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
I come in the third Place to enquire What Title Conquest gives by the Law of Nature and Reason And in this particular I conceive that if the Aggressor or Insulter invades a Nation Unjustly he can never thereby have a Right over the Conquered This I suppose will be readily granted by all men If a Villain with a Pistol at my Brest makes me convey my Estate to him no one will say that this gives him any Right And yet just such a Title as this has an Unjust Conquerour who with a Sword at my Throat forces me into Submission that is forces me to part with my Natural Estate and Birth-right of being govern'd only by Laws to which I give my Consent and not by his Will or the Will of any other Let us then suppose a Just Invader one that has Right on his side to Attack a Nation in an Hostile manner and that those who oppose him are in the Wrong Let us then see what Power he gets and over whom First 'T is plain he gets by his Conquest no Power over those who Conquered with him they that fought on his side whether as private Soldiers or Commanders cannot suffer by the Conquest but must at least be as much Freemen as they were before If any lost their Freedom by the Norman Conquest supposing King William the First had Right to Invade England it was only the Saxons and Britains and not the Normans that Conquered with him In like manner supposing Hen. II. had Right to Invade this Island and that he had been opposed therein by the Inhabitants it was only the Antient Race of the Irish that could suffer by this Subjugation the English and Britains that came over and Conquered with him retain'd all the Freedoms and Immunities of Free-born Subjects they nor their Descendants could not in reason lose these for being Successful and Victorious for so the state of Conquerours and Conquered shall be equally Slavish Now 't is manifest that the great Body of the present People of Ireland are the Progeny of the English and Britains that from time to time have come over into this Kingdom and there remains but a meer handful of the Antient Irish at this day I may say not one in a thousand So that if I or any body else claim the like Freedoms with the Natural Born Subjects of England as being Descended from them it will be impossible to prove the contrary I conclude therefore That a Just Conquerour gets no Power but only over those who have Actually Assisted in that Unjust Force that is used against him And as those that joyned with the Conquerour in a Just Invasion have lost no Right by the Conquest so neither have those of the Country who Oppos'd him not This seems so reasonable at first Proposal that it wants little Proof All that gives Title in a Just Conquest is the Opposers using Brutal Force and quitting the Law of Reason and using the Law of Violence whereby the Conquerour is entitled to use him as a Beast that is Kill him or Enslave him Secondly Let us consider what Power that is which a Rightful Conquerour has over the Subdued Opposers And this we shall find extends little farther than over the Lives of the Conquer'd I say little farther than over their Lives for how far it extends to their Estates and that it extends not at all to Deprive their Posterity of the Freedoms and Immunities to which all Mankind have a Right I shall shew presently That the Just Conquerour has an Absolute Power over the Lives and Liberties of the Conquer'd appears from hence Because the Conquer'd by putting themselves in a State of War by using an Unjust Force have thereby forfeited their Lives For quitting Reason which is the Rule between Man and Man and using Force which is the way of Beasts they become liable to be destroy'd by him against whom they use Force as any savage wild Beast that is Dangerous to his Being And this is the Case of Rebels in a settled Commonwealth who forfeit their Lives on this Account But as for forfeiting their Estates it depends on the Municipal Laws of the Kingdom But we are now Enquiring what the Consequents will be between two Contesting Nations Which brings me to Consider how far a Just Conquerour has Power over the Posterity and Estates of the Conquer'd As to the Posterity they not having Joyn'd or Assisted in the Forcible Opposition of the Conquerours Iust Arms can lose no Benefit thereby 'T is unreasonable any Man should be punish'd but for his own fault Man being a free Agent is only Answerable for his own Demerits and as it would be highly Unjust to Hang up the Father for the Sons Offence so the Converse is equally Unjust that the Son shou'd suffer any Inconvenience for the Fathers Crime A Father hath not in himself a power over the Life or Liberty of his Child so that no Act of his can possibly forfeit it And tho we find in the Municipal Laws of particular Kingdoms that the Son loses the Fathers Estate for the Rebellion or other Demerit of the Father yet this is Consented and Agreed to for the Publick Safety and for deterring the Subjects from certain Enormous Crimes that would be highly prejudicial to the Commonwealth And to such Constitutions the Subjects are bound to submit having consented to them tho' it may be unreasonable to put the like in Execution between Nation and Nation in the State of Nature For in Settled Governments Property in Estates is Regulated Bounded and Determined by the Laws of the Common-wealth consented to by the People so that in these 't is no Injustice for the Son to lose his Patrimony for his Fathers Rebellion or other Demerit If therefore the Posterity of the Conquer'd are not to suffer for the Unjust Opposition given to the Victor by their Ancestors we shall find little place for any Power of the Conquerours over the Estates of the Subdued The Father by his Miscarriages and Violence can forfeit but his own Life he involves not his Children in his Guilt or Destruction His Goods which Nature that willeth the Preservation of all Mankind as far as possible hath made to belong to his Children to sustain them do still continue to belong to his Children 'T is true indeed it usually happens that Damage attends Unjust Force and as far as the Repair of this Damage requires it so far the Rightful Conquerour may invade the Goods and Estate of the Conquer'd but when this Damage is made up his Title to the Goods ceases and the Residue belongs to the Wife and Children of the Subdued It may seem a strange Doctrine that any one should have a Power over the Life of another Man and not over his Estate but this we find every day for tho' I may Kill a Thief that sets on me in the High-way yet I may not take away his Money for 't
'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
Encouraging Shipping and Navigation by express name Mentions and Binds Ireland and by the last Clause in the Act Obliges all Ships belonging thereto importing any Goods from our Foreign Plantations to touch first at England Fourthly The Acts Prohibiting the Exportation of Wooll from Ireland to any Country except to England do likewise strongly Bind us and by the 12 Car. 2. c. 32. it was made highly penal on us and by the 14th of Car. 2. c. 18. 't is made Felony To these three last Acts I must confess I have nothing to urge to take off their Efficacy Name us they do most certainly and Bind us so as we do not transgress them But how Rightfully they do this is the matter in Question This I am sure of that before these Acts in King Charles the Second's Time the Eldest of which is not over Thirty-Seven years there is not one positive full Precedent to be met with in all the Statute-Book of an English Act Binding the Kingdom of Ireland And on this Account we may venture to assert That these are at least Innovations on us as not being warranted by any former Precedents And shall Proceedings only of Thirty-Seven Years standing be urg'd against a Nation to Deprive them of the Rights and Liberties which they Enjoy'd for Five Hundred Years before and which were Invaded without and against their Consent and from that day to this have been constantly complain'd of Let any English Heart that stands so Iustly in Vindication of his own Rights and Liberties answer this Question and I have done I am now arriv'd at our Present Days under the Happy Government of His Majesty King WILLIAM the Third and I am sorry to reflect That since the late Revolution in these Kingdoms when the Subjects of England have more strenuously than ever Asserted their own Rights and the Liberty of Parliaments it has pleased them to bear harder on their Poor Neighbours than has ever yet been done in many Ages foregoing I am sure what was then done by that Wise and Just Body of Senators was perfectly out of Good Will and Kindness to us under those Miseries which our Afflicted Country of Ireland then suffered But I fear some Men have since that made use of what was then done to other Purposes than at first intended Let us now see what that was and consider the Circumstances under which it was done In the year 1689. when most oâ—… the Protestant Nobility Gentry and Clergy of Ireland were driven out of that Kingdom by the Insolencies and Barbarities of the Irish Papists who were then it Arms throughout the Kingdom and in all Places of Authority under King Iames newly Return'd to them out of France the only Refuge we had to fly to was in England where Multitudes continued for many Months destitute of all manner of Relief but such as the Charity of England afforded which indeed was very Munificent and never to be forgotten The Protestant Clergy of Ireland being thus Banish'd from their Benefices many of them Accepted such small Ecclesiastical Promotions in England as the Benevolence of well dispos'd Persons presented them with But this being directly contrary to a Statute in this Kingdom in the 17 and 18 of Charles the Second Cap. 10. Intituled An Act for Disabling of Spiritual Persons from holding Benefices or other Ecclesiastical Dignities in England or Wales and in Ireland at the same time The Protestant Irish Clergy thought they could not be too secure in avoiding the Penalty of the last mention'd Act and therefore Apply'd themselves to the Parliament of England and obtain'd an Act in the first year of King William and Queen Mary c. 29. Intituled An Act for the Relief of the Protestant Irish Clergy And this was the first Attempt that was made for Binding Ireland by an Act in England since his Majesty's Happy Accession to the Throne of these Kingdoms Afterwards in the same year and same Session Chap. 34. there pass'd an Act in England Prohibiting all Trade and Commerce with France both from England and Ireland This also binds Ireland but was during the Heat of the War in that Kingdom when 't was impossible to have a regular Parliament therein all being in the hands of the Irish Papists Neither do we complain of it as hindring us from corresponding with the King's Enemies for 't is the Duty of all Good Subjects to abstain from that But as Scotland tho' the King's Subjects Claims an Exemption from all Laws but what they Assent to in Parliament so we think this our Right also When the Banish'd Laity of Ireland observ'd the Clergy thus careful to secure their Properties and provide for the worst as well as they could in that Juncture when no other means could be taken by a Regular Parliament in Ireland they thought it likewise adviseable for them to do something in relation to their Concerns And accordingly they obtain'd the Act for the better Security and Relief of their Majesties Protestant Subjects of Ireland 1 W. and M. Ses. 2. c. 9. Wherein King Iames's Irish Parliament at Dublin and all Acts and Attainders done by them are declared void 'T is likewise thereby Enacted that no Protestant shall suffer any Prejudice in his Estate or Office by reason of his absence out of Ireland since December 25. 1685. and that there should be a Remittal of the Kings Quit-Rent from 25 December 1688. to the end of the War Thus the Laity thought themselves secure And we cannot wonder that during the Heat of a Bloody War in this Kingdom when it was impossible to Secure our Estates and Properties by a Regular Parliament of our own we should have recourse to this Means as the only which then could be had We concluded with our selves that when we had obtained these Acts from the Parliament in England we had gon a great way in securing the like Acts to be passed in a regular Parliament in Ireland whenever it should please God to re-establish us in our own Country For we well knew our own Constitution under Poynings Law That no Act could Pass in the Parliament of Ireland till approved of by the King and Privy Council of England And we knew likewise That all the Lords and others of his Majesties Privy Council in England are Members of the Lords or Commons House of Parliament there And that by obtaining their Assent to Acts of Parliament in Favour of the Irish Protestants they had in a manner pre-engaged their Assent to the like Bills when they should hereafter come before them as Privy Councellors in order to be regularly Transmitted to the Parliament of Ireland there to be passed into Laws of that Kingdom But instead of all this to meet with another Construction of what was done herein and to have it pleaded against us as a Precedent of our Submission and absolute Acquiescence in the Jurisdiction of the Parliaments of England over this Kingdom is what we complain
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-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
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.