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A51131 The case of Ireland's being bound by acts of Parliament in England stated by William Molyneux. Molyneux, William, 1656-1698. 1698 (1698) Wing M2402; ESTC R30063 64,004 194

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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
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