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
due time to settle the other Constitutions agreable to the Model of England If therefore England had then Sheriffs we need not wonder to find them named in the Irish Modus tho they were not as yet establish'd amongst us for they were designed to be appointed soon after and before the Modus could be put regularly in execution and accordingly we find them establish'd in some Counties of Ireland in King Iohns Time This Irish Modus is said to have been in the Custody of Sir Christopher Preston of Clane in Ireland An. 6. Hen. 4. and by Sir Iohn Talboi Lord Lieutenant of Ireland under King Hen. 4. It was Exemplified by Inspeximus under the great Seal of Ireland and the Exemplification was sometimes in the Hands of Mr. Hackwel of Lincolns Inn and by him was Communicated to Mr. Selden The Tenor of which Exemplification runs thus Henricus Dei Gratia Rex Angliae Franciae Dominus Hiberniae omnibus ad quos presentes Literae pervenerint salutem Inspeximus Tenorem Diversorum Articulorum in quodam Rotulo Pergameneo Scriptorum cum Christophero Preston Milite Tempore Arrestationis suae apud Villam de Clare per Deputatum Dilecti Fidelis nostri Iohannes Talbot de Halomshire Chivaler locum nostrum Tenentis Terrae nostrae Hiberniae nuper factae inventorum ac coram nobis Concilio nostro in eadem terrae nostra apud Villam de Trim. Nono die Ianuarii ultimo praeteriti in haec verba Modus Tenendi Parliamentâ—… Henricus Rex Angliae Conquestor Dominus Hibernia Mittit have formam Archiepiscopis c. and so as before Et omnibus Fidelibus suis Terrae Hiberniae Tenendi Parliamentum Imprimis Summonitio c. and then follows the Modus agreeable in most things with that of England only fitted to Ireland Then the Exemplification concludes Nos autem tenores Articulorum praedictorum de Assensu praefati Locum tenentis Concilii praedicti tenore praesentium duximus Exemplificandum has Literas nostras fieri fecimus Patentes Teste Praefato Locum nostrum tenente apud Trim. 12 diae Ianuarii Anno Regni nostri sexto Per ipsum Locum tenentem Concilium Now we can hardly think it credible says the Bishop of Meath that an Exemplification could have been made so solemnly of it by King Henry the Fourth and that it should refer to a Modus transmitted into Ireland by King Henry II. and Affirm that it was produced before the Lord Lieutenant and Council at Trym if no such thing had been Done This were to call in question the Truth of all former Records and Transactions and make the Exemplification contain an Egregious Falshood in the body of it The Reverend Bishop of Meath in his fore-cited Preface does believe that he had obtain'd the very Original Record said by my Lord Cook to have been in the Hands of Sir Christopher Preston It came to that Learned Prelates Hands amongst other Papers and Manuscripts of Sir William Domviles late Attorney General in this Kingdom who in his Life-time upon an occasional Discourse with the Bishop concerning It told him that this Record was bestow'd on him Sir W. Domvile by Sir Iames Cuffe late Deputy Vice-Treasurer of Ireland that Sir Iames found it among the Papers of Sir Francis Aungier Master of the Rolls in this Kingdom and the present Earl of Longford Grandson to the said Sir Francis Aungier told the Bishop that his said Grandfather had it out of the Treasury of Waterford Whilst I write this I have this very Record now before me from the Hands of the said Bishop of Meath's Son my Nephew Samuel Dopping and I must confess it has a Venerable Antient Appearance but whether it be the True Original Record I leave on the Arguments produced for its Credit by the said Bishop This I am sure of that whether this be the very Record Transmitted hither by King Henry the Second or not yet 't is most certain from the Unanimous Concessions of all the fore-mentioned Antiquaries Cook Selden Pryn c. That we have had Parliaments in Ireland very soon after the Invasion of Henry II. For Pryn confesses that King Hen. II. after his Conquest of Ireland and the General Voluntary Submission Homages and Fealties of most of the Irish Kings Prelates Nobles Cities and People to him as to their Soveraign Lord and King Anno 1170 it should be 1172. held therein a General Council of the Clergy at Cashal wherein he Rectify'd many Abuses in the Church and Establish'd sundry Eclesiastical Laws agreeable to those in the Church of England Ecclesiae illius statum ad Anglicanae Ecclesiae formam Redigere Modis omnibus elaborando To which the Irish Clergy promis'd Conformity and to observe them for time to come as Giraldus Cambrensis who was then in Ireland and other Histoans relate Et ut in singulis Observatio similis Regnum Colligaret utrumque that is England and Ireland passim omnes unanimi voluntate communi Assensu Pari desiderio Regis imperio se subjiciunt omnibus igitur hoc modo Consummatis in Concilio habito apud Lismore Leges Angliae ab omnibus sunt gratantur receptae juratoriâ cautione praestitâ Confirmatae says Math. Paris Can any Concession in the World be more plain and free than this We have heard of late much Talk in England of an Original Compact between the King and People of England I am sure 't is not possible to shew a more fair Original Compact between a King and People than this between Henry the Second and the People of Ireland That they should Enjoy the like Liberties and Immunities and be Govern'd by the same Mild Laws both Civil and Ecclesiastical as the People of England From all which It is manifest that there were no Laws Imposed on the People of Ireland by any Authority of the Parliament of England nor any Laws introduced into that Kingdom by Henry the Second but by the Consent and Allowance of the People of Ireland For both the Civil and Ecclesiastical State were settled there Regiae sublimitatis Authoritate solely by the Kings Authority and their own good Wills as the Irist Statute 11 Eliz. C. 1. expresses it And not only the Laws of England but the manner of Holding Parliaments in Ireland to make Laws oâ—… their own which is the Foundatioâ—… and Bulwark of the Peoples Liberties and Properties was Directeâ—… and Established there by Henry the Second as if he were Resolveâ—… that no other Person or Persons should be the Founders of the Government of Ireland but himself and the Consent of the People who submitted themselves to him against all Persons whatsoever Let us now see by what farther Degrees the Government of Ireland grew up Conformable to that of England About the Twenty-third year of Henry the Second which was within Five years after his Return from Ireland he created his younger Son Iohn King of Ireland at a
Parliament held at Oxford Soon after King Iohn being then about Twelve Years of Age came into Ireland from Milford to Waterford as his Father had formerly done The Irish Nobility and Gentry immediately repaired to him but being Received by him and his Retinue with some Scorn and Derision by reason of their long rude Beards quas more Patrio grandes habebant prolixas says Giraldus Cambrensis Hib. Expug Cap. 35. they took such Offence thereat that they departed in much Discontent which was the occasion of the young Kings staying so short a time in Ireland as he did this his first time of being here And here before we proceed any farther we shall observe That by this Donation of the Kingdom of Ireland to King Iohn Ireland was most eminently set apart again as a Separate and Distinct Kingdom by it self from the Kingdom of England and did so continue until the Kingdom of England Descended and came unto King Iohn after the Death of his Brother Richard the First King of England which was about Twenty two years after his being made King of Ireland during which space of Twenty two years both whilst his Father Henry the Second and his Brother Richard the First were living and Reigning King Iohn made divers Grants and Charters to his Subjects of Ireland which are yet in being in this Kingdom wherein he stiles himself Dominus Hiberniae the constant Stile till Henry the Eighth's time and in others Dominus Hiberniae Comes Meritoniae By which Charters both the City of Dublin and divers other Corporations enjoy many Priviledges and Franchises to this day But after the said Grant of the Kingdom of Ireland to King Iohn neither his Father Henry II. nor his Brother King Richard I. Kings of England ever stiled themselves during their Lives King or Lord of Ireland for the Dominion and Regality of Ireland was wholly and separately vested in K. Iohn being absolutely Granted unto him without any Reservation And he being Created King in the Parliament at Oxford under the Stile and Title of Lord of Ireland Enjoy'd all manner of Kingly Iurisdiction Preheminence and Authority Royal belonging unto the Imperial State and Majesty of a King as are the Express words of the Irish Statute 33 Hen. VIII c. 1. by which Statute the Stile of Dominus was changed to that of Rex Hiberniae Let us then suppose that Richard the First King Iohn's Elder Brother had not died without Issue but that his Progeny had sat on the Throne of England in a Continued Succession to this Day Let us suppose likewise the same of King Iohn's Progeny in relation to the Throne of Ireland where then had been the Subordination of Ireland to the Parliament or even to the King of England Certainly no such thing could have been then pretended Therefore if any such Subordination there be it must arise from something that followed after the Descent of England to King Iohn for by that Descent England might as properly be Subordinate to Ireland as the converse Ireland being vested in the Royal Person of King Iohn Two and Twenty years before his Accession to the Crown of England and being a more Ancient Kingdom than the Kingdom of England As the English Orators in the Council of Constance An. 1417 confess'd and alledged as an Argument in the Contest between Henry the Fifth's Legates and those of Charles the Sixth King of France for Precedence Satis Constat say they secundum Albertum Magnum Bartholomeum de Proprietatibus Rerum quod toto Mundo in tres partes Diviso scilicet in Europam Asiam Africam for America was not then Discovered Europa in quatuor Dividitur Regna scilicet Primum Romanum Secundum Constantinopolitanum Tertium Regnum Hiberniae quod jam translatum est in Anglos Quartum Regnum Hispaniae Ex quo patet quod Rex Angliae Regnum suum sunt de Eminentioribus Antiquioribus Regibus Regnis totius Europae The Antiquity and Precedence of the King of England was allo'wd him wholly on the Account of his Kingdom of Ireland Perhaps it will be said That this Subordination of the Kingdom of Ireland to the Kingdom of England proceeds from Ireland's being Annex'd to and as it were united with the Imperial Crown of England by several Acts of Parliament both in England and Ireland since King Iohns time But how farr this Operates I shall Enquire more fully hereafter I shall only at present Observe that I conceive little more is Effected by these Statutes Than that Ireland shall not be Alien'd or Separated from the King of England who cannot hereby dispose of it otherwise than in Legal Succession along with England and that whoever is King of England is ipso facto King of Ireland and the Subjects of Ireland are oblig'd to Obey him as their Liege Lord. To proceed therefore After both Crowns were united on the Death of Richard the First without Issue in the Royal Person of King Iohn He about the Twelfth Year of his Reign of England went again into Ireland viz. the Twenty Eight day of Iune 1210. and Math. Paris tells us pag. 220. Cum Venisset ad Dublinensem Civitatem Occurrerunt ei ibidem plus quam 20 Reguli illius Regionis qui omnes Timore maximo preterriti homagium ei Fidelitatem fecerunt Fecit quoque Rex ibidem Construere Leges Consuetudines Anglicanas ponens Vicecomites aliosque Ministros qui populum Regni illius juxta Leges Anglicanas Judicarent His Son King Henry the Third came to the Crown the Nineteenth of October 1216. and in November following he Granted to Ireland a Magna Charta Dated at Bristol 12 November the First Year of his Reign 'T is Prefaced that for the Honour of God and Advancement of Holy Church by the Advice of his Council of England whose names are particularly recited He makes the following Grant to Ireland And then goes on Exactly Agreeable to the Magna Charta which he granted to England only in ours we have Civitas Dublin Avenliffee instead of Civitas London and Thamesis with other Alterations of the like kind where Needful But ours is Eight years older than that which he granted to England it not being till the Ninth Year of his Reign and ours is the First Year This Magna Charta of Ireland Concludes thus Quia vero sigillum nondum Habuimus presentem Cartam Sigillis Venerabilis Patris nostri Domini Gualt Apost Sedis Legati Willelmi Mar eschalli Comitis Pembrooke Rectoris nostri Regni nostri secimus Sigillari Testibus omnibus praenominatis alijs Multis Dâ—…t per Manus Praedictorum Domini Legati Willelmi Marescalli Apud Bristol Duodecimo die Novembr Regni nostri Anno Primo An Antient Coppy of this Magna Charta of Ireland is to be found in the Red Book of the Exchequer Dublin In February following in the First Year like wise of his Reign
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
under the three first Kings of Ireland of the Norman Race the Laws and Liberties of the People of England were granted to the People of Ireland And that neither of these three Kings Established those Laws in Ireland by any Power of the Parliament of England but by the free Consent Allowance and Acceptance of the People of Ireland Hen. II. first introduced the Laws of England into Ireland in a Publick Assembly of the Irish at Lismore and Allowed them the Freedom of Parliaments to be held in Ireland as they were held in England King John at the Request and by the Consent of the Irish did appoint the Laws of England to be of Force in Ireland and tho' he did not this till the Twelfth year of his Reign of England yet he did it not as King of England but as Lord of Ireland For the Crown of England came to him by Descent from his Brother Richard who had no Regal Power in Ireland and what his Brother had not could not descend to him Henry the Third in the first year of his Reign gave Ireland a Magna Charta and in the Twelfth year of his Reign did provide That all the Laws of England should be observ'd in Ireland and that the Charter granted to the Irish by his Father King Iohn under his Seal when he was in that Kingdom should be kept inviolably And from the Days of these Three Kings have England and Ireland been both Govern'd by the like Forms of Government under one and the same Supreme Head the King of England yet so as both Kingdoms remain'd Separate and Distinct in their several Jurisdictions under that One Head as are the Kingdoms of England and Scotland at this day without any Subordination of the One to the Other It were endless to mention all Records and Precedents that might be quoted for the Establishment of the Laws of England in Ireland I shall therefore enter no farther into that Matter but therein refer to Lord Chief Justice Cook Pryn Reyly c. If now we Enquire What were those Laws of England that became thus Established in Ireland Surely we must first reckon the Great Law of Parliaments which England so justly Challenges and all Mankind have a Right to By the Law of Parliament I mean that Law where by all Laws receive their Sanction The Free Debates and Consent of the People by Themselves or their Chosen Representatives That this was a main Branch of the English Law Established in this Kingdom and the very Foundation of our Future Legislature appears manifest from Parliaments being so early convok'd in Ireland as the fore-mention'd Precedents express Mr. Pryn acknowledges one in Hen. II's time pag. 259. against the 4th Instit. but makes a very false Conclusion that there appears no Footsteps of a Parliament afterwards till the third year of Edward the Second because the Acts of that Parliament are the first that are Printed in our Irish Statute-Book For so we may argue the Parliaments of England to be of later Date than pretended when we find the first Printed Acts in Keeble to be no older than the 9th of Hen. III. Whereas 't is most certain that Parliaments have been held in England some Ages before that After this Great Law of Parliaments we may reckon the Common Law of England whether it relates to Regulating and Setling of Property and Estates in Goods or Land or to the Iudiciary and Executive parts of the Law and the Ministers and Process thereof or to Criminal Cases These surely were all Establish'd in this Country by the three first Kings of Ireland of the Norman Race Let us now consider the state of the Statute Laws of England under these three Kings and their Predecessors For by the Irish Voluntary Submission to and Acceptance of the Laws and Government of England we must repute them to have submitted themselves to these likewise till a Regular Legislature was Establish'd amongst them in pursuance of that Submismission and Voluntary Acceptance And here we shall find that in those Times viz. from the Norman Conquest to Henry the Third's time inclusive the Statute-Laws of England were very few and slender 'T is true that before the 12th of Hen. III. we find amongst the English Historians frequent mention of the Laws of Edward the Confessor William the Conquerour Hen. I. Hen. II. King Iohn and Hen. III. All which are only Charters or several Grants of Liberties from the King which nevertheless had the force of Acts of Parliament and laid as great Obligations both upon Prince and People as Acts of Parliament do at this day Whereof we may read several Proofs in the Princes Case Cook 's 8th Report But these were only so many Confirmations of each other and all of them Sanctions of the Common Laws and Liberties of the People of England ab Antiquo Usitatae comprohatae per totam terram in quibus ipsi eorum Patres nati nutriti sunt as the words of the Manuscript Chronicle of Litchfield express it The Laws of Edward the Confessor held in so great Veneration in Antient Times per universum Regnum corroboratae confirmatae prius inventae Constitutae fuerunt Tempore Regis Edgari Avi sui Verum tamen post mortem ipsius Regis Edgari usque ad Coronationem Sancti Regis Edwardi which was 67 years praedictae Leges Sopitae sunt penitus intermissae Sed postquam Rex Edwardus in Regno sublimatus fuit Consilio Baronum Angliae Legem illam sopitam Excitavit Excitam Reparavit Reparatam Decoravit Decoratam Confirmavit confirmatae vocantur Lex Sancti Regis Edwardi non quod ipse primus eam ad invenisset sed quod Reparavit Restituitque as the said Litchfield Chronicle has it These Laws of Edward the Confessor were transcribed by Ingulphus Abbot of Croy land under William the Conqueror and are annexed to his History The Laws of William the Conqueror are but a Confirmation of the Laws of Edward the Confessor with some small alterations as the very Letter of those Laws themselves express it Hoc quoque praecipimus ut omnes habeant teneant Leges Edwardi Regis in omnibus Rebus adauctis his quas constituimus ad Utilitatem Anglorum The Laws of Henry I. which are in the Red Book of the Exchequer in the custody of the Kings Remembrancer in England are but a summary confirmation both of the Laws of Edward the Confessor and William the First as the Charter it self expresses it Lagam Regis Edwardi vobis Reddo cum illis emendationibus quibus Pater meus emendavit Consilio Baronum suorum The Laws of Henry II. called Constitutiones Clarendoniae and the Assize of Clarendon in the 2d part of Cooks Inst. p. 6. are all but confirmations and vindications of the King 's just Prerogative against the Usurpations of the Pope and
Clergy As we find at large in Chron. Gervasii Doroborn p. 1387. Edit Lond. an 1652. The Laws of King John called The Great Charter of King John granted in the 17th Year of his Reign upon the Agreement made between him and his Barons at Running-Mead between Staines and Windsor was but a Confirmation of the Laws of Edward the Confessor and Henry the First as Mat. Paris relates it Anno Regis Johannis 17. venientes ad Regem magnates petierunt quasdam Libertates Leges Regis Edwardi cum aliis libertatibus sibi Regno Angliae Ecclesiae Anglicanae concessis confirmari prout in Charta Regis Hen I. ascriptae continentur The same Historian gives us also at large both Charta Libertatum and Charta de Foresta which are not extant in the Rolls of those times nor to be found in any till the 28th of Edward I. and that but by inspeximus The Laws of Henry III. contain'd in Magna Charta and Charta de Forresta both which are called Magnae Chartae Libertatis Angliae and were establish'd about the 9th Year of Henry III. are for the most part but declaratory of the common municipal Laws of England and that too no new declaration thereof for King Iohn in the 17th year of his Reign had granted the like before which was also call'd Magna Charta And by the English Statute 25 Ed. 1. c. 1. it is Enacted That the Great Charter and the Charter of the Forrest be taken as the Common Law of England By what foregoes I conceive it is very clear That all the Charters and Grants of Liberties from Edward the Confessor's time down to the 9th of Henry the Third were but Confirmations one of another and all of them Declarations and Confirmations of the Common Law of England And by the several Establishments which we have formerly mention'd of the Laws of England to be of force in Ireland First in the 13th of Henry II. Secondly in the 12th of King Iohn Thirdly in the 12th of Henry III. All those Laws and Customs of England which by those several Charters were Declared and Confirmed to be the Laws of England were establish'd to be of force in Ireland And thus Ireland came to be govern'd by one and the same Common Law with England and those Laws continue as part of the municipal and fundamental Laws of both Kingdoms to this day It now remains that we enquire How the Statute Laws and Acts of Parliament made in England since the 9th of Henry the Third came to be of force in Ireland And whether all or any of them and which are in force here and when and how they came to be so And the first Precedent that occurs in our Books of Acts of Parliament in Ireland particularly mentioning and confirming special Acts of Parliament in England is found in a Marginal Note of Sir Richard Bolton's formerly Lord Chief Baron of the Exchequer in Ireland affixed in his Edition of the Irish Statutes to Stat. 10 Hen. 7. Cap. 22. to this purport That in 13 Edw. II. by Parliament in this Realm of Ireland the Statutes of Merton made the 20th of Hen. II. and the Statutes of Marlbridge made the 52 of Henry the Third The Statute of Westminster the First made the 3d of Edward the First The Statute of Gloucester made the 6th of Edward the First And the Statute of Westminster the Second made the 13th of Edward the First were all confirm'd in this Kingdom and all other Statutes which were of force in England were referr'd to be Examin'd in the next Parliament and so many as were then Allow'd and Publish'd to stand likewise for Laws in this Kingdom And in the 10th of Henry the Fourth it was Enacted in this Kingdom of Ireland That the Statutes made in England should not be of force in this Kingdom unless they were Allow'd and Publish'd in this Kingdom by Parliament And the like Statute was made again in the 29th of Henry the Sixth These Statutes are not to be found in the Rolls nor any Parliament Roll of that time but he Sir Richard Bolton had seen the same Exemplisy'd under the Great Seal and the Exemplification remaineth in the Treasury of the City of Waterford Thus far the Note If we consider the frequent Troubles and Distractions in Ireland we shall not wonder that these and many other Rolls and Records have been lost in this Kingdom For from the third year of Edward the Second which was Anno 1310. through the whole Reigns of Edward III. Richard II. Henry IV. and Henry V. and so to the Seventh year of Henry the Sixth Anno 1428. which is about 118 years there are not any Parliament Rolls to be found yet certain it is that divers Parliaments were held in Ireland in those times The same may be said from Henry the Second's coming into Ireland Anno 1172. to the third year of Edward the Second Anno 1310. about 138 years Perhaps it may be said That if here were such Statutes of Ireland as the said Acts of the 10th of Henry the Fourth and the 29th of Henry the Sixth As they shew that the Parliaments of Ireland did think that English Acts of Parliament could not bind Ireland yet they shew likewise that even in those days the Parliaments of England did claim this Superiority or else to what purpose were the said Acts made unless in denial of that Claim All which I hope may be readily granted without any prejudice to the Right of the Irish Parliaments There is nothing so common as to have one Man claim another Mans Right And if bare Pretence will give a Title no Man is secure And it will be yet worse if when another so Pretends and I insist on my Right my Just Claim shall be turn'd to my Prejudice and to the Disparagement of my Title We know very well that many of the Judges of our Four Courts have been from time to time sent us out of England and some of them may easily be supposed to come over hither Prepossess'd with an Opinion of our Parliaments being subordinate to that of England Or at least some of them may be Scrupulous and desirous of full Security in this Point and on their Account and for their Satisfaction such Acts as aforesaid may be devised and Enacted in Ireland But then God forbid that these Acts should afterwards be laid hold of to a clear other intent than what they were framed for and instead of Declaring and Securing our Rights should give an Handle of Contest by shewing that our Rights have been question'd of Antient Time In conclusion of all If this Superiority of the Parliament of England have been Doubted a great while ago so it has been as great a while ago Strenuously Opposed and Absolutely Denied by the Parliaments of Ireland And by the way I shall take Notice That from whencesoever this Antient Pretence of Ireland's
Subordination proceeded in those days it did not arise from the Parliament of England it self For we have not one single Instance of an English Act of Parliament Expresly Claiming this Right of Binding us But we have several Instances of Irish Acts of Parliament Expresly Denying this Subordination as appears by what foregoes Afterwards by a Statute made in Ireland the 18th of Hen. VI. Cap. 1. All the Statutes made in England against the Extortions and Oppressions of Purveyors are Enacted to be holden and kept in all Points and put in Execution in this Land of Ireland And in the 32d year of Henry the Sixth Cap. 1. by a Parliament in Ireland 't is Enacted That all the Statutes made against Provisors to the Court of Rome as well in England as in Ireland be had and kept in force After this in a Parliament at Drogheda the 8th of Edward IV. cap. 1. it was Ratify'd That the English Statute against Rape made the 6th of Richard the Second should be of Force in Ireland from the 6th day of March last past And that from henceforth the said Act and all other Statutes and Acts made by Authority of Parliament within the Realm of England be Ratify'd and Confirm'd and Adjudged by the Authority of this Parliament in their Force and Strength from the said sixth day of March We shall hereafter have occasion of taking farther Notice of this Statute upon another Account Lastly In a Parliament held at Drogheda the 10th of Henry the Seventh cap. 22. it is Enacted That all Statutes late that is as the Learned in the Laws expound it before that time made in England concerning the Common and Publique Weal of the same from henceforth be Deem'd effectual in Law and be Accepted Used and Executed within this Land of Ireland in all Points c. And in the 14th year of the same Kings Reign in a Parliament held at Tristle-Dermot it was Enacted That all Acts of Parliament made in England for Punishing Customers Controulers and Searchers for their Misdemeanors or for Punishment of Merchants or Factors be of Force here in Ireland Provided they be first Proclaim'd at Dublin Drogheda and other Market-Towns Thus we see by what Steps and Degrees all the Statutes which were made in England from the time of Magna Charta to the 10th of Henry the Seventh which did concern the Common Publick Weal were Receiv'd Confirm'd Allow'd and Authoriz'd 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 We shall next Enquire Whether there are not other Acts of the English Parliament both before and since the 10th of Henry the Seventh which were and are of Force in Ireland tho' not Allow'd of by Parliament in this Kingdom And we shall find That by the Opinion on of our best Lawyers there are divers such but then they are only such as are Declaratory of the Antient Common Law of England and not introductive of any New Law For these become of Force by the first General Establishment of the Common Laws of England in this Kingdom under Henry the Second King Iohn and Henry the Third and need no particular Act of Ireland for their Sanction As to those English Statutes since the 10th of Henry the Seventh that are Introductive of a New Law it was never made a Question whether they should Bind Ireland without being Allow'd in Parliament here till of very late years this Doubt began to be moved and how it has been Carried on and Promoted shall Appear more fully hereafter I say Till of very late years for the Antient Precedents which we have to the contrary are very numerous Amongst many we shall mention the following Particulars In the 21th of Henry the 8th an Act was made in England making it Felony in a Servant that runneth away with his Masters or Mistresses Goods This Act was not receiv'd in Ireland till it was Enacted by a Parliament held here in the 33d of Henry the 8th c. 5. Ses. 1. In the 21th of Henry VIII c. 19. there was a Law made in England That all Lords might Distrain on the Lands of them holden and make their Avowry not naming the Tenant but the Land But this was not of force in Ireland till Enacted here in the 33d of Henry VIII C. 1. Ses. 1. An Act was made in England anno 31. Henry VIII That Joint-Tenents and Tenents in Common should be compelled to make Partition as Coparceners were compellable at Common Law But this Act was not Receiv'd in Ireland till Enacted here An. 33. Henry VIII c. 10. Anno 27. Henry VIII c. 10. The Statute for Transferring Uses into Possession was made in England but not admitted in Ireland till 10. Car. 1. Ses. 2. In like manner the English Statute 33. Henry VIII c. 1. directing how Lands and Tenements may be dispos'd by Will c. was not of force in Ireland till 10. Car. 2. Ses. 2. The Act of Uniformity of Common Prayer and Administration of the Sacraments was made in England the 1st of Eliz. c. 2. but was not establish'd in Ireland till the 2d of Eliz. c. 2. And so that of England 14. Car. 2. c. 14. was not receiv'd in Ireland till 17. 18. Car. 2 c. 6. The Statute against Wilful Perjury made in England 5. Eliz. c. 9. was not Enacted in Ireland till 28 Eliz. c. 1. So the English Act against Witchcraft and Sorcery made 5 Eliz. c. 16. And another Act against Forgery 5 Eliz. c. 14. were neither of them in force in Ireland till the 28th of Her Reign Cap. 3 and 4. The English Statutes against Pirates was made the 28th of Hen. 8. c. 15. but not in Ireland till the 12th of King Iames c. 2. In England an Act was made the 27th of Eliz. c. 4 against Fraudulent Conveyances but it was not in force in Ireland till Enacted here the 10th of Charles c. 3. Ses. 2. In the 15th year of King Charles the 1st in a Parliament held at Dublin there were Six English Statutes made Laws of this Kingdom with such Alterations as best fitted them to the State thereof viz. 21 Iac. c. 14. For pleading the General Issue in Intrusions brought by the King by Chap. 1. of the Irish Statutes 31 Eliz. c. 2. For Abridging of Proclamations on Fines by Chap. 2. 2 and 3 Edw. 6. c. 8. Concerning Offices before the Escheator by Chap. 4. 31 Eliz. c. 1. Discontinuance of Writs of Error in the Exchequer Chamber by Chap. 5. 8 Eliz. c. 4. and 18 Eliz. c. 7. concerning Clergy by Chap. 7. 24 Hen. 8. c. 5. Concerning Killing a Robber by Chap. 9. There are Six English Statutes likewise passed in the time of King Charles the 2d upon and soon after the Restoration some of which were not passed into Laws in Ireland till a year two or three afterwards As will appear
by consulting the Statute Books And in the First year of William and Mary Ses. 2. c. 9. an Act passed in England declaring all Attainders and other Acts made in the late pretended Parliament under King James at Dublin void But was not Enacted here in Ireland till the 7th year of K. William c. 3. And this was thought requisite to be done upon mature consideration thereon before the King and Council of England notwithstanding that the English Act does particularly name Ireland and was wholly design'd for and relates thereto The like may we find in several other Statutes of England passed since his present Majesties Accession to the Throne which have afterwards been passed here in Ireland with such Alterations as make them practicable and agreeable to this Kingdom Such as are amongst others the Act for Disarming Papists The Act of Recognition The Act for taking away Clergie from some Offenders The Act for taking Special Bail in the Country c. The Act against Clandestine Mortgages The Act against Cursing and Swearing These with many more are to to be found in our Statute Books in the several Reigns of Henry the 8th Edward the 6th Queen Elizabeth King Iames King Charles the 1st and 2d and King William But it is not to be found in any Records in Ireland that ever any Act of Parliament introductive of a new Law made in England since the time of King Iohn was by the judgment of any Court received for Law or put in Execution in the Realm of Ireland before the same was Confirmed and Assented to by Parliament in Ireland And thus I presume we have pretty clearly made out our Fourth Enquiry forementioned and shewn plainly the several steps by which the English form of Government and the English Statute Laws were received in this Kingdom and that this was wholly by the Peoples consent in Parliament to which we have had a very antient Right and as full a Right as our next Neighbours can pretend to or challenge I shall now consider the Objections and Difficulties that are moved on this Head drawn from Precedents and Passages in our Law-Books that may seem to prove the contrary First 't is urg'd That in the Irish Act concerning Rape passed anno 8 Edward 4 c. 1. 't is expressed That a Doubt was conceiv'd whether the English Statute of the 6th of Richard the 2d c. 6. ought to be of force in Ireland without a Confirmation thereof in the Parliament of Ireland Which shews as some alledg that even in those days it was held by some That an Act of of Parliament in England might bind Ireland before it be consented to in Parliament here But I concieve this Gloss is rais'd meerly for want of Expressing the Reason of the said Doubt in the Irish Statute of the 8th of Edward the 4th c. 1. which we may reasonably judge was this By the Statute of Westminster the 2d c. 34. a Woman that eloped from her Husband and lived with the Adulterer or a Wife that being first Ravish'd did afterwards consent and lived with the Ravisher she should loose her Dower This Statute of Westminster the 2d was made of force in Ireland by an Act passed here the 13th of Edward the 2d as we have seen before pag. 68 69. Afterwards by the English Statute of the 6th of Rich. the 2d c. 6. there was a farther addition made to the said Statute of Westminster the 2d to this effect That a Maiden or Wife being Ravished and afterwards consenting to the Ravishers as well the Ravisher as she that was Ravished shall be disabled to claim all Inheritance or Dower after the death of her Husband or Ancestor On this account the Doubt was here raised in Ireland in the 8th of Edward the 4th c. 1. Whether this latter English Statute of the 6th of Richard the 2d c. 6. were not in force in Ireland by virtue of the Irish Statute of the 13th of Edward the 2d which confirmed the Statute of Westminster the 2d c. 34. And for setling this Doubt the said Statute of the 8th of Edward the 4th c. 1. was passed in Ireland and we find very good reason for the said Doubt For the English Statute of the 6th of Richard the 2d c. 6. contained but a small addition to the Statute of Westminster the 2d c. 34. and we see that even this ad dition it self was judged not to be of force in Ireland till Enacted here For the said Irish Statute of the 8th of Edward the 4th c. 1. makes the said Statute of the 6th of Rich. 2d c. 6. of Force in Ireland only from the 6th of March then last past 'T is urg'd secondly That tho' 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 all his Majesty's Dominions or by particularly Naming of Ireland are and shall be of Force in this Kingdom This being a Doctrine first broach'd Directly as I conceive by Will. Hussey Lord Chief Justice of the Kings Bench in England in the first year of Henry the Seventh and of late Revived by the Lord Chief Justice Cook and strongly urged and much rely'd upon iâ—… these latter Days I shall take thâ—… Liberty of Enlarging thereon tho I venture thereby to swell this Pamphlet to a size greater than I desire or design'd First therefore As to such English Statutes as seem to comprehend Ireland and to Bind it under the General Words of all his Majesty's Dominions or Subjects whatever has been the Opinion of Private and Particular Lawyers in this Point I am sure the Opinions of the Kings of England and their Privy Council have been otherwise 'T is well known since Poyning's Act in Ireland the 10th of Henry the Seventh no Act can pass in our Parliament here till it be first Assented to by the King and Privy Council of England and Transmitted hither under the Broad Seal of England Now the King and his Privy Council there have been so far from surmising that an Act of Parliament of England mentioning only in General All the Kings Dominions or Subjects should Bind Ireland that they have clearly shewn the contrary by frequently Transmitting to Ireland to be pass'd into Laws here English Statutes wherein the General Words of all the Kings Dominions or Subjects were contain'd which would have been to no purpose but meerly Actum Agere had Ireland been Bound before by those English Statutes Of this I shall give the following Examples amongst many others The Act of Parliament in England against Appeals to Rome 24 Hen. 8. c. 12. by express words extends to all his Majesties Dominions yet the same was not in force nor receiv'd in Ireland till it was Enacted by Parliament there the 28th of Hen. 8. c. 6. In like manner the Statutes made in England concerning First Fruits
Iudgment of Law Whether he means the Law of Nature and Reason or of Nations or the Civil Laws of our Commonwealths in none of which Senses I conceive will he or any Man be ever able to make out his Position Is the Reason of England's Parliament not Binding Ireland Because we do not send thither Representatives And is the Efficacy of this Reason taken off by our being Named in an English Act Why should sending Representatives to Parliament Bind those that send them Meerly because thereby the Consent of those that are Bound is obtain'd as far as those sort of Meetings can possibly permit which is the very Foundation of the Obligation of all Laws And is Ireland's being Named in an English Act of Parliament the least step towards obtaining the Consent of the People of Ireland If it be not then certainly my Lord Cook 's Parenthesis is to no purpose And 't is a wonder to me that so many Men have run upon this vain Imagination meerly from the Assertion of this Judge For I challenge any Man to shew me that any one before him or any one since but from him has vended this Doctrine And if the bare Assertion of a Judge shall Bind a whole Nation and Dissolve the Rights and Liberties thereof We shall make their Tongues very powerful and constitute them greater Lawgivers than the greatest Senates I do not see why my Denying it should not be as Authentick as his Affirming it 'T is true He was a great Lawyer and a powerful Judge but had no more Authority to make a Law than I or any Man else But some will say He was a Learned Judge and may be supposed to have Reason for his Position Why then does he not give it us And then what he Asserts would Prevail not from the Authority of the Person but from the Force of the Reason The most Learned in the Laws have no more power to make or alter a Constitution than any other Man And their Decisions shall no farther prevail than supported by Reason and Equity I conceive my Ld. Ch. Justice Cooke apply'd himself so wholly to the Study of the Common Laws of England that he did not enquire far into the Laws of Nature and Nations if he had certainly he could never have been Guilty of such an Erroneous Slip He would have seen demonstrably that Consent only gives Humane Laws their Force and that therefore the Reason in the Case he quotes is unanswerable Quia non mittunt Milites ad Parliamentum Moreover the Assertion of Cooke in this point is directly contrary to the whole tenour of the Case which he cites For the very Act of Parliament on which the Debate of the Judges did arise and which they deemed not to be of Force in Ireland particularly names Ireland So that here again Ld. Cooke's Error appears most plainly For this I refer to the Report as I have exactly delivered it before pag. 90 91. By which it appears clearly to be the unanimous Opinion of all the Judges then in the Exchequer Chamber That within the Land of Ireland the Parliaments of England have no Jurisdiction whatever they may have over the Subjects of Ireland on the open Seas And the reason is given Quia Hibernia non mittit Milites ad Parliamentum in Angliâ This Assertion likewise is inconsistent with himself in other parts of his Works He tells us in his 4th Inst. pag. 349. That 't is plain that not only King John as all Men allow but Henry the Second also the Father of King John did Ordain and Command at the Instance of the Irish That such Laws as had been in England should be Observ'd and of Force in Ireland Hereby Ireland being of it self a distinct Dominion and no part of the Kingdom of England was to have Parliaments holden there as in England And in pag. 12. he tells us That Henry the Second sent a Modus into Ireland directing them how to hold their Parliaments But to what end was all this if Ireland nevertheless were subject to the Parliament of England The King and Parliaments of these Kingdoms are the supream Legislators If Ireland be subject to Two its Own and that of England it has Two Supreams 't is not impossible but they may Enact different or contrary Sanctions which of these shall the People Obey He tells us in Calvin's Case fol. 17. b. That if a King hath a Christian Kingdom by Conquest as Henry the Second had Ireland after King John had given to them being under his Obedience and Subjection the Laws of England for the Government of that Country no succeeding King could alter the same without Parliament Which by the way seems directly contradictory to what he says concerning Ireland six lines below this last cited passage So that we may observe my Lord Cook enormously stumbling at every turn in this Point Thus I have done with this Reverend Judge and in him with the only Positive Opinion against us I shall now consider what our Law-Books offer in our Favour on this Point To this purpose we meet a Case fully apposite reported in the Year-Book of the 20th of Henry the 6th fol. 8. between one Iohn Pilkington and one A. Pilkington brought a Scire Facias against A. to shew Cause why Letters Patents whereby the King had granted an Office in Ireland to the said A. should not be repeal'd since the said Pilkington had the same Office granted to him by former Letters Patents of the same King to be occupied by himself or his Deputy Whereupon A. pleaded That the Land of Ireland time out of Memory hath been a Land separated and distinct from the Land of England and Ruled and Governed by the Customs of the same Land of Ireland That the Lords of the same Land which are of the King's Council have used from time to time in the absence of the King to Elect a Iustice who hath Power to Pardon and Punish all Felons c. and to call a Parliament and by the Advice of the Lords and Commonalty to make Statutes He alledged further That a Parliament was Assembled and that it was Ordain'd by the said Parliament That every Man who had an Office within the said Land before a certain day shall occupy the said Office by himself otherwise he should forfeit He shew'd that Pilkington Occupied by a Deputy and that therefore his Office was void and that the King had granted the said Office to him the said A. Hereupon Pilkington Demurr'd in Law and it was debated by the Judges Yelverton Fortescue Portington Markham and Ascough whether the said Prescription in relation to the State and Government of Ireland be good oâ—… void in Law Yelverton and Portington held the Prescription void But Fortescue Markham and Ascough held the Prescription good and that the Letters Patents made to A were good and ought not to be Repeal'd And in this it was agreed by Fortescue and Portington That if
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
it but with all possible Gratitude Acknowledge the Mighty Benefits Ireland has often receiv'd from England in helping to suppress the Rebellions of this Counâ—…ry To England's Charitable Assistance our Lives and Fortunes are owing But with all humble Submission I desire it may be considered whether England did not at â—…he same time propose the Prevention of their own Danger that would necessarily have attended our Ruine if so 't was in some measure their own Battels they fought when they fought for Ireland and a great part of their Expence must be reckon'd in their own Defence Another thing alledged against Ireland is this If a Foreign Nation as France or Spain for instance prove prejudicial to England in its Trade or any other way England if it be stronger redresses it self by Force of Arms or Denouncing War and why may not England if Ireland lies cross their Interests restrain Ireland and bind it by Laws and maintain these Laws by Force To this I answer First That it will hardly be instanced that any Nation ever Declared War with another meerly for over-topping them in some signal Advantage which otherwise or but for their Endeavours they might have reaped War only is Justifiable for Injustice done or Violence offer'd or Rights detain'd I cannot by the Law of Nations quarrel with a Man because he going before me in the Road finds a Piece of Gold which possibly if he had not taken it up I might have light upon and gotten 'T is true we often see Wars commenced on this Account under-hand and on Emulation in Trade and Riches but then this is never made the Open Pretence some other Colour it must receive or else it would not look fair which shews plainly that this Pretence of being Prejudicial or of reaping Advantages which otherwise you might partake of is not Iustifiable in it self But granting that it were a good Justification of a War with a Foreign Nation it will make nothing in the Case between England and Ireland for if it did why does it not operate in the same manner between England and Scotland and consequently in like manner draw after it England's binding Scotland by their Laws at Westminster We are all the same Kings Subjects the Children of one Common Parent and tho' we may have our Distinct Rights and Inheritances absolutely within our selves yet we ought not when these do chance a little to interfere to the prejudice of one or t'other side immediately to treat one another as Enemies fair Amicable Propositions should be proposed and when these are not hearkened to then 't is time enough to be at Enmity and use Force The last thing I shall take Notice of that some raise against us is That Ireland is to be look'd upon only as a Colony from England And therefore as the Roman Colonies were subject to and bound by the Laws made by the Senate at Rome so ought Ireland by those made by the Great Council at Westminster Of all the Objections raised against us I take this to be the most Extravagant it seems not to have the least Foundation or Colour from Reason or Record Does it not manifestly appear by the Constitution of Ireland that 't is a Compleat Kingdom within it self Do not the Kings of England bear the Stile of Ireland amongst the rest of their Kingdoms Is this Agreeable to the nature of a Colony Do they use the Title of Kings of Virginia new-New-England or Mary-Land Was not Ireland given by Henry the Second in a Parliament at Oxford to his Son Iohn and made thereby an Absolute Kingdom separate and wholly Independent on England till they both came United again in him after the Death of his Brother Richard without Issue Have not multitudes of Acts of Parliament both in England and Ireland declared Ireland a Compleat Kingdom Is not Ireland stiled in them All the Kingdom or Realm of Ireland Do these Names agree to a Colony Have we not a Parliament and Courts of Judicature Do these things agree with a Colony This on all hands involves so many Absurdities that I think it deserves nothing more of our Consideration These being the only remaining Arguments that are sometimes mention'd Against us I now proceed to offer what I humbly conceive Demonstrates the Justice of our Cause And herein I must beg the Reader 's Patience if now and then I am forced lightly to touch upon some Particulars foregoing I shall Endeavour all I can to avoid prolix Repetitions but my Subject requires that sometimes I just mention or refer to several Notes before delivered First therefore I say That Ireland should be Bound by Acts of Parliament made in England is against Reason and the Common Rights of all Mankind All Men are by Nature in a state of Equality in respect of Jurisdiction or Dominion This I take to be a Principle in it self so evident that it stands in need of little Proof 'T is not to be conceiv'd that Creatures of the same Species and Rank promiscuously born to all the same Advantages of Nature and the use of the same Faculties should be Subordinate and Subject one to another These to this or that of the same Kind On this Equality in Nature is founded that Right which all Men claim of being free from all Subjection to Positive Laws till by their own Consent they give up their Freedom by entring into Civil Societies for the common Benefit of all the Members thereof And on this Consent depends the Obligation of all Humane Laws insomuch that without it by the Unanimous Opinion of all Iurists no Sanctions are of any Force For this let us Appeal amongst many only to the Iudicious Mr. Hooker's Eccles. Polity Book 1. Sec. 10. Lond. Ed it 1676. Thus He. Howbeit Laws do not take their Constraining force from the Quality of such as Devise them but from that Power which doth give them the strength of Laws That which we spake before concerning the Power of Government must here be applied to the Power of making Laws whereby to Govern which Power God hath over All and by the Natural Law whereunto he hath made all subject the Lawful Power of making Laws to command whole Politick Societies of Men belongeth so properly unto the same entire Societies that for any Prince or Potentate of what kind soever upon Earth to exercise the same of himself and not either by express Commission immediately and personally receiv'd from God or else by Authority derived at the first from their Consent upon whose Persons they impose Laws it is no better than meer Tyranny Laws they are not therefore which Publick Approbation hath not made so But Approbation not only they Give who Personally declare their Assent by Voice Sign or Act but also when others do it in their Names by Right Originally at the least derived from them As in Parliaments Councils c. Again Sith Men Naturally have no full and perfect Power to command whole Politick
Multitudes of Men therefore utterly without our Consent we could in such sort be at no Mans Commandment living And to be commanded we do consent when that Society whereof we are part hath at any time before consented without revoking the same after by the like Universal Agreement Wherefore as any Mans Deed past is good as long as himself continueth so the Act of a Publick Society of Men done five hundred years sithence standeth as theirs who presently are of the same Societies because Corporations are Immortal we were then alive in our Predecessors and they in their Successors do still live Laws therefore Humane of what kind soever are available by Consent c. And again But what matter the Law of Nations doth contain I omit to search the strength and vertue of that Law is such that no particular Nation can lawfully prejudice the same by any their several Laws and Ordinances more then a Man by his Private Resolutions the Law of the whole Commonwealth or State wherein he liveth for as Civil Law being the Act of a whole Body Politick doth therefore over-rule each Civil part of the same Body so there is no Reason that any one Commonwealth of it self should to the Prejudice of another annihilate that whereupon the whole World hath Agreed To the same purpose may we find the Universal Agreement of all Civilians Grotius Puffendorf Lock 's Treat Government c. No one or more Men can by Nature challenge any Right Liberty or Freedom or any Ease in his Property Estate or Conscience which all other Men have not an Equally Iust Claim to Is England a Free People So ought France to be Is Poland so Turky likewise and all the Eastern Dominions ought to be so And the same runs throughout the whole Race of Mankind Secondly 'T is against the Common Laws of England which are of Force both in England and Ireland by the Original Compact before hinted It is Declared by both Houses of the Parliament of England 1 Iac. cap. 1. That in the High Court of Parliament all the whole Body of the Realm and every particular Member thereof either in Person or by Representation upon their own Free Elections are by the Laws of this Realm deem'd to be Personally present Is this then the common Law of England and the Birth-right of every Free-born English Subject And shall we of this Kingdom be deny'd it by having Laws imposed on us where we are neither Personally nor Representatively present My Lord Cooke in his 4th Inst. cap. 1. saith That all the Lords Spiritual and Temporal and all the Commons of the whole Realm ought ex Debito Justiciae to be Summon'd to Parliament and none of them ought to be Omitted Hence it is call'd Generale Concilium in the Stat. of Westminst 1. and Commune Concilium because it is to comprehend all Persons and Estates in the whole Kingdom And this is the very Reason given in the Case of the Merchants of Waterford foregoing why Statutes made in England should not bind them in Ireland Quia non habent Milites hic in Parliamento Because they have no Representatives in the Parliament of England My Lord Hobbard in the Case of Savage and Day pronounced it for Law That whatever is against Natural Equity and Reason is against Law Nay if an Act of Parliament were made against Natural Equity and Reason that Act was void Whether it be not against Equity and Reason that a Kingdom regulated within it self and having its own Parliament should be Bound without their Consent by the Parliament of another Kingdom I leave the Reader to consider My Lord Cooke likewise in the first Part of his Institutes fol. 97. b. saith Nihil quod est contra Rationem est Licitum And in the old Modus Tenendi Parliamenta of England said to be writ about Edward the Confessor's time and to have been Confirmed and Approved by William the Conqueror It is expresly declared That all the Lords Spiritual and Temporal and the Knights Citizens and Burgesses ought to be summoned to Parliament The very same is in the Modus sent into Ireland by Henry the 2d And in King Iohn's Great Charter dated 17. Iohannis 't is granted in these words Et ad habend Commune Concilium Regni de Auxiliis Scutagiis Assidendis Submoneri faciemus Arâ—…hiepiscopos Episcopos Abbates Comites Majores Barones Regni Sigillatim per Literas Nostras faciemus submoneri in generali per Vicecomites omnes alios c. Math. Paris ad An. 17. Iohann All are to be Summoned to Parliament the Nobility by special Writts the Commons by general Writts to the Sheriffs And is this the Common Law of England Is this part of those Liberae Consuetudines that were contained in the Great Charter of the Liberties of the People of England And were so solemnly granted by Henry II. King Iohn and Henry the 3d to the People of Ireland that they shou'd Enjoy and be Governd by and unto which they were Sworn to be Obedient And shall they be of Force only in England and not in Ireland Shall Ireland Receive these Charters of Liberties and be no Partakers of the Freedoms therein contained Or do these words signifie in England one thing and in Ireland no such thing This is so repugnant to all Natural Reason and Equity that I hope no Rational Man will Contest it I am sure if it be so there 's an end of all Speech amongst Men All Compacts Agreements and Societies are to no purpose 3. It is against the Statute Laws both of England and Ireland this has been pretty fully disuss'd before however I shall here again take notice That in the 10. of Henry the 4th it was Enacted in Ireland that Statutes made in England should not be of Force in Ireland unless they were Allowed and Published by the Parliament of Ireland And the like Statute was made the 29th of Henry the 6th And in the 10th Year of Henry the 7th Chap. 23 Irish Statutes The Parliameâ—… which was held at Drogheda beforâ—… Sir Christopher Preston Deputy to Iaspar Duke of Bedford Lieutâ—… nant of Ireland was declared Void for this Reason amongst others That there was no General Summons of the said Parliament to all the Shires but only to Four And if Acts of Parliament made in Irelanâ—… shall not Bind that People because some Counties were omitted how much less shall either their Persons or Estates be Bound by those Acts made in England whereat no one County or Person of that Kingdom is present In the 25tâ—… of Edward the 1st Cap. 6. It was Enacted by the Parliament of England in these Words Moreover from henceforth we shall take no manner of Aid Taxes or Prizes but by the Common Assent of the Realm And again in the Statute of Liber ties by the same King Cap. 1. Dâ—… Tallag non Concedend it is Enacted in these Words No Tallage or Aid
is the Brutal Force the Aggressor has used that gives his Adversary a Right to take away his Life as a noxious Creature But 't is only Damage sustain'd that gives Title to another Mans Goods It must be confess'd that the Practice of the World is otherwise and we commonly see the Conqueror whether Iust or Unjust by the Force he has over the Conquer'd compels them with a Sword at their Brest to stoop to his Conditions and submit to such a Government as he pleases to Afford them But we Enquire not now what is the Practice but what Right there is to do so If it be said the Conquer'd submit by their own Consent Then this allows Consent necessary to give the Conquerour a Title to Rule over them But then we may Enquire whether Promises Extorted by Force without Right can be thought Consent and how far they are Obligatory And I humbly conceive they Bind not at all He that forces my Horse from me ought presently to Restore him and I have still a Right to retake him So he that has forced a Promise from me ought presently to Restore it that is quit me of the Obligation of it or I may chuse whether I will perform it or not For the Law of Nature obliges us only by the Rules she prescribes and therefore cannot oblige me by the Violation of her Rules such is the Extorting any thing from me by Force From what has been said I presume it pretty clearly appears that an Unjust Conquest gives no Title at all That a Iust Conquest gives Power only over the Lives and Liberties of the Actual Opposers but not over their Posterity or Estates otherwise than as before is mentioned and not at all over those that did not Concur in the Opposition They that desire a more full Disquisition of this Matter may find it at large in an Incomparable Treatise concerning the True Original Extent and End of Civil Government Chap. 16. This Discourse is said to be written by my Excellent Friend IOHN LOCKE Esq Whether it be so or not I know not This I am sure whoever is the Author the Greatest Genius in Christendom need not disown it But granting that all we have said in this Matter is Wrong and granting that a Conquerour whether Iust or Unjust obtains an Absolute Arbitrary Dominion over the Persons Estates Lives Liberties and Fortunes of all those whom he finds in the Nation their Wives Posterity c. so as to make perpetual Slaves of them and their Generations to come Let us next Enquire whether Concessions granted by such a Victorious Hero do not bound the Exorbitancy of his Power and whether he be not Obliged strictly to Observe these Grants And here I believe no Man of Common Sense or Justice will Deny it None that has ever Consider'd the Law of Nature and Nations can possibly hesitate on this matter the very Proposing it strikes the Sense and Common Notions of all Men so forcibly that it needs no farther proof I shall therefore insist no longer on it but hasten to consider how far this is the Case of Ireland And that brings me naturally to the fourth Particular propos'd vizt To shew by Precedents Records and History what Concessions and Grants have been made from time to time to the People of Ireland and by what steps the Laws of England came to be introduced into this Kingdom We are told by Matth. Paris Historiographer to Hen. III. 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 Govern'd by the Laws of England Rex Henricus saith he antequam ex Hibernia Rediret apud Lismore Concilium Congregavit ubi Leges Angliae sunt ab omnibus gratanter receptae Iuratoriâ cautione prestitâ Confirmatae Vid. Matth. Paris ad An. 1172. Vit. H. 2. And not only thus but if we may give Credit to Sir Edward Cook in the 4th Instit. Cap. 1. and 76. and to the Inscription to the Irish Modus Tenendi Parliamentum it will clearly Appear that Henry the Second did not only settle the the Laws of England in Ireland and the Jurisdiction Eclesiastical there by the Voluntary Acceptance and Allowance of the Nobility and Clergy but did likewise Allow them the Freedom of Holding of Parliaments in Ireland as a separate and distinct Kingdom from England and did then send them a Modus to Direct them how to Hold their Parliaments there The Title of which Modus runs thus Henricus Rex Angliae Conquestor Dominus Hiberniae c. Mittit hanc formam Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus Iusticiariis Vicecomitibus Majoribus Praepositis Ministris omnibus Fidelibus suis Terrae Hiberniae Tenendi Parliamentum In primis Summonitio Parliamenti praecedere debet per Quadraginta Dies And so forth This Modus is said to have been sent into Ireland by Hen. II. for a Direction to Hold their Parliaments there And the sense of it agrees for the most part with the Modus Tenendi Parl. in England said to have been Allowed by William the Conquerour when he obtain'd that Kingdom where 't is alter'd 't is only to fit it the better for the Kingdom of Ireland I know very well the Antiquity of this Modus so said to be Transmitted for Ireland by Hen. II. is question'd by some Learned Antiquaries particularly by Mr. Selden and Mr. Pryn who deny also the English Modus as well as this But on the other hand my Lord Chief Justice Cook in the 4th Instit. pag. 12. and 349. does strenuously Assert them both And the late Reverend and Learned Dr. Dopping Bishop of Meath has Published the Irish Modus with a Vindication of its Antiquity and Authority in the Preface There seems to me but two Objections of any Moment raised by Mr. Pryn against these Modi The One relates both to the English and Irish Modus the other chiefly strikes at the Irish. He says the Name Parliament so often found in these Modi was not a name for the great Council of England known so early as these Modi Pretend to I confess I am not prepared to Disprove this Antiquary in this Particular But to me it seems reasonable enough to Imagine that the Name Parliament came in with William the Conqueror 'T is a Word perfectly French and I see no reason to doubt it's Coming in with the Normans The other Objection affects our Irish Modus for he tells us That Sheriffs were not establish'd in Ireland in Henry II's time when this Modus was pretended to be sent hither yet we find the Word Vicecomes therein To this I can only Answer That Hen. II. intending to Establish in Ireland the English form of Government as the first and Chief step thereto he sent them Directions for Holding of Parliaments Designing afterwards by degrees and in
26 Hen. 8. c. 3. and the Act of Faculties 25 Hen. 8. c. 21. though each of them by express words comprize All his Majesties Subjects and Dominions were not receiv'd as Laws in Ireland till the former was Enacted there 28 H. 8. c. 4. and the latter the 28 Hen. 8. c. 19. and so the Stature Restoring to the Crown all Jurisdiction Ecclesiastical made in England Anno 1 Eliz. c. 1. and therein giving Power to Erect an Ecclesiastical High-Commission-Court in England and Ireland yet was not of Force in Ireland till Enacted there Anno 2 Eliz. c. 1. And tho the said English Act in relation to Erecting such an High-Commission Court was Repeal'd 17 Car. 1. c. 11 and the Repeal confirm'd the 13 Car. 2. c. 12 And the late Bill of Rights 1 W. and M. Ses. 2. c. 2. in England has damn'd all such Courts Yet the Act in Ireland 2 Eliz. c. 1. remains still in force here and so it was lately declar'd here by the Lord High-Chancellour Porter Lord Chief Justice Reynel Lord Chief Baron Hely Mr. Justice Cox Mr. Justice Ieffreyson in the Case of Dr. Thomas Hacket late Bishop of Down who was depriv'd of the said Bishoprick by such a Commission for great Enormities the Commissioners being Dr. Dopping late Bishop of Meath Dr. King the present Bishop of London-Derry and Dr. Wiseman late Bishop of Dromore And truly I see no more Reason for Binding Ireland by the English Laws under the General Words of all his Majesties Dominions or Subjects than there is for Binding Scotland by the same for Scotland is as much his Dominion and Scots-men as much his Subjects as Ireland and Irish-men If it be said That Scotland is an Antient Separate and Distinct Kingdom from England I say So is Ireland The Difference is Scotland continued separate from the Kings of England till of late years and Ireland continued separate from England but a very little while in the Person of King Iohn before the Death of his Father and of his Brother Richard the First without issue But then 't is to be considered that there was a Possibility or even a Probability that Ireland might have continued separate from the Crown of England even to this very day if Richard the First had left behind him a Numerous Progeny Secondly As to such English Statutes as particularly Name Ireland and are therefore said to be of Force in this Kingdom tho' never Enacted here I shall consider only the more Antient Precedents that are offered in Confirmation of this Doctrine For as to those of later Date 't is these we complain of as bearing hard on the Liberties of this Country and the Rights of our Parliaments and therefore these ought not to be produced as Arguments against us I presume if I can shew that the Antient Precedents that are produced do not conclude against us it will follow that the Modern Instances given ought not to conclude against us that is to say plainly These ought not to have been made as they are as wanting Foundation both from Authority and Reason The Antient Precedents of English Statutes particularly Naming Ireland and said to be made in England with a Design of Binding Ireland are chiefly these three 1. Statutum Hiberniae 14 H. 3. 2. Ordinatio pro Statu Hiberniae 17 Edw. 1. 3. And the Act that all Staple Commodities passing out of England or Ireland shall be carried to Callis as long as the Staple is at Callis 2 Hen. 6. c. 4. on which Hussey delivered his Opinion as we shall see more fully hereafter These Statutes especially the two first being made for Ireland as their Titles import have given occasion to think that the Parliament of England have a Right to make Laws for Ireland without the Consent of their Chosen Representatives But if we Enquire farther into this matter we shall find this Conclusion not fairly Deduced First The Statutum Hiberniae 14 Hen. 3. as 't is to be found in the Collection of English Statutes is plainly thus The Judges in Ireland conceiving a Doubt concerning Inheritances devolved to Sisters or Coheirs viz. Whether the younger Sisters ought to hold of the Eldest Sister and do Homage unto her for their Portions or of the Chief Lord and do Homage unto him therefore Girald Fitz Maurice the then Lord Justice of Ireland dispatcht four Knights to the King in England to bring a Certificate from thence of the Practice there used and what was the Common-Law of England in that Case Whereupon Hen. 3. in this his Certificate or Rescript which is called Statutum Hiberniae meerly informs the Justice what the Law and Custom was in England viz. That the Sisters ought to hold of the Chief Lord and not of the Eldest Sister And the close of it commands that the foresaid Customs that be used within our Realm of England in this Case be Proclaimed throughout our Dominion of Ireland and be there observ'd Teste meipso apud Westminst 9. Feb. An. Reg. 14. From whence 't is manifest that this Statutum Hiberniae was no more than a Certificate of what the common Law of England was in that Case which Ireland by the Original Compact was to be governed by And shews no more that therefore the Parliament of England may bind Ireland than it would have proved that the Common Wealth of Rome was subject to Greece if after Rome had received the Law of the Twelve Tables they had sent to Greece to know what the Law was in some Special Case The Statute call'd Ordinatio pro Statu Hiberniae made at Notingham the 17th of Edward the First and to be found in Pultons Collection pag. 76. Edit Lond. 1670. was certainly never Received or of Force in Ireland This is Manifest from the very first Article of that Ordnance which Prohibits the Iustice of Ireland or others the Kings Officers there to Purchase Land in that Kingdom or within their respective Balliwicks without the Kings Licence on pain of Forfeitures But that this has ever been Otherwise and that the Lords Justices and other Officers here have Purchas'd Lands in Ireland at their own Will and Pleasure needs no Proof to those who have the least knowledge of this Country Nor does it appear by any Inquisition Office or other Record that any one ever Forfeited on that Account Moreover 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 which appears as well from the Preamble to the said Ordinance as from this Observation likewise That King Edward the First held no Parliament in the 17th year of his Reign Or if this were a Parliament this Ordinatio pro Statu Hiberniae is the only Act thereof that is Extant But 't is very improbable that only this single Ordinance should Appear if any such Parliament were call'd together Thirdly As to the Staple-Act 2
Bench of Ireland to the Kings Bench of England But to this I answer 1. That 't is the Opinion of several Learned in the Laws of Ireland That this Removal of a Judgment from the Kings Bench of Ireland by Writ of Error into the Kings Bench of England is founded on an Act of Parliament in Ireland which is lost amongst a great number of other Acts which we want for the space of 130 years at one time and of 120 at another time as we have noted before pag. 65. But it being only a General Tradition that there was such an Act of our Parliament we only offer it as a Surmise the Statute it self does not appear 2. Where a Judgment in Ireland is Removed to be Revers'd in England the Judges in England ought and always do judge according to the Laws and Customs of Ireland and not according to the Laws and Customs of England any otherwise than as these may be of Force in Ireland but if in any thing the two Laws differ the Law of Ireland must prevail and guide their Judgment And therefore in the Case of one Kelly Removed to the Kings Bench in England in the beginning of King Charles the First one Error was assigned that the Praecipe was of Woods and Underwoods which is a manifest Error if brought in England but the Judges finding the Use to be Otherwise in Ireland judged it No Error So in Crook Charles fol. 511. Mulcarry vers Eyres Error was assigned for that the Declaration was of one hundred Acres of Bogg which is a word not known in England but 't was said It was well enough understood in Ireland and so adjudged No Error From whence I conceive 't is manifest that the Jurisdiction of the Kings Bench in England over a Judgment in the Kings Bench of Ireland does not proceed from any Subordination of one Kingdom to the other but from some other Reason which we shall endeavour to make out 3. We have before observed That in the Reign of K. Henry the Third Gerald Fitz-Maurice Lord Justice of Ireland sent four Knights to know what was held for Law in England in the Case of Coparceners The Occasion of which Message as before we have noted out of the Kings Rescript was because the Kings Justice of Ireland was ignorant what the Law was We may reasonably imagine that there were many Messages of this kind for in the Infancy of the English Government it may well be supposed that the Judges in Ireland were not so deeply versed in the Laws of England This occasioned Messages to England Before Judgment given in Ireland to be inform'd of the Law And After Decrees made Persons who thought themselves aggrieved by Erroneous Judgments apply'd themselves to the King in England for Redress Thus it must be that Writs of Error unless they had their Sanction in Parliament became in use Complaints to the King by those that thought themselves injur'd increased and at last grew into Custom and obtain'd the Force of Law Perhaps it may be Objected That if the Judges of the Kings Bench in England ought to Regulate their Judgment by the Customs of Ireland and not of England it will follow that this Original which we assign of Writs of Error to England is not right I Answer That this may be the Primary Original and yet consist well enough with what we have before laid down For tho' the Common Law of England was to be the Common Law of Ireland and Ireland at the beginning of its English Government might frequently send into England to be inform'd about it yet this does not hinder but Ireland in a long Process of Time may have some smaller Customs and Laws of its own gradually but insensibly crept into Practice that may in some measure differ from the Customs and Practice of England and where there is any such the Judges of England must regulate their Sentence accordingly tho' the first Rise of Writs of Error to England may be as we have here suggested In like manner where the Statute-Law of Ireland differs from that of England the Judges of England will regulate their Judgments by the Statute-law of Ireland This is the constant Practice and notoriously known in Westminster-Hall From which it appears that removing a Judgment from the Kings Bench of Ireland to the Kings Bench of England is but an Appeal to the King in his Bench of England for his Sense Judgement or Exposition of the Laws of Ireland But of this more hereafter 4. When a Writ of Error is Returned into the Kings Bench of England Suit is made to the King only The Matter lies altogether before Him and the Party complaining applies to No Part of the Political Government of England for Redress but to the King of Ireland only who is in England That the King only is sued to our Law-Books make Plain This Court is call'd Curia Domini Regis and Aula Regia because the King used to sit there in Person as Lambard tells us And every Cause brought there is said to be coram Domino Rege even at this very day Cooke 4 Inst. p. 72. Therefore if a Writ be returnable coram nobis ubicunque fuerimus 't is to be Return'd to the Kings Bench. But if it be Returnable coram Iusticiariis nostris apud Westm. 't is to be Return'd into the Common Pleas. This Court as Glavnil and other Antients tells us used to Travel with the King where-ever he went And Fleta in describing this Court says Habet Rex Curiam suam Iusticiarios suos coram quibus non alibi nisi coram semet ipso c. falsa Iudicia Errores revertuntur Corriguntur The King then as Britton says having Supream Jurisdiction in his Realm to judge in all Causes whatsoever therefore it is that Erroneous Iudgments were brought to him out of Ireland But this does not argue that Ireland is therefore Subordinate to England for the People of Ireland are the Subjects of the King to whom they Appeal And 't is not from the Country where the Court is held but from the Presence and Authority of the King to whom the People of Ireland have as good a Title as the People of England that the Praeeminence of the Iurisdiction does flow And I question not but in former times when these Courts were first Erected and when the King Exerted a greater Power in Judicature than he does now and he used to sit in his own Court that if he had Travell'd into Ireland and the Court had follow'd him thither Erroncous Judgments might have been removed from England before him into his Court in Ireland for so certainly it must be since the Court Travell'd with the King From hence it appears that all the Jurisdiction that the Kings Bench in England has over the Kings Bench in Ireland arises only from the Kings Presence in the former And the same may be said of the Chancery in England if it will assume
pag. 47. And in Pilkington's Case aforemention'd Fortescue declared That the Land of Ireland is and at all times hath been a Dominion Separate and Divided from England How then can the Realms of England and Ireland being Distinct Kingdoms and Separate Dominions be imagin'd to have any Superiority or Iurisdiction the one over the other 'T is absurd to fancy that Kingdoms are Separate and Distinct meerly from the Geographical Distinction of Territories Kingdoms become Distinct by Distinct Iurisdictions and Authorities Legislative and Executive and as Rex est qui Regem non habet so Regnum est quod alio non Subjicitur Regno A Kingdom can have no Supream 't is in it self Supream within it self and must have all Jurisdictions Authorities and Praeeminencies to the Royal State of a Kingdom belonging or else 't is none And that Ireland has all these is declared in the Irish Stat. 33 Hen. VIII c. 1. The chief of these most certainly is the Power of Making and Abrogating its own Laws and being bound only by such to which the Community have given their Consent Sixthly It is against the Kings Prerogative that the Parliament of England should have any Co-ordinate Power with Him to introduce New Laws or Repeal Old Laws Established in Ireland By the Constitution of Ireland under Poyning's Act the King's Prerogative in the Legislature is advanced to a much higher Pitch than ever was Challenged by the Kings in England and the Parliament of Ireland stands almost on the same bottom as the King does in England I say almost on the same Bottom for the Irish Parliament have not only a Negative Vote as the King has in England to whatever Laws the King and his Privy Councils of both or either Kingdom shall lay before them but have also a Liberty of Proposing to the King and his Privy Council here such Laws as the Parliament of Ireland think expedient to be pass'd Which Laws being thus Proposed to the King and put into form and Transmitted to the Parliament here according to Poyning's Act must be Pass'd or Rejected in the very Words even to a Tittle as they are said before our Parliament we cannot alter the least Iota If therefore the Legislature of Ireland stand on this Foot in relation to the King and to the Parliament of Ireland and the Parliament of England do Remove it from this Bottom and Assume it to themselves where the Kings Prerogative is much Narrower and as it were Reversed for there the King has only a Negative Vote I humbly conceive 't is an Incroachment on the Kings Prerogative But this I am sure the Parliament of England will be always very Tender of and His Majesty will be very loth to have such a Precious Jewel of his Crown handled rufly The Happiness of our Constitutions depending on a Right Temperament between the Kings and the Peoples Rights Seventhly It is against the Practice of all former Ages Wherein can it appear that any Statute made in England was at any time since the Reign of Henry the Third allowed and put in practice in the Realm of Ireland without the Authority of the Parliament of Ireland Is it not manifest by what foregoes that from the Twentieth of King Henry the Third to the Thirteenth of Edward the Second and from thence to the Eighteenth of Henry the Sixth and from thence to the Thirty-Second of Henry the Sixth and from thence to the Eighth of Edward the Fourth and from thence to the Tenth of Henry the seventh there was special care taken to Introduce the Statutes of England such of them as were necessary or convenient for this Kingdom by degrees and always with Allowance and Consent of the Parliament and People of Ireland And since the General Allowance of all the English Acts and Statutes in the Tenth of Henry the Seventh there have several Acts of Parliament which were made in England in the Reigns of all the Kings from that Time Successively to this very Day been particularly Receiv'd by Parliament in Ireland and so they become of force here and not by reason of any General Comprehensive words as some Men have lately fancied For if by General Comprehensive Words the Kingdom of Ireland could be bound by the Acts of Parliament of England what needed all the former Receptions in the Parliament of Ireland or what use will there be of the Parliament of Ireland at any time If the Religion Lives Liberties Fortunes and Estates of the Clergy Nobility and Gentry of Ireland may be dispos'd of without their Privity and Consent what Benefit have they of any Laws Liberties or Priviledges granted unto them by the Crown of England I am loth to give their Condition an hard Name but I have no other Notion of Slavery but being Bound by a Law to which I do not Consent Eighthly 'T is against several Resolutions of the Learned Iudges of former times in the very Point in Question This is manifest from what foregoes in the Case of the Merchants of Waterford Pilkington's Case Prior of Lanthony's Case c. But I shall not here inlarge farther thereon Ninthly The Obligation of all Laws having the same Foundation if One Law may be Imposed without Consent any Other Law whatever may be Imposed on us Without our Consent This will naturally introduce Taxing us without our Consent and this as necessarily destroys our Property I have no other Notion of Property but a Power of Disposing my Good as I please and not as anotheâ—… shall Command Whatever another may Rightfully take from me without my Consent I have certainly no Property in To Tax me without Consent is little better if at all than down-right Robbing me I am sure the Great Patriots of Liberty and Property the Free Peo Ple of England cannot think of such a thing but with Abhorrence Lastly The People of Ireland are left by this Doctrine in the Greatest Confusion and Uncertainty Imaginable We are certainly bound to Obey the Supream Authority over us and yet hereby we are not permitted to know Who or What the same is whether the Parliament of England or that of Ireland or Both And in what Cases the One and in what the Other Which Uncertainty is or may be made a Pretence at any time for Disobedience It is not impossible but the Different Legislatures we are subject to may Enact Different or Contrary Sanctions Which of these must we obey To conclude all I think it highly Inconvenient for England to Assume this Authority over the Kingdom of Ireland I believe there will need no great Arguments to convince the Wise Assembly of English Senators how inconvenient it may be to England to do that which may make the Lords and People of Ireland think that they are not Well Used and may drive them into Discontent The Laws and Liberties of England were granted above five hundred years ago to the People of Ireland upon their Submissions to the