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
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
Civil and Ecclesiastical State were setled there Regiae sublimatis authoritate Solely by the King's Authority and their own good Wills as the Irish Statute 11 Eliz. Cap. 1. expresses it What the Irish Statutes express I think hath no great Weight in this Debate the Question is by what Power the People of Ireland for so I will now call them threw off that Subjection they once owed to the Legislative Power of England If they think their bare Denial is enough to warrant them free from such a Subjection the People of England may expect the like on the same Argument if because they are not present at our Elections I will answer that in the following Discourse We proceed now to pag. 39. To see â—â— what farther Degrees the Government of Ireland grew up conformable to that of England which are your own Words you say that about the twenty third year of Henry II. which was within five years after his return from Ireland he created his younger Son John King of Ireland at a Parliament held at Oxford and from this you would infer Page 40. That by this Donation of the Kingdom of Ireland to King John Ireland was most eminently set apart again as a separate and distinct Kingdom by it self from the Kingdom of England but you do not set forth that Grant and our Statute-Books are not so old this had been necessary for many reasons you say Page 40. That by this Donation King John made divers Grants and Chartes to his Subjects of Ireland does this alone shew a Regal Authority and might it not have been done by a Lord-Deputy still subject to the Crown of England Pray let me ask you was he at his return to England which you say was a little after his first going over received here by his Father as a Brother-King and did he take Precedence of his elder Brother Richard 'T is much this young King had not punished his Subjects of Ireland for being angry at his deriding their long Beards at which you say they took such Offence that they departed in much Discontent I say 't is much he had not punished their Undutifulness but rather chose to come away in a Pet and thereby to abdicate his new Kingdom for you do not shew that he left the Administration of the Government with any one else All that can be said in his Defence is that he was young about Twelve Years old pag. 39 and perhaps the obstinate Humour which the Barons of England afterwards found in him might grow up with him and become an Infirmity of Age and during King John's being in England did the Kingdom of Ireland govern its self For if his Father King Henry the Second sent over any other to succeed him all your Argument is lost But after all I find his granting Charters is not of such moment as to prove him a King for this he did to the City of Bristol whilst he was Earl of Moreton which I believe was long after the time you mention and I find by the exemplification of that Charter that his Son King Henry the Third in his Inspeximus confirms it as granted by his Father King John when he was Earl of Moreton without mentioning that he was then also King of Ireland and Princes do not use to abate any thing of their Titles especially when they are of so great Importance as this No body doth believe that King John whilst Earl of Moreton had such a Royal Authority in Bristol as to discharge it from an obediential Subjection to the Legislative Power of England The Statute Primo G. M. Cap. 9. ss 2. saith Ireland is annexed and united to the Imperial Crown of England as well by the Laws of this Kingdom as those of Ireland and I am sure there is a great deal of difference between being part of the Imperial Crown of England as Wales is and a separate Kingdom as Scotland is I find likewise that Henry the Third never wrote himself more than Lord of Ireland and 't is strange if Ireland was established a separate Kingdom in John Earl of Moreton and his Heirs that the Title had not been continued in his Son and how comes it to pass that we have ever since been at the Charge of supporting that Kingdom with our Treasure without keeping a separate Account of our Expences laid out on it which doubtless we should have done had we thought it a separate Kingdom But to proceed on searching Sir Richard Baker's Chronicle I cannot find that he takes any Notice of King Henry IId's sending over his Son John about the Twenty Third Year of his Reign as you say Page 39. which 't is much he should omit seeing it was on so memorable an Occasion as his being made King of a separate Kingdom by his Father in a Parliament at Oxford but he saith that in the Thirty First Year of his Reign he sent his Son John over to Ireland to be Governour there and afterwards in the Reign of Richard I. Son to Henry II. and Brother to this John he speaking of the great Kindnesses shewed by the said King Richard I. to his Brother John hath these Words To whom he made appear how much the Bounty of a Brother was better than the Hardnesses of a Father and afterwards he names the several Earldoms which he conferred on him viz. Cornwall Dorset Somerset Nottingham Darby and Lancaster then treating of Affairs in England during the King's Absence on his Voyage to the Holy Land saith he left William Longshamp Bishop of Ely in chief Place of Authority at which his Brother was disgusted whom he calls there Duke John and in another Place he says that the King after his Return from the Holy Land took from him all the great Possessions he had given him and afterwards the said John submitted himself to the King his Brother Now does this agree with the Honour and Dignity of a King who had a separate Kingdom or were the Grants of those several Earldoms from his Brother which you see were liable to be taken away again at the King's Pleasure to be accounted a greater Largess than the Bounty of his Father if he had made him King of a separate Kingdom and setled it in Parliament as you affirm Besides if any such thing was done by Henry II. in the Twenty Third Year of his Reign it appears if Baker be in the right that that Grant was recalled for he saith plainly that he sent him over in his One and Thirtieth Year to be Governor of Ireland How indeed saith to be Lord of Ireland but neither of them mention any thing of what was done in the Parliament at Oxford Well suppose it to be Dominus Hiberniae on which Word you seem to build so much pag. 40 41. Is this Title any thing greater than Lord Lieutenant or Lord Justice which hath for ought I can perceive been used ever since Does a Title granted in a Patent from the King
Item We Will and Grant that no Licence or Priviledge to make Passage by English-men Irish-men or Welch-men of Wools c. out of the same Realm and Lands c. Cap. 10. Sect. 2. We Will and Establish that one Weight one Measure and one Yard be through all the Land c. Here Ireland is comprehended under these words throughout all the Land which I suppose will without Objection be admitted to be the Kingdom of England if Ireland is not comprehended under those general Words then Wales is not and then one Weight and Measure was appointed for England and another permitted to be in Wales but if Wales is comprehended under them then Ireland is also And this you may know by considering what Weights and Measures are settled in Ireland and when Cap. 11. Item We have Ordained and Established That all Merchants c. that do bring Wines c. to the Staples Cities c. within our said Realm and Lands Cap. 12. Item no Merchant c. shall carry out of our Realm of England Wools Leather c. Here Ireland is again comprehended under the general Words our Realm of England or else Wales is not and the purport of the Act shows that for can it be thought that the People of Wales and Ireland had Liberty to export Wools Leather c. into Foreign Parts when this was denied to the People of England Cap. 13. Item We Will and Grant That if any Merchant Privy or Stranger be Robbed of his Goods upon the Sea and the Goods so Robbed come into any Parts within our Realm or Lands Cap. 14. Item We have Ordained That all Merchants Privy or Strangers may safely carry and bring within our said Realm and Lands Plate of Silver c. and in the next Sect. Provided always that no Money have common course within our said Realm and Lands but the Money of Gold and Silver of our Coin So in Cap. 17. the Words Realm and Lands are thrice expressed as comprehending England Wales and Ireland By all which it appears to me That in those Days there was no thoughts of Ireland's being a separate Kingdom or making Laws for themselves any other than By-Laws But they were supposed to be part of the Kingdom of England and under the Jurisdiction of the Legislative Power thereof and yet this was long after the pretended Grant of Henry II. to his Son John to be King of Ireland as a separate Kingdom which does confirm me in what I have said before that what is now call'd the Parliament of Ireland was formerly no more than a Summoning the Great Men of the Kingdom together and commanding them to obey the Laws made in England as you have it in the Writ sent over by King Henry the Third to Richard du Burgh mentioned before which is transcribed by you P. 53. Coram eis publice legi faciatis c. The Parliament of England in those days was very careful of their Power and did not easily part with their Jurisdiction they presently put in their Claim so soon as the Kings of England got any footing either by Conquest or Submission In the Statutes made at Westminster 27 September the 11th of Edward III. Anno 1337. I find Laws made to bind Scotland cap. 1 2 4. are repealed so I cannot see their Contents But cap. 3. runs thus Item It is accorded and established That no Merchant c. shall bring c. into the said Lands of England Ireland Wales and Scotland within the King's Power And cap. 5. runs thus Item it is accorded That all the Clothworkers of strange Lands c. which will come into England Ireland Wales or Scotland I do not find any Acts of this nature made either before that time or after which put me upon perusing the Histories and Chronicles of England about that time How saith That Anno Regni 5 Ed. 3. 1331. Edward Baliol who was Son to John Baliol sometime King of Scotland was by the Assistance of the said King Edward crowned King of Scots but afterward he resigned it to the said King Edward of England and remained under his Protection many years after Baker saith That to hold a good Correspondence with the King of England hereafter he doth him homage for his Realm of Scotland And no doubt had Scotland still continued so the guilded flourishes of a separate Kingdom would not have tempted the Parliament of England to have parted with their Authority of making Laws to govern it and can it be thought they should so easily let Ireland slip it doth not appear so by any Act of their own and for the Acts of others they can be no Precedents against them But to proceed There are yet other Reasons why Ireland should be more bound by the Statute-Laws of England then Scotland Ireland hath been always accounted so much a part of the Imperial Crown of this Kingdom that on the late Revolution when the Crown of England was settled on the then Prince and Princess of Orange Stat. primo Guil. Mar. cap. 2. They are declared King and Queen of Ireland as well as England and by that Recognition they had been so though the Parliament of Ireland had opposed it whereas the Case was not the same with Scotland The Rights and Priviledges of the People of Ireland were also settled by the same Statute equal to those of the People of England But the Rights and Priviledges of the People of Scotland were not Nor was this Recognition made in their Names they took their own time to do it and to settle the Rights and Priviledges of their own Kingdom as they pleased being a separate Kingdom without dependance on the Kingdom of England I wonder you hang so much in this Paragraph on Ireland's being a separate Kingdom in the Person of King John no Man of Sence who had examined that matter would make any dependance thereon and such I take you to be therefore it looks as if you had a mind to betray and give up the Cause did I not think you a Gentleman of greater sincerity you had certainly found a better Argument in your original Contract could you have made it out Page 85. You proceed to take into consideration such English Statutes as particularly name Ireland and these you divide into Ancient Precedents and Modern Instances and conclude That if the former do not make against you the latter are only Usurpations made upon you I think this fully answer'd before But I will take your own way and follow the Thred of your own Arguments though I think you spin it too long The Ancient Precedents of English Statutes designing to bind Ireland you say are first Statutum Hiberniae 14 Hen. 3. Secondly Ordinatio pro Statu Hiberniae 17 Edw. 1. Thirdly An Act concerning Staples 2 Hen. 6. pag. 85 86. And are these all What think you of the Statute of Merchants made at Westminster 13 Edw. 1. Anno 1258 wherein are these words Sect.
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
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
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.