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
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
's Time Knights of the Shire Citizens and Burgesses were Elected in the Shires Cities and Burroughs of Ireland to serve in Parliament in England and have so served accordingly For amongst the Records of the Tower of London Rot. Claus. 50. Edw. 3. Parl. 2. Membr 23. We find a Writ from the King at Westminster directed to Iames Butler Lord Justice of Ireland and to R. Archbishop of Dublin his Chancellour requiring them to issue Writs under the Great Seal of Ireland to the several Counties Cities and Burroughs for satisfying the Expences of the Men of that Land who last came over to serve in Parliament in England And in another Roll the 50th of Edw. III. Membr 19. On Complaint to the King by Iohn Draper who was Chosen Burgess of Cork by Writ and served in the Parliament of England and yet was deny'd his Expences by some of the Citizens Care was taken to re-imburse him If from these last mention'd Records it be concluded that the Parliament of England may Bind Ireland it must also be Allow'd that the People of Ireland ought to have their Representatives in the Parliament of England And this I believe we should be willing enough to embrace but this is an Happiness we can hardly hope for This sending of Representatives out of Ireland to the Parliament in England on some occasions was found in process of time to be very Troublesome and Inconvenient and this we may presume was the Reason that afterwards when Times were more settled we fell again into our old Track and regular course of Parliaments in our own Country and hereupon the Laws afore-noted pag. 64. were Enacted Establishing that no Law made in the Parliament of England should be of force in Ireland till it was Allow'd and Publish'd in Parliament here I have said before pag. 85. that I would only consider the more Antient Precedents that are offered to prove That Acts of England particularly Naming Ireland should bind us in this Kingdom and indeed it were sufficient to stop here for the Reason above alledged However I shall venture to come down lower and to enquire into the Modern Precedents of English Acts of Parliament alledged against us But still with this Observation That 't is these we Complain against as Innovations and therefore they ought not to be brought in Argument against us I do therefore again assert that before the Year 1641. there was no Statute made in England introductory of a New Law that interfered with the Right which the People of Ireland have to make Laws for themselves except only those which we have before mentioned and which we have discuss'd at large and submit to the Readers â—…udgment But in the Year 1641. and afterwards in Cromwel's time and since that in King Charles II. and again very lately in King William's Reign some Laws have been made in England to be of Force in Ireland But how this came to pass we shall now Enquire In the 17th Year of K. Charles I. which was in the Year 1642. there were three or four Acts of Parliament made in England for incouraging Adventurers to raise Money for the speedy suppression of the Horrid Rebellion which broke out in Ireland the 23d of October 1641 The Titles of these Acts we have in Pulton's Collection of Statutes But with this Remark That they are made of no Force by the Acts of Setlement and Explanation passed in King Charles Il's time in the Kingdom of Ireland So that in these we are so far from finding Precedents for England's Parliament binding Ireland that they plainly shew that the Parliament of Ireland may Reâ—… an Act passed in England in relation to the Affairs of Ireland For 't is very well known that Persons who were to have Interests and Titles in Ireland by virtue of those Acts passed in England are cut off by the Acts of Settlement and Explanation And indeed there is all the Reason in the World that it should be so and that Acts made in a Kingdom by the Legal Representatives of the People should take place of those made in another Kingdom But however it will be said that by those Acts 't is manifest that England did presume they had such a Right to pass Acts binding Ireland or else they had ne'er done it To which I answer That considering the condition Ireland was in at that time viz. under an horrid Intestine Rebellion flaming in every corner of the Kingdom 't was impossible to have a Parliament of our own yet it was absolutely necessary that something should be done towards suppressing the Violences then raging amongst us And the only means could then be practised was for the Parliament of England to interpose and do something for our Relief and Safety these were the best Assurances could be had at that juncture But when the Storm was over and the Kingdom quieted we see new Measures were taken in a Legal Parliament of our own As to what was done for Ireland in the Parliament of England in Cromwel's time besides the Confusion and Irregularity of all Proceeding in those days which hinders any of them to be brought into Precedent in these times We shall find also that then there were Representatives sent out of this Kingdom who sate in the Parliament of England which then was only the House of Commons We cannot therefore argue from hence that England may bind us for we see they allow'd us Representatives without which they rightly concluded they could not make Laws Obligatory to us I come now to King Charles the 2ds time And in it we shall find the following English Statutes made in which the Kingdom of Ireland is concerned The first is an Act against Importing Cattle from Ireland or other Parts beyond Seas It was only temporary by 18 Ch. 2. c. 2. but made perpetual 20 Ch. 2. c. 7. and 32 Ch. 2. c. 2. This Act however prejudicial to the Trade that was then carried on between Ireland and England does not properly Bind us more than it does any other Country of the World When any thing is Imported and Landed in England it becomes immediately subject to the Laws thereof so that herein we cannot be said properly to be bound Secondly The Acts against Planting Tobacco in England and Ireland 12 Ch. 2. c. 34. and 15 Ch. 2. c. 7. and 22 and 23 Ch. 2. c. 26 c. do positively Bind Ireland But there has never been an Occasion of Executing it here for I have not heard that a Rood of Tobacco was ever Planted in this Kingdom But however that takes not off the Obligation of the Law 'T is only want of our Consent that I urge against that I see no more Reason for sending a Force to Trample down an Acre of Tobacco in Ireland by these Statutes than there would be for Cutting down the Woods of Shelela were there an Act made in England against our Planting or Having Timber Thirdly The Act for
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
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
shall be Taken or Levy'd by Us or Our Heirs in Our Realm without the Good Will and Assent of Archbishops Bishops Earls Barons Knights Burgesses and other Freemen of the Land The like Liberties are specially Confirm'd to the Clergy the 14th of Edward the 3d. And were these Statutes and all other Statutes and Acts of the Parliament of England Ratified Confirmed and Adjudged by several Parliaments of Ireland to be of Force within this Realm And shall the People of Ireland receive no Benefit by those Acts Are those Statutes of Force in England only And can they add no Immunity or Priviledge to the Kingdom of Ireland when they are received there Can the King and Parliament make Acts in England to Bind his Subjects of Ireland without their Consent And can he make no Acts in Ireland with their Consent whereby they may receive any Priviledge or Immunity This were to make the Parliaments of Ireland wholly Illusory and of no Effect If this be Reasonable Doctrine To what end was Poyning's Law in Ireland that makes all the Statutes of England before that in Force in this Kingdom This might as well have been done and again undone when they please by a single Act of the English Parliament But let us not make thus light of Constitutions of Kingdoms 't is Dangerous to those who do it 't is Grievous to those that suffer it Moreover Had the King or his Council of England in the 10th year of Hen. VII in the least dreamt of this Doctrine to what end was all that strict Provision made by Poyning's Act Irish Stat. cap. 4. That no Act of Parliament should pass in Ireland before it was first Certified by the Chief Governour and Privy Council here under the Broad Seal of this Kingdom to the King and his Privy Council in England and received their Approbation and by them be remitted hither under the Broad Seal of England here to be pass'd into a Law The design of this Act seems to be the Prevention of any thing passing in the Parliament of Ireland Surreptitiously to the Prejudice of the King or the English Interest of Ireland But this was a needless Caution if the King and Parliament of England had Power at any time to revoke or annul any such Proceedings Upon this Act of Poynings many and various Acts have pass'd in Ireland relating to the Explanation Suspension or farther Corroboration thereof in divers Parliaments both in Henry the Eighth's Phil. Mary's and Q. Eliz. Reigns for which see the Irish Statutes All which shew that this Doctrine was hardly so much as Surmised in those Days however we come to have it raised in these Latter Times Fourthly 'T is against several Charters of Liberties Granted unto the Kingdom of Ireland This likewise is clearly made out by what foregoes I shall only add in this place That in the Patent-Roll of the 17 Rich. 2. m. 34. de Confirmatione There is a Confirmation of several Liberties and Immunities granted unto the Kingdom and People of Ireland by Edw. III. The Patent is somewhat long but so much as concerns this Particular I shall render verbatim as I have it Transcribed from the Roll by Sir William Doâ—…vile Attorny General in Ireland during the whole Reign of King Charles II. Rex omnibus c. Salutem Inspeximus Literas Patentes Domini Edwardi nuper Regis Angliae Avi nostri fact in haec verba Edwardus Dei Gra. Rex Angliae Franciae Dominus Hiberniae Archiepiscopis Episcopis Abbatibus Prioribus Ministris nostris tam Majoribus quam Minoribus quibuscunque aliis de Terra nostra Hiberniae fidelibus nostris ad quos Praesentes Literae pervenerint Salutem Quia c. Nos haec quae sequuntur Ordinanda Duximus firmiter observanda c. Imprimis vizt Volumus Praecipimus quod Sancta Hibernicana Ecclesia suas Libertates Liberas Consuetudines illesas habeat eis Libere gaudeat Utatur Item volumus praecipimus quod nostra ipsius Terrae Negotia presertim Majora Ardua in Consiliis per Peritos Consiliaros nostros ac Praelatos Magnates quosdam de Discretioribus Probioribus Hominibus de partibus vicinis ubi ipsa Concilia teneri Contigerit propter hoc evocandos in Parliamentis vero per ipsos Conciliaros nostros ac Praelatos Proceres aliosque de terra predicta prout Mos Exegit secundum Iusticiam Legem Consuetudinem Rationem tractentur deducantur fideliter timore favore odio aut praetio post positis discutiantur ac etiam terminentur c. In Cujus Rei Testimonium has Literas nostras fieri fecimus Patentes Teste meipso Apud Westminst 25 die Octob. Anno Regni nostris Angliae 31 Regni vero Franciae 18. Nos autem Ordinationes Voluntates Praecepta Praedicta ac omnia alia singula in Litteris praedictis Contenta Rata Habentes Grata Ea pro nobis Haeredibus nostris quantum in nobis est Acceptamus Approbamus Ratificamus Confirmamus prout Literae praedictae rationabiliter testanter In Cujus c. Test. Reg. apud Westminst 26 die Iunii Fifthly It is inconsistent with the Royalties and Praeeminence of a Separate and Distinct Kingdom That we are thus a Distinct Kingdom has been clearly made out before 'T is plain the Nobility of Ireland are an Order of Peers clearly Distinct from the Peerage of England the Priviledges of the one extend not into the other Kingdom a Lord of Ireland may be Arrested by his Body in England and so may a Lord of England in Ireland whilst their Persons remain Sacred in their respective Kingdoms A Voyage Royal may be made into Ireland as the Year-Book 11 Hen. 4. 17. fol. 7. and Lord Cook tells us and King Iohn in the 12th year of his Reign of England made a Voyage Royal into Ireland and all his Tenants in Chief which did not attend him in that Voyage did pay him Escuage at the Rate of Two Marks for every Knights Fee which was imposed super Praelatis Baronibus pro Passagio Regis in Hibernia as appears by the Pipe-Roll Scutag 12 Iohannis Regis in Scaccario Angl. Which shews that we are a Compleat Kingdom within our selves and not little better than a Province as some are so Extravagant as to Assert none of the Properties of a Roman Province agreeing in the least with our Constitution 'T is Resolved in Sir Richard Pembrough's Cafe in the 44th of Edw. III. That Sir Richard might lawfully refuse the King to serve him as his Deputy in Ireland and that the King could not Compel him thereto for that were to Banish him into another Kingdom which is against Magna Charta Chap. 29. Nay even tho Sir Richard had great Tenures from the King pro servitio Impenso Impendendo for that was said must be understood within the Realm of England Cooks 2d Inst.
Crown of England with a Design to make them Easie to England and to keep them in the Allegiance of the King of England How Consistent it may be with True Policy to do that which the People of Ireland may think is an Invasion of their Rights and Liberties I do most humbly submit to the Parliament of England to Consider They are Men of Great Wisdom Honour and Iustice and know how to prevent all future Inconveniencies We have heard Great Out-cries and deservedly on Breaking the Edict of Nantes and other Stipulations How far the Breaking our Constitution which has been of Five Hundred years standing exceeds that I leave the World to judge It may perhaps be urg'd That 't is convenient for the State of England that the Supream Council thereof should make their Jurisdiction as Large as they can But with Submission I conceive that if this Assumed Power be not Iust it cannot be convenient for the State What Cicero says in his Offices Nihil est Utile nisi idem sit Honestum is most certainly true Nor do I think that 't is any wise necessary to the Good of England to Assert this High Jurisdiction over Ireland For since the Statutes of this Kingdom are made with such Caution and in such Form as is prescribed by Poyning's Act 10 H. 7. and by the 3d and 4th of Phil. and Mar. and whilest Ireland is in English hands I do not see how 't is possible for the Parliament of Ireland to do any thing that can be in the least prejudicial to England But on the other hand If England assume a Iurisdiction over Ireland whereby they think their Rights and Liberties are taken away That their Parliaments are rendred meerly nugatory and that their Lives and Fortunes Depend on the Will of a Legislature wherein they are not Parties there may be ill Consequences of this Advancing the Power of the Parliament of England by breaking the Rights of another may in time have ill Effects The Rights of Parliament should be preserved Sacred and Inviolable wherever they are found This kind of Government once so Universal all over Europe is now almost Vanished from amongst the Nations thereof Our Kings Dominions are the only Supporters of this noble Gothick Constitution save only what little remains may be found thereof in Poland We should not therefore make so light of that sort of Legislature and as it were Abolish it in One Kingdom of the Three wherein it appears but rather Cherish and Encourage it wherever we meet it FINIS Introduction and Occasion of this Disquisition * Bishop of Derry in the House of Lords and Prohibiting Exportation of our Woollen Manufacture in the House of Commons Subject of this Enquiry Britain's first Expedition into Ireland * Giraldus Cambr. Hib. Expug Lib. I. C. 1 Hen. II. comes into Ireland Irish submit to him Ireland whether ever Conquer'd * Mr. Selden will not allow that ever H. 2. used this Stile Tit. Hon. Par. 2. G. 5. Sect. 26. Suppressing Rebellions whether a Conquest * Bishop of Salisbury's Pastoral Letter What Title is obtain'd by Conquest No Title gain'd by an Unjust Conquest What Title by a Just Conquest None over the Assisters in the Conquest None over the Non-Opposers Just Conquerour intitled to the Lives of the Opposers Just Conquerour how far impower'd over the Posterity of the Opposers How far over their Estates Practise of Conquerors otherwise Concessions granted by a Conquerour whether Obligatory What Concessions have been made from the Crown of England to the Kingdom of Ireland By Henry II. Irish Modus Tenendi Parliamentum a Tit. Hon. Par. 2. C. 5. Sect. 26. Edit Lond. An. 1672 b Against Cook 's 4th Instit C. 76. Parliaments very early in Ireland a Against the 4th Inst. c. 76. p. 249. a Togograph Hibern l 3. c. 18 Hib. Expug l. 11. c. 33 34. b Hoveden Annal parspost p. 302. Brampton Chr. Col. 1071. Knighton de Even Angl. l. c. c. 10 col 2394 2395. Pol. Virg. Hist. Angl. l. 13. Radul de Diceto Walsingbam c. Original Compact for Ireland King Iohn made King of Ireland By this Ireland made an Absolute separate Kingdom a Seldens Tit. Hon. Par. 1. C. 8 Sect. 5. Usher Archbibishop of Armagh of the Religion of the Antient Irish Cap. 11. b Act. Concil Constant. Ses. 28. MS. in Bib. Reg. not in the Printed Acts. Ireland in what sense Annex'd to England King Iohn comes a second time into Ireland The People submit to him Concessâ—… from Hen. III. a Pryn against the 4th Inst. c. 76. p. 250. Pa. 1 H. III. m. 13. intus Record out of Mr. Petyt of the Antiquity of Parliaments in Ireland Rot. 38 H. III in 4. Hibernta Farther Concessions from Hen. III b Against Cook 's 4th Instit p. 252. Claus. 12 H. III in 8 de Legibus Consuetudinibus Observandis in Hibern Recapitula tion a Fourth Instit b Against the 4th Instit. c Placita Parliamentaria English Laws Established in Ireland Law of Parliament Common Law Statute Law Statute-Law of England from the Norman Conquest to Hen. III. Law of Edward the Confessor a Selden 〈◊〉 speciâ—… ad eadmerum pag 17â—… Of Wil. Conq. b Leges W. 1. Cap. 63. apud Selden in notâ—…â—…d eadmerum p. 192. Of Hen. I. c Vid. Selden ut supra Of Hen II. Of K. John d Mat. Paris ad an 1215. pag. 253. c. Of Hen. III. a Cook 's Pref. to the 2d Inst. Engl. Statutes since the 9th Hen. III. introduced in Ireland Statutes of Merton Marlebr Westm. Gloucest Vid. Lib. Rubr. Scaccar Dubl a Annals of Ireland at the End of Camden's Britan. Edit 1637. page 196 197 c. b Ibid. p. 160. Pryn against the 4th Instit. Chap 76. All English Statutes before the 10th of Hen. VII in force in Ireland a Cook 's 4th Instit. Cap. 76. P. 351. b Vid. Irish Stat. English Statutes Declaratory of the Common Law in force in Ireland English Acts introductive of a New Law not of force in Ireland a Irish Stat. 13 C. 2. c. 2. 13 C. 2. c. 3. 14 15 C. 2. c. 1. 14 15 C. 2. c. 19. 17 18 C. 2. c. 3. 17. 18 C. 2. c. 11. English Stat. 12 C. 2. c. 12. 12 C. 2. c. 3. 12 C. 2. c. 14 12 C. 2. c. 24. 12 C. 2. c. 33. 16 17 C. 2. c. 5. * For we had two several Acts transmitted to us at different times to this very purpose One we rejected in the Lord Sydâ—…eys Government t'other we pass'd under the Lord Capell Objections Answer'd Objection from the Stat. of Rape Object English Statutes comprehending Ireland by general Words Act against Appeals to Rome Acts of First Fruits and Faculties a Title in the English Statutes is No Imposition shall be paid to the Bishop of Rome High-Commission-Court By the same Reason Scotland may be bound English Statutes naming Ireland Or dinatio pre Statu Hiberniae Staple-Act Merchants of Waterford's Case Members from Ireland in the Parliament of England Modern Acts of the Parliament of England naming Ireland Acts in favour of Adventurers in 1641. Acts in Cromwels time Cattle Act. Tobacco Act. Navigation Act. Note Exporting Wooll from Ireland is made penal by the Irish. Stat. 13 Hen. 8. c. 2. 28 Hen. 8. c. 17. But both these Statutes are obsolete The like may we observe of the 11 Eliz. c. 10. 13 El. c. 4. English Acts Binding Ireland since King William's Reign Act for the Protestant Irish Clergy Act against Commerce with France Act for Security of the Protestants of Ireland Act appointing New Oaths The Opinions of the Lawyers thereon Lord Chief Justice Cook 's Opinion Discuss'd a 20 H. 6. 8. Pilkington ' s Case 32 H. 6. 25. 20 Eliz. Dyer 360. Flowd Com. 360. Opinions of other Judges in Favour of Ireland Pilkiâ—…s Case a This Statute we may reckon amongst the number of those that are lost during the long Intervals of our Irish Acts noted before page 65. to be aboue 118 Years Merchants of Waterfords Case Prior of Lanthonys Case a Rot. Parl. An. 8. H. 6. in ult Argument from Acts of Succession and Recognition pass'd in Ireland Ireland's State Ecclesiastical Independent Argument from a Record in Reyley a 14 Ed. 2. Par. 2. Memb 21 Int. Objection drawn from a Writ of Error Declaration in the Irish Act of Faculties Farther Reasons offered in behalf of Ireland England's Title to Ireland by Purchase Object Ireland prejudicial to England's Trade therefore to be Bound Object Ireland a Colony Against the Rights of Mankind Consent only gives Law force Against the Common Law of England Against the Statute Law both of England and Ireland a See before pag. 65. b Pultons Col. Eng. Stats Edit 1670. pag. 63. c ibid. page 75. d ibid. page 113. e 10 H. 7. c. 22 a 28 H 8. c. 4. 28 H. 8. c. 20. 3 4 Ph. M. c. 4. 11 Eliz. Ses. 2. c. 1. 11 Eliz. Ses. 3. c. 8. Against several Concessions made to Ireland Inconsistent with the Royalties of a Kingdom Against the Kings Prerogative Against the Practice of former Ages Against the Resolution of Judges Destroys Property Greates Confusion Inconvenient to England to Assume this Power