whereby he had granted unto them the Laws and Customs of England and unto which they swore Obedience And that he should cause the same Laws to be observed and Proclaimed in the several Counties of Ireland that so none presume to do contrary to the Kings Command The Record I have taken out of Mr. a Pryn in these words Rex Dilecto Fideli suo Richardo de Burgo Justie ' suo Hibern Salutem Mandamus vobis firmiter praecipientes quatenus certo die Loco faciatis venire coram vobis Archiepiscopos Episcopos Abbates Priores Comites Barones Milites libere Tenentes Ballivos singulorum Comitatum coram eis Publice legi faciatis Chartam Domini J. Regis Patris nostri cui Sigillum suum appensum est quam fieri fecit jurari a Magnatibus Hibern de Legibus Consuetudinis Angliae Observandis in Hibernia Et praecipiatis eis ex parte nostra quod Leges illas Consuctudines in Charta praedicta contentas de caetero firmiter teneant observent hoc idem per singulos Commitatus Hiberniae clamari faciatis teneri prohibentes firmiter ex parte nostra super foris facturam nostram nequis contra hoc Mandatum nostrum venire praesumat c. Teste Me ipso Apud Westm ' 8 die Maii An. Reg. nostri 12. By what foregoes I presume it plainly appears that by three several Establishments
a Tenth or Fifteenth be granted by Parliament in England that shall not Bind Ireland although the King should send the same Statute into Ireland under his Great Seal Except they in Ireland will in their Parliament Approve it Because they have not any Commandment by Writ to come to the Parliament of England And this was not Denied by Markham Yelverton or Ascough The Merchants of Waterford's Case which I have observed before pag. 90. as Reported in the Year Book of the 2d of Richard the 3d. fol. 11 12 is notorious on our behalf but needs not be here repeated The Case of the Prior of Lanthony in Wales mentioned by Mr. Pryn against the 4th Inst. ch 76. p. 313. is usually cited against us But I conceive 't is so far from proving this that 't is very much in our Behalf The Case was briefly thus The Prior of Lanthony brought an Action in the Com. Pleas of Ireland against the of Prior Mollingar for an Arrear of an Annuity and Judgment went against the Prior of Mollingar hereon the Prior of Mollingar brought a Writ of Error in the King's Bench of Ireland and the Judgment was affirmed Then the Prior of Mollingar Appeal'd to the Parliament in Ireland held 5 Hen. 6. before Iames Butler Earl of Ormond and the Parliament Revers'd both Judgments The Prior of Lanthony removed all into the King's Bench in England but the King's Bench refused to intermeddle as having no Power over what had pass'd in the Parliament of Ireland Hereupon the Prior of Lanthony Appeal'd to the Parliament of England And it does not appear by the Parliament Roll that any thing was done on this Appeal all that is Entred being only the Petition it self at the end of the Roll. Vid. Pryn against the 4th Instit. chap. 76. p. 313. Now whether this be a Precedent proving the Subordination of our Irish Parliament to that of England I leave the Reader to judge To me it seems the clear contrary For first we may observe the King's Bench in England absolutely disclaiming any Cognisance of what had passed in the Parliament of Ireland And next we may observe That nothing at all was done therein upon the Appeal to the Parliament of England Certainly if the Parliament of England had thought themselves to have a Right to Enquire into this Matter they had so done one way or t'other and not left the Matter Undetermin'd It has ever been acknowledged that the Kingdom of Ireland is inseparably annex'd to the Imperial Crown of England The Obligation that our Legislature lies under by Poyning's Act 10 H. 7. c. 4. makes this Tye between the two Kingdoms indissoluble And we must ever own it our Happiness to be thus Annex'd to England And that the Kings and Queens of England are by undoubted Right ipso facto Kings and Queens of Ireland And from hence we may reasonably conclude that if any Acts of Parliament made in England should be of force in Ireland before they are Received there in Parliament they should be more especially such Acts as relate to the Succession and Settlement of the Crown and Recognition of the Kings Title thereto and the Power and Iurisdiction of the King And yet we find in the Irish Statutes 28 Hen. VIII c. 2. An Act for the Succession of the King and Queen Ann and another Chap. 5. declaring the King to be Supream Head of the Church of Ireland both which Acts had formerly pass'd in the Parliament of England So likewise we find amongst the Irish Statutes Acts of Recognition of the Kings Title to Ireland in the Reigns of Henry the Eighth Queen Elizabeth King Iames King Charles the Second King William and Queen Mary By which it appears that Ireland tho' Annex'd to the Crown of England has always been look'd upon to be a Kingdom Compleat within it self and to have all Jurisdiction to an Absolute Kingdom belonging and Subordinate to no Legislative Authority on Earth Tho' 't is to be Noted these English Acts relating to the Succession and Recognition of the Kings Title do particularly Name Ireland As the Civil State of Ireland is thus Absolute within it self so likewise is our State Ecclesiastical This is manifest by the Canons and Constitutions and even by the Articles of the Church of Ireland which differ in some things from those of the Church of England And in all the Charters and Grant of Liberties and Immunities to Ireland we still find this That Holy Church shall be Free c. I would fain know what is meant here by the word Free Certainly if our Church be Free and Absolute within it self our State must be so likewise for how our Civil and Ecclesiastical Government is now interwoven every body knows But I will not enlarge on this head it suffices only to hint it I shall detain my self to our Civil Government Another Argument against the Parliament of England's Jurisdiction over Ireland I take from a Record in Reyley's Placita Parliamentaria pag. 569. to this effect In the 14th of Edward the Second the King sent his Letters Patents to the Lord Justice of Ireland leting him know That he had been moved by his Parliament at Westminster that he would give Order that the Irish Natives of Ireland might enjoy the Laws of England concerning Life and Member in as large and ample manner as the English of Ireland enjoy'd the same This therefore the King gives in Commandment and orders accordingly by these his Letters Patents From hence I say we may gather That the Parliament of England did not then take upon them to have any Iurisdiction in Ireland for then they would have made a Law for Ireland to this Effect but instead thereof they Apply to the King that he would interpose his Commands and give Directions that this great Branch of the Common Law of England should be put in Execution in Ireland indifferently to all the Kings Subjects there pursuant to the Original Compact made with them on their first Submission to the Crown of England Let us now consider the great Objection drawn from a Writ of Error 's lying from the Kings Bench of England on a Judgment given in the Kings Bench in Ireland which proves as 't is insisted on that there is a Subordination of Ireland to England and that if an Inferiour Court of Judicature in England can thus take cognizance of and over-rule the Proceedings in the like Court of Ireland it will follow that the Supream Court of Parliament in England may do the same in relation to the Proceedings of the Court of Parliament in Ireland It must be confess'd that this has been the constant Practice and it seems to be the great thing that induced my Lord Cook to believe that an Act of Parliament in England and mentioning or Including Ireland should Bind here The Subordination of Ireland to England he seems to infer from the Subordination of the Kings