original Contract for he saith that the King caused them to receive and swear to be governed by the Laws of England But in your next Precedent you seem to qualify the Severity of that King's Orders by what Sir Edward Cook says viz. That he settled the Laws of England in Ireland by the voluntary Acceptance and Allowance of the Nobility and Clergy pag. 29. And he did likewise allow them the Freedom of holding Parliaments in Ireland as a separate and distinct Kingdom from England Please to note that Sir Edward Cook wrote about Five Hundred Years after King Henry II. went into Ireland and about Four Hundred and Fifty after Matt. Paris wrote and you would now bring his Opinion against the constant Practice of the Parliaments of England for Five Hundred Years Besides you say p. 80 and 116. That Sir Edward Cooke was of Opinion that Ireland was to be governed by the Statute Laws made in England where it was specially named therein and in the last of these Pages you exclaim against him for this his Opinion I shall not examine your Quotations whether they agree with the Originals or no my Profession being not the Law I am not furnish'd with those Books nor do I think it much to the purpose what Sir Edward Cook saith in this matter yet I must take notice that you pen the Words Holding of Parliaments in Ireland in a different Character from the following Sentence As a separate and distinct Kingdom from England which gives me reason to suppose the last was vour to find out the Original did the Decision of this Controversy depend upon Sir Edward Cook 's Opinion Sir Edward Cook in this Case should have given a Transcript of that Grant and you should have transcribed it as you do afterwards the Modus how to hold their Parliaments pag. 29. and yet then there would have arose this Question Whether the Kings of England can legally exempt their English and British Subjects for so you call the People of Ireland pag. 20. from their Obedience to the Legislative Power of this Kingdom by any Charters or Grants whatsoever I am sure I never heard of any such Precedent but on the contrary it is charged as a Crime on the late King James in an Act made Primo G. M. Cap. 2. That he assumed and exercised a Power of dispencing with and suspending of Laws and the Execution of Laws without Consent of Parliament But here I see you will raise this Objection against my manner of expressing my self and say That when Grants are made by a King to any Country that doth submit it self to his Authority all Persons who shall afterwards settle themselves therein though before subject to other Laws are now â—o try therefore the People of England when they setled Ireland were to be governed by the Laws granted to Ireland to this I answer That the Constitution of the Government to which this Submission is made ought specially to be considered and then there will arise this 2d Question Whether a Submission made to the K. of England doth not include a Submission to the Legislative Authority of England I am apt to think it does and I believe it will appear by what follows in this Discourse that the Parliaments of England have ever been of the same Opinion But be this how it will Ireland you allow submitted it self on the Terms of being governed by the Laws of England so this Objection seems rather to be formal than material as to the Subject we are upon This Modus you say pag. 30. For the most part agrees with the Modus tenendi Parl ' in England which is a loose Argument for you know that one Word in a Grant may alter the whole Sence and we both agree that the Parliament of Ireland may make Laws but the Question is whether Ireland is not bound by the Statute Laws of England as all our Plantations are Yet after all you confess pag. 30. That this very Modus though strenuously asserted by Sir Edward Cook is disputed by Mr. Selden and Mr. Pryn two learned Antiquaries will you then bring it as an Argument against the constant Practice of the Parliament of England for Five Hundred Years past But grant it had not been disputed at all I do not see what it will make for your purpose One Reason you say why Mr. Pryn doubts this Modus to be sent over by King Henry the Second is because there were no Sheriffs established in Ireland in Henry the Second's Time pag. 31. Yet the Word Vicecomes is in it all you answer is pag. 32. That perhaps the King intended to constitute Sheriffs and yet the first you find establish'd there were in the Days of King John which was about Fifty Years after and you say pag. 30. That where this Form was altered from the Modus tenendi Parl ' in England 't is only to fit it the better for the Kingdom of Ireland if so 't is strange the Word Vice-comes had not been left out seeing there was then no such Officer in Ireland But pag. 36. you are pleased to allow that there is reason to doubt the certainty of this Record unless we will depend on the Credit of the Bishop of Meath therefore you return to your former Argument viz. that there were Parliaments early in the Kingdom of Ireland which may be probable but whether the Parliament of England then lost their Power there is the thing I dispute and you do not prove You say pag. 36 37. That Henry the Second held a General Council of the Clergy at Cashall wherein he rectifyed many Abuses in the Church and established sundry Ecclesiastical Laws agreeable to those in the Church of England this in England we call a Convocation not a Parliament You say pag. 37. Pari desiderio Regis Imperio se subjiciunt omnibus igitur hoc modo consummatis in Consilio habito apud Lismore Leges Anglicae ab omnibus sunt gratantur receptae juratoriâ cautione praestitâ confirmatae saith Matth. Paris from hence you infer pag. 38. That they should enjoy the like Liberties and Immunities and be governed by the same mild Laws both Civil and Ecclesiastical as the People of England and I see no Reason to the contrary all we differ in is whether they were thereby discharged from being subject to the Statute Laws made in England this seems contrary to the Judgment of the Parliament in Henry the Third's Days to whom Matth. Paris was Historiographer else certainly they would not have made Laws to bind Ireland as I shall by and by show they did You proceed pag. 38. thus From all which it is manifest that there were no Laws imposed upon the People of Ireland by any Authority of the Parliament of England nor any Laws introduced into that Kingdom by King Henry the Second but by the Consent and Allowance of the People of Ireland and the Reason you give for it is this For both the
before in Ireland by a Statute in that Kingdom 17 18 Car. 2. To free themselves from the Penalty of this Act they thought it necessary to procure the fore-mentioned Statute which the Parliament of England I perceive kindly granted them and they thought it sufficient to continue them their Rights to their Promotions in Ireland notwithstanding that Irish Act. So that here you see in Fact the Opinion of the Clergy of Ireland touching the Powers in dispute between us notwithstanding any Gloss you may think fit to put on it But now the Act is before me let us see what were the Thoughts of the Parliament of England when they made that Law whether they thought it would be so precarious as to be in the discretion of the Parliament of Ireland to allow it because you seem to infer that it was so pag. 107. when you say The Protestant Irish Clergy thought they could not be too secure in avoiding the Penalty of the Irish Act and therefore applyed themselves to the Parliament of England and obtained this Act. No sure the Parliament thought it binding else it had argued Levity in them to make a Law which they thought they wanted Power to see put in Execution But let the Law it self speak the Sence of the Legislators I must be forced to transcribe the words of the Statute which are these That no Ecclesiastical Person of what dignity or degree soever promoted or beneficed in the Kingdom of Ireland and who hath been enforced to forsake the said Kingdom or hath so done for fear of the Irish Rebels and being of the Protestant Religion who are or shall be presented promoted collated instituted or inducted to any Church or Benefice with Cure or without Cure or to any Ecclesiastical Promotion whatsoever in the Kingdom of England shall thereby or by acceptance thereof lose any Ecclesiastical Benefice or Promotion in the said Kingdom of Ireland but that he and every of them be continued and enabled still to hold and enjoy his Benefice and Promotion in the said Kingdom of Ireland of what dignity or degree soever the same was You see here the Parliament takes no notice of any Law made in Ireland and consequently of no Parliament there at least which should stand in the way of their Authority 'T is true there follows these words Any Law Statute or Canon notwithstanding I hope you do not take this to be meant of Laws Statutes and Canons made in Ireland 't is not probable it should but if you will have it so then you see that the Parliament of England thought this Law strong enough to command Obedience in Ireland although contradictory to the Laws made by the Parliament there The next Statute you mention is pag. 108. cap. 34. of the same Sessions intituled An Act for prohibiting all Trade and Commerce with France By this you say Ireland is bound However you have found a Salvo for this also 'T was say you 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 What then should the Parliament of England therefore assume a Power which did not belong to them why did they not make Laws to bind Flanders where the War was hotter then in Ireland and the Subjects of the King of Spain under the Irregular Oppression of the French King But had not the Parliament of England exercised this Power before you your self say they had in Charles the Second's days p. 102. So then this was not the Reason though you are pleased to shadow it over with this Vail it was because they thought Ireland to be under their Jurisdiction and that this Act would be necessary for the Publick Weal of the Kingdom of England and the Lands belonging to it But mistrusting the weight of this Reason you proceed and say pag. 108. Neither do we complain of it as hindring us from corresponding with the King's Enemies for it is the duty of all good Subjects to abstain from that What then are Statute Laws such Cobweb things as to be binding only when no Complaints are made against them This is a worse Reason then the other I admit the Protestant Gentlemen of Ireland to be good Subjects but what if some ill Men amongst you should have complained of this Law and broke through it for their private advantage had it not force enough to have caused it's Penalties to be put in Execution against them Surely the Parliament thought it had else they did ill to name Ireland in the Body of that Statute and their Reason for it doubtless was That they thought Ireland subject to their Authority as a Kingdom depending on England which they did not take Scotland to be else in all probability they would have extended that Act thither also 'T was not out of love to the French King that they left Scotland out Please to note That this Law likewise binds Jersey Garnsey Alderney Sark and Isle of Man the last was once a Kingdom of it self separate from England and in the hands of the Scots and of the Norwegians The next you mention is pag. 109. An Act made 1 Gul. Mar. Sess 2. cap. 9. intituled An Act for the better Security and Relief of his Majesty's Protestant Subjects of Ireland And what say you to this Why pag. 108. you tell us That the banished Laity of Ireland observing 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 advisable for them to do something in Relation to their Concerns And accordingly they obtained this Act. Very careful indeed they were to apply themselves for Paper Laws to the Parliament of England if they thought they had no Power to make them A Man would have supposed that the Parliament of Ireland in their first Sessions after the Reduction of that Kingdom would have deprived the Clergy-men concerned in procuring the other Act of all their Ecclesiastical Preferments in Ireland for the wrong step they made because 't was they began the Dance for the Laity who only followed their Example And here you have the Opinion of the Laity of Ireland as you had before that of the Clergy and by your Writing I suppose you were one of them But you still harp on the same String 't was because you could have no Regular Parliament in Ireland though I perceive you had a farther drift in obtaining this Act then the Clergy had in procuring the other for you proceed p. 109. We concluded with our selves that when we had obtain'd these Acts from the Parliament in England we had gone 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 Was this really your Reason Why then
Civil and Ecclesiastical State were setled there Regiae sublimatis authoritate Solely by the King's Authority and their own good Wills as the Irish Statute 11 Eliz. Cap. 1. expresses it What the Irish Statutes express I think hath no great Weight in this Debate the Question is by what Power the People of Ireland for so I will now call them threw off that Subjection they once owed to the Legislative Power of England If they think their bare Denial is enough to warrant them free from such a Subjection the People of England may expect the like on the same Argument if because they are not present at our Elections I will answer that in the following Discourse We proceed now to pag. 39. To see â—â— what farther Degrees the Government of Ireland grew up conformable to that of England which are your own Words you say that about the twenty third year of Henry II. which was within five years after his return from Ireland he created his younger Son John King of Ireland at a Parliament held at Oxford and from this you would infer Page 40. That by this Donation of the Kingdom of Ireland to King John Ireland was most eminently set apart again as a separate and distinct Kingdom by it self from the Kingdom of England but you do not set forth that Grant and our Statute-Books are not so old this had been necessary for many reasons you say Page 40. That by this Donation King John made divers Grants and Chartes to his Subjects of Ireland does this alone shew a Regal Authority and might it not have been done by a Lord-Deputy still subject to the Crown of England Pray let me ask you was he at his return to England which you say was a little after his first going over received here by his Father as a Brother-King and did he take Precedence of his elder Brother Richard 'T is much this young King had not punished his Subjects of Ireland for being angry at his deriding their long Beards at which you say they took such Offence that they departed in much Discontent I say 't is much he had not punished their Undutifulness but rather chose to come away in a Pet and thereby to abdicate his new Kingdom for you do not shew that he left the Administration of the Government with any one else All that can be said in his Defence is that he was young about Twelve Years old pag. 39 and perhaps the obstinate Humour which the Barons of England afterwards found in him might grow up with him and become an Infirmity of Age and during King John's being in England did the Kingdom of Ireland govern its self For if his Father King Henry the Second sent over any other to succeed him all your Argument is lost But after all I find his granting Charters is not of such moment as to prove him a King for this he did to the City of Bristol whilst he was Earl of Moreton which I believe was long after the time you mention and I find by the exemplification of that Charter that his Son King Henry the Third in his Inspeximus confirms it as granted by his Father King John when he was Earl of Moreton without mentioning that he was then also King of Ireland and Princes do not use to abate any thing of their Titles especially when they are of so great Importance as this No body doth believe that King John whilst Earl of Moreton had such a Royal Authority in Bristol as to discharge it from an obediential Subjection to the Legislative Power of England The Statute Primo G. M. Cap. 9. ss 2. saith Ireland is annexed and united to the Imperial Crown of England as well by the Laws of this Kingdom as those of Ireland and I am sure there is a great deal of difference between being part of the Imperial Crown of England as Wales is and a separate Kingdom as Scotland is I find likewise that Henry the Third never wrote himself more than Lord of Ireland and 't is strange if Ireland was established a separate Kingdom in John Earl of Moreton and his Heirs that the Title had not been continued in his Son and how comes it to pass that we have ever since been at the Charge of supporting that Kingdom with our Treasure without keeping a separate Account of our Expences laid out on it which doubtless we should have done had we thought it a separate Kingdom But to proceed on searching Sir Richard Baker's Chronicle I cannot find that he takes any Notice of King Henry IId's sending over his Son John about the Twenty Third Year of his Reign as you say Page 39. which 't is much he should omit seeing it was on so memorable an Occasion as his being made King of a separate Kingdom by his Father in a Parliament at Oxford but he saith that in the Thirty First Year of his Reign he sent his Son John over to Ireland to be Governour there and afterwards in the Reign of Richard I. Son to Henry II. and Brother to this John he speaking of the great Kindnesses shewed by the said King Richard I. to his Brother John hath these Words To whom he made appear how much the Bounty of a Brother was better than the Hardnesses of a Father and afterwards he names the several Earldoms which he conferred on him viz. Cornwall Dorset Somerset Nottingham Darby and Lancaster then treating of Affairs in England during the King's Absence on his Voyage to the Holy Land saith he left William Longshamp Bishop of Ely in chief Place of Authority at which his Brother was disgusted whom he calls there Duke John and in another Place he says that the King after his Return from the Holy Land took from him all the great Possessions he had given him and afterwards the said John submitted himself to the King his Brother Now does this agree with the Honour and Dignity of a King who had a separate Kingdom or were the Grants of those several Earldoms from his Brother which you see were liable to be taken away again at the King's Pleasure to be accounted a greater Largess than the Bounty of his Father if he had made him King of a separate Kingdom and setled it in Parliament as you affirm Besides if any such thing was done by Henry II. in the Twenty Third Year of his Reign it appears if Baker be in the right that that Grant was recalled for he saith plainly that he sent him over in his One and Thirtieth Year to be Governor of Ireland How indeed saith to be Lord of Ireland but neither of them mention any thing of what was done in the Parliament at Oxford Well suppose it to be Dominus Hiberniae on which Word you seem to build so much pag. 40 41. Is this Title any thing greater than Lord Lieutenant or Lord Justice which hath for ought I can perceive been used ever since Does a Title granted in a Patent from the King
Item We Will and Grant that no Licence or Priviledge to make Passage by English-men Irish-men or Welch-men of Wools c. out of the same Realm and Lands c. Cap. 10. Sect. 2. We Will and Establish that one Weight one Measure and one Yard be through all the Land c. Here Ireland is comprehended under these words throughout all the Land which I suppose will without Objection be admitted to be the Kingdom of England if Ireland is not comprehended under those general Words then Wales is not and then one Weight and Measure was appointed for England and another permitted to be in Wales but if Wales is comprehended under them then Ireland is also And this you may know by considering what Weights and Measures are settled in Ireland and when Cap. 11. Item We have Ordained and Established That all Merchants c. that do bring Wines c. to the Staples Cities c. within our said Realm and Lands Cap. 12. Item no Merchant c. shall carry out of our Realm of England Wools Leather c. Here Ireland is again comprehended under the general Words our Realm of England or else Wales is not and the purport of the Act shows that for can it be thought that the People of Wales and Ireland had Liberty to export Wools Leather c. into Foreign Parts when this was denied to the People of England Cap. 13. Item We Will and Grant That if any Merchant Privy or Stranger be Robbed of his Goods upon the Sea and the Goods so Robbed come into any Parts within our Realm or Lands Cap. 14. Item We have Ordained That all Merchants Privy or Strangers may safely carry and bring within our said Realm and Lands Plate of Silver c. and in the next Sect. Provided always that no Money have common course within our said Realm and Lands but the Money of Gold and Silver of our Coin So in Cap. 17. the Words Realm and Lands are thrice expressed as comprehending England Wales and Ireland By all which it appears to me That in those Days there was no thoughts of Ireland's being a separate Kingdom or making Laws for themselves any other than By-Laws But they were supposed to be part of the Kingdom of England and under the Jurisdiction of the Legislative Power thereof and yet this was long after the pretended Grant of Henry II. to his Son John to be King of Ireland as a separate Kingdom which does confirm me in what I have said before that what is now call'd the Parliament of Ireland was formerly no more than a Summoning the Great Men of the Kingdom together and commanding them to obey the Laws made in England as you have it in the Writ sent over by King Henry the Third to Richard du Burgh mentioned before which is transcribed by you P. 53. Coram eis publice legi faciatis c. The Parliament of England in those days was very careful of their Power and did not easily part with their Jurisdiction they presently put in their Claim so soon as the Kings of England got any footing either by Conquest or Submission In the Statutes made at Westminster 27 September the 11th of Edward III. Anno 1337. I find Laws made to bind Scotland cap. 1 2 4. are repealed so I cannot see their Contents But cap. 3. runs thus Item It is accorded and established That no Merchant c. shall bring c. into the said Lands of England Ireland Wales and Scotland within the King's Power And cap. 5. runs thus Item it is accorded That all the Clothworkers of strange Lands c. which will come into England Ireland Wales or Scotland I do not find any Acts of this nature made either before that time or after which put me upon perusing the Histories and Chronicles of England about that time How saith That Anno Regni 5 Ed. 3. 1331. Edward Baliol who was Son to John Baliol sometime King of Scotland was by the Assistance of the said King Edward crowned King of Scots but afterward he resigned it to the said King Edward of England and remained under his Protection many years after Baker saith That to hold a good Correspondence with the King of England hereafter he doth him homage for his Realm of Scotland And no doubt had Scotland still continued so the guilded flourishes of a separate Kingdom would not have tempted the Parliament of England to have parted with their Authority of making Laws to govern it and can it be thought they should so easily let Ireland slip it doth not appear so by any Act of their own and for the Acts of others they can be no Precedents against them But to proceed There are yet other Reasons why Ireland should be more bound by the Statute-Laws of England then Scotland Ireland hath been always accounted so much a part of the Imperial Crown of this Kingdom that on the late Revolution when the Crown of England was settled on the then Prince and Princess of Orange Stat. primo Guil. Mar. cap. 2. They are declared King and Queen of Ireland as well as England and by that Recognition they had been so though the Parliament of Ireland had opposed it whereas the Case was not the same with Scotland The Rights and Priviledges of the People of Ireland were also settled by the same Statute equal to those of the People of England But the Rights and Priviledges of the People of Scotland were not Nor was this Recognition made in their Names they took their own time to do it and to settle the Rights and Priviledges of their own Kingdom as they pleased being a separate Kingdom without dependance on the Kingdom of England I wonder you hang so much in this Paragraph on Ireland's being a separate Kingdom in the Person of King John no Man of Sence who had examined that matter would make any dependance thereon and such I take you to be therefore it looks as if you had a mind to betray and give up the Cause did I not think you a Gentleman of greater sincerity you had certainly found a better Argument in your original Contract could you have made it out Page 85. You proceed to take into consideration such English Statutes as particularly name Ireland and these you divide into Ancient Precedents and Modern Instances and conclude That if the former do not make against you the latter are only Usurpations made upon you I think this fully answer'd before But I will take your own way and follow the Thred of your own Arguments though I think you spin it too long The Ancient Precedents of English Statutes designing to bind Ireland you say are first Statutum Hiberniae 14 Hen. 3. Secondly Ordinatio pro Statu Hiberniae 17 Edw. 1. Thirdly An Act concerning Staples 2 Hen. 6. pag. 85 86. And are these all What think you of the Statute of Merchants made at Westminster 13 Edw. 1. Anno 1258 wherein are these words Sect.
'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 dispatched four Knights to the King in England to bring a Certificate from thence of the practice used there and what was the Common Law of England in that Case whereupon Henry III. in this his Certificate or Rescript which is called Statutum Hiberniae merely 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 observed Teste meipso apud Westminst 9 Febr. An. Reg. 14. From whence you infer That this Statute was no more then 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 do you really speak your Thoughts herein Was it ever customary for the Judges to send to the King to expound Law to them and for the King by Certificates to direct them what they should give for Law I thought their Business had been to declare the Law impartially between the King and his Subjects and that if they doubted in any Points of the Common Law their Custom had been to advise one with another or with some other Learned Councel in the Law Is it to be thought the King knew Law better than his Judges I would not have you insist on this for the Honour of the Long Robe in Ireland But Sir there is more in this then perhaps at first you think for either this is a Statute Law and our Books call it so therefore in your favour I will believe it so or else the King had in those days an Absolute Power and Authority to impose on Ireland what Laws he thought fit For in the close of that Statute 't is said Therefore we command you That you cause the foresaid Customs that be used within our Realm of England in this case to be proclaimed throughout our Dominion of Ireland and to be straitly kept and observed If all our Acts of Parliament which declare the Common Law of England shall be called Certificates pray what will become of Magna Charta Charta Foresta and most of our old Laws which were generally Declarations of what was the Common Law of this Kingdom and what were the Rights and Liberties of the Subjects before the making of them I come now to your second old Precedent the Statute called Ordinatio pro Statu Hiberniae made at Nottingham 17 Edw. 1. Anno 1288. This you say pag. 88. was certainly never received or of force in Ireland And you further say That this is manifest from the very first Article of that Ordinance which prohibits the Justice of Ireland or others the King's Officers there to purchase Lands in that Kingdom or within their respective Bailiwicks without the King's Licence on pain of Forfeitures But that this has ever been otherwise and that the Lords Justices and other Officers here have purchased Lands in Ireland at their own Will and Pleasure needs no proof to those who have the least knowledge of this Country Is this a fair Argument against the Validity of a Statute That it hath not had due obedience rendred to it If this be Law I am afraid many of our late good Statutes have run the same fate but I never knew till now That the Peoples Obedience was an Essential part in a Statute I thought the Consent of King Lords and Commons given to it in Parliament had been enough But we will not let this Matter fall without further examining into your Argument That Statute consists of eight Chapters let us see which of those Chapters have not been received and obeyed you only mention the first viz. That the Lords Justices of Ireland and other Officers have purchased Lands in Ireland at their own Will and Pleasure as you recite it pag. 88. But the words in the Statute are these That the Justices of Ireland nor any other Officers of ours of the same Realm so long as they are in our Service there shall purchase any Land or Tenement within the List or bound of their Bailiwicks without our special Licence Which makes a great Alteration in the Matter for they might purchase Lands or Tenements both before and after they were in their Offices But we will take the Words as you give them how does it appear that this Law was not observed You say p. 89. It does not appear by any Inquisition Office or Record that any one ever forfeited on that account It may be so perhaps it was never broke and then there was no need of an Inquisition or the King might grant Licence as that Law does direct to his Justices and other Officers to purchase Lands during their being in their Offices or they might purchase them without the List or Bounds of their Bailiwicks and then the Terms of the Law were complied with But I am apt to think you will carry this farther and say That in later Years the Justices of Ireland and other the King's Officers have not taken notice of this Law perhaps so and what would you draw from this How many old Laws have we in England that are obsolete and disregarded by Time which though they fitted the Circumstances of the Times they were made in yet are not proper for our Days Witness the Statutes against going Arm'd the Statutes about Bows and Arrows and many others which were and still remain Statutes till repealed though perhaps 't will be thought hard to put them in Execution without giving publick Notice thereof sometime before to the Subject But after all how do you know but that these Officers you last mentioned may have Licences from the King to purchase Lands though I think it not at all to the matter whether they have or no. But to proceed That Statute as I said before consists of Eight Chapters you have taken notice only of the First therefore we will come to the next Chapter of that Statute The Title is In what Case only Purveyance may be made in Ireland Is that observed in Ireland or do the Justices or other the King's Officers by colour of their Offices take Victuals or any other things of any Person against his Will contrary to that Chapter The Third Chapter is about Transporting Merchandizes out of Ireland Do the Justices or any of the King's Ministers by colour of their Offices Arrest the Ships or other Goods of the People of Ireland The Fourth settles The Fees of a Bill of
by the same Argumentation Scotland it self may be bound by English Laws I confess I would gladly pay a great Respect to your Person but I would not willingly be drawn aside by your Opinion which I should be if I were thereby perswaded that the Parliament of England have no more Power to make Laws to bind Ireland than they have to bind Scotland since it does appear that they have done it from the first time of our Statutes being extant and long before it can be rationally concluded there was a Parliament there And yet I do not think they can make Laws to bind Scotland because they themselves never pretended to any such Power save in the Case aforementioned that ever I heard of England and Ireland are not two distinct Kingdoms as England and Scotland are Ireland is a Kingdom dependant on and annexed to the Imperial Crown of England and the Parliament of Ireland is likewise subordinate to the Parliament of England therefore the Laws made by the latter will bind the former This I hope I have prov'd notwithstanding what you say That the contrary will be denied by no Man As to what you say in relation to France pag. 94. Whether on this way of reasoning the People of England had not been subject to the King of France had our Kings continued the Possession of that Country and there kept the Seat of the Monarchy I answer No for those two Kingdoms had not been united as England and Ireland are but as England and Scotland However you will find That it was provided against by a Statute made 14 Edw. 3. Anno 1340. All I find of it in Keeble is this not being printed at large By a Statute it was ordained That the Realm of England and the People thereof shall not be subject to the King or Kingdom of France But you say pag. 94. That the Statute Laws of England have not received your Assent and you argue thence That the People of England will consider whether they also are not the King's Subjects and may therefore by this way of reasoning be bound by Laws which the King may assign them without their assent c. I shall have occasion to speak to this hereafter so I shall for the present wave it here And now I find you have done with your three Ancient Precedents the last of which was in the Second of Henry VI. and I have cited to you several other Statutes made before that time which do undoubtedly bind Ireland being intended by the Parliament so to do which I suppose you never saw or would not cite because you had nothing to say against them I shall next follow you to your Modern Instances which you likewise call Modern Precedents pag. 98 99. And here you 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 you have before-mentioned Is this really so What think you of those I have before cited I am very unwilling to swell this Answer but I find my self obliged to follow wherever you will lead even to 41. Well then besides them What think you of these several Statutes under-mentioned viz. 32 Hen. 8. cap. 24. Whereby the Knights of St. John of Jerusalem in Ireland were dissolved 1 Edw. 6. cap. 1. Whereby the Sacrament is directed to be administred in both Kinds unto the People in Ireland 1 Edw. 6. cap. 2. Entituled an Act for Election of Bishops wherein Ireland is named 1 Eliz. cap. 1. Whereby the Queen hath power given her to assign over to any Person power to exercise Ecclesiastical Authority in Ireland 8 Eliz. cap. 3. Against exporting of Sheep from Ireland I think all these Laws bound Ireland But what you mean by Introductory of a new Law or Interfering with the Right which the People of Ireland have to make Laws for themselves I shall not labour to understand these seem to be nice Quibbles All I proposed was That the Parliament of England have and always had power to bind Ireland by their Statutes which you have denied and I hope I have proved And now I am come with you to 41 where you end your Assertion and acknowledge That in that Year and since some Laws have been made in England to be of force in Ireland I take your own words p. 99. These Acts you say are of 17 Car. 1. you do not name the Chapters but they are 33 34 35 37. which being expired are not to be found in the Statute-Book any more save the Titles therefore I must apply my self to what you say of them p. 100. The Titles say you 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 Settlemement and Explanation passed in King Charles the Second's time in the Kingdom of Ireland And having gained this Advantage against the Parliament of England you make use of it to the utmost and presently conclude That they plainly shew that the Parliament of Ireland may Repeal an Act passed in England in relation to the Affairs of Ireland Sure I cannot think so for if the Parliament of Ireland can Repeal any one Act made by the Parliament of England they may Repeal all they make which cannot be except they have a Jurisdiction above them For the Power which any one Body or Society of Men hath to Repeal Laws made by another Body or Society must proceed from a Superiority that Body or Society hath over the other whose Laws it doth Repeal So that then if what you say be true it follows That the Parliament of Ireland is Superiour to the Parliament of England and then we have brought our Hogs to a fair Market instead of the Parliament of England's making Laws to bind Ireland the Parliament of Ireland may make Laws to bind England and likewise Repeal those Laws they have already made You Gentlemen of Ireland are angry That we will not give you leave to carry away our Trade and therefore you now undertake to prove That your Parliament can Repeal the Laws our Parliament makes 'T is very pretty truly but I hope you will not put this your Power in Execution and Repeal our Act of Navigation or our Plantation Acts and particularly that Act wherein is the Clause against landing Tobacco in Ireland This I am fond of for a certain reason therefore I beg your favour for it We will part with our Woollen Bill provided you will spare us the Acts already made It will be a great loss to the Kingdom of England if you should Repeal the Acts against planting Tabacco in Ireland 't would very much prejudice our Settlements in Virginia a Trade which besides the great Revenues it brings to the Crown whereof you pay a part does likewise encourage our Navigation expends our Manufactures and employs our
did not you set it forth in your Petition to the Parliament of England and endeavour with them to have got it mentioned in their Act which might also have been a salvo to the Priviledge of the Parliament of Ireland hereafter But I cannot think it was so because you very well knew by a long Experience that Acts of Parliament made in England wanted not the Authority of the Parliament of Ireland to confirm them and consequently you needed it not in this Nor was there any reason to fear this Act 's being pleaded against you as a Precedent of your Submission and absolute acquiescence in the Jurisdiction of the Parliaments of England over the Kingdom of Ireland which you complain of p. 110. for I should take the Authority of the Parliament of England to be very young if it depended thereon But now you have done with this Act give me leave to take it up You say That therein King James his Irish Parliament at Dublin and all Acts and Attainders done by them are declared void p. 109. I find then that King James had a Parliament in Ireland which Parliament must be lawfully Assembled if Ireland is a separate Kingdom and not subject to the Statute-Laws of England For though he had abdicated the Kingdom of England and that it was so declared by the Parliament here who had settled the Crown on King William and Queen Mary yet supposing Ireland to be a separate Kingdom that Declaration would no more have reached it than it did Scotland till the same was done by the Parliament there Hence then it follows either that you did tacitely confess Ireland to be no separate Kingdom or that the Parliament of England had Power to declare void an Irish Parliament and all Acts and Attainders done by them for you say That you obtained this Act for your better Security and Relief Please to consider whether I am not in the right as to this Matter The next Act you mention is p. 111. viz. An Act for Abrogating the Oath of Supremacy in Ireland and appointing other Oaths 3. 4. Gul. Mar. This you say binds Ireland and to this and the forementioned Acts you say you conformed your selves because they were in your Favour and you hope that a voluntary Submission to the Commands of another who hath no Jurisdiction over you as you suppose the Parliament of England hath not because they are pleasing to you shall give him no Authority to command you ever after as he pleases p. 112. If this were the Case I confess you have reason on your side but seeing it is not but that the Parliament of England hath made Laws to bind Ireland ever since it was united to the Imperial Crown thereof I hope the Obedience you paid to these Statutes shall not be called a Voluntary Submission which you have Power to throw off when you please except you are of Opinion with what follows viz. That Subjects ought not to obey longer than they see it convenient for them unless they be forced to it which Force they are to free themselves from as soon as they can I am apt to think the Parliament of England will not like this Principle and I do not see how the Parliament of Ireland can neither for if this be allowed pari ratione you may throw off their Jurisdiction also when you please But I will return to this last Act which you say p. 111. was made 3 4 Gul. Mar. It hath slipt my Collection so I can observe nothing from it save what you say your self viz. That the Parliament convened at Dublin Anno 1692. under Lord Sidney and that likewise Anno 1695 under Lord Caple paid an entire Obedience to it From whence I conclude that those two Parliaments thought it their Duty so to do else it would seem very imprudent in them because they could not but conclude that it would be interpreted an Acknowledgment of the Jurisdiction of the Parliament of England over them not that I urge it against them for a Precedent in favour of the Parliament of England 't will imply a weakness in their Authority if they wanted it which they do not by your own Confession for you say p. 64. That several English Acts of Parliament were allowed in the Parliament of Ireland held 10 Hen. 7. tho' I think that allowance utterly unnecessary and rather an Incroachment on the Jurisdiction of the Parliament of England But why did the Parliament of England Anno 3 4 Gul. Mar. make this Law at a time when the Parliament of Ireland was so near sitting which you say was Anno 1692 Truly though I cannot give their Reasons for it and it will not be good Manners for me to ask them yet I will adventure my Thought which is That they knew they had Power to make it and that the Parliament of Ireland whenever they met was bound to pay Obedience to it And now it comes into my mind let me ask you Gentlemen of Ireland this Question Did you think King William and Queen Mary King and Queen of Ireland before the Calling of that Parliament or did you not if you did not how came that Parliament to meet by Vertue of their Writs For if Ireland be an Independant Kingdom the Declaration of the Parliament of England as I said before was nothing to you but if you did it must be by Vertue of the Act of Recognition made in the Parliament of England if so then that Act also reached Ireland though you do not mention it and then it follows that here is a New Original Compact whereby Ireland is become a Dependant on the Kingdom of England and your Parliament on the Parliament thereof I do not see how you will get over this Argument though there is no need to make use of it in favour of the Parliament of England yet I may with much more Reason draw this Conclusion from hence then you can from the supposed Donation of King Henry II. to his Son John that Ireland was then made a separate Kingdom But I go forwards p. 113. you come to your Arguments drawn from the Liberty of the People and tell us That the Right of being subject only to such Laws to which Men give their own Consent is so inherent to all Mankind and founded on such immutable Laws of Nature and Reason that 't is not to be alienated or given up by any Body of Men whatsoever I confess my self intirely of this Opinion and I cannot think the People of Ireland ought to be deprived of that which I would not lose my self much less can I Argue for it So that you see I am no Friend to Slavery or any thing that looks like it when I cannot defend my Argument without subjecting Ireland to this State I will give up the Gantlet But let us rightly distinguish in this Matter and since we agree in the main let us consider what you mean by giving Consent
to a Law This I presume must be done either by a Man's self or by his chosen Representative if so then we will consider how far this will affect the People of Ireland with respect to the Matter we are now upon For I believe you will grant that if a Man denies or neglects to qualifie himself for such an Election or if qualified refuses to be present thereat or removes himself at such a distance that he cannot if he would this Man is not denied his Consent nor is his Liberty broken in upon though he be afterwards bound up by Laws made by a Parliament in the Election of whose Members he actually gave no Vote the Laws governing Elections being made by a common Consent though they may seem to affect some Persons severely yet being thought convenient for the whole Community ought to be submitted to And as for the other two things being Acts of a Man 's own his Choice is supposed to go along with them If this be not allowed there never was any Election free For suppose I will not make my self a Freeholder for a County Citizen or Burgess for a Corporation must the Laws already made be Cancelled to gratify my Humour Or suppose that I go on a Voyage to Sea or settle my self in the Plantations Abroad shall not I be bound by the Statute-Laws of England because I was not actually present at the Election of the Members that made them If this be admitted few Men will care to be there 'T is a pleasant way of Arguing till it comes to be closely applied Now there is no English Subject in Ireland but may put himself if he please under one of these Qualifications that is he is capacitated to do it as he is an Englishman and this is what his Ancestors did before him to whose Privileges he succeeds and must not expect that new Itinerant Courts of Parliament shall be erected to follow him where-ever he thinks fit to remove If this be allowed to the Gentlemen of Ireland why should it be denied to those who settled in our Plantations in America they all removed out of England on the same Principles of advancing their own private Fortunes and what a Jumble of Laws should we then have Not but that I think it highly reasonable they should all have power to make private Laws for the better governing their several Colonies and this they do by Representatives chosen by themselves which in the Lesser Plantations they call Assemblies but in Ireland a Parliament which Assemblies and the Laws they make ought still to be in Submission to the Superior Power of the Parliament of England But if I do not mistake you have somewhere own'd that Ireland did once send Representatives to the Parliament of England I must turn back and I find it in p. 95. where you say There have been other Statutes or Ordinances made in England for Ireland which may reasonably be of Force here because they were made and assented to by our own Representatives And you go on to shew from the White Book in the Exchequer in Dublin the form of a Writ sent by King Edward I. to his Chancellor of Ireland wherein he mentions Quaedam Statuta per nos de assensu Prelatorum Comitum Baronum Communitatis Regni nostri Hiberniae nuper apud Lincoln quaedam alia Statuta post modum apud Eborum facta These you suppose to be Statutes made either at the Request of the States of Ireland or by the Assent of your own Representatives the Lords Spiritual and Temporal and Commons of Ireland and from this you Argue p. 96. That the King and Parliament of England would not Enact Laws to bind Ireland without the Concurrence of the Representatives of this Kingdom Well Sir put what Sence you please on it this shews plainly that you then came to England for your Laws and that the Parliament of England had a Legislative Jurisdiction over you in those early days so that all makes the worse for your Argument How then came you to be free from it For either you cast off the Parliament of England or the Parliament of England cast off you 't is not the latter for the Parliament is still careful for your Welfare and makes good Laws for your better Government and I see no Power you had to cast them off except you will at the same time say you are not English-Men which I hope you will not but I find you are like froward Children who will not eat their Bread and Butter unless it be Sugar'd nothing will please you unless the Parliament of England will resign their Legislative Authority which they shall never have my Consent to except I see better Reasons for it than any you have yet produced But you proceed p. 96. Formerly when Ireland was but thinly Peopled and the English Laws not fully currant in all parts of the Kingdom 't is probable that then they could not frequently Assemble with conveniency or safety to make Laws in their own Parliaments at Home and therefore during the Heats of Rebellions or Confusion of the Times they were forc'd to Enact Laws in England Truely 't is a very probable Story you tell us I take Bevis of Southampton or Guy of Warwick to be altogether as probable Come let us examine it In the former part of your Book you lay it down as undeniable That Henry II. in the Parliament at Oxford made a Donation of Ireland to his Son John as a separate Kingdom and as such Parliaments were there settled I must confess I think 't is all of a piece now you tell us that because the People of Ireland could not Assemble with Conveniency and Safety to make Laws during the Heats of Rebellions and Confusions of Times there they came to England to make them here just like the Birds that remove at their Pleasure from colder Climates to make their Nests in Warmer But you prove nothing of this nor is it at all likely Pray when were these Heats of Rebellions not in the Days of Henry II. for you say p. 8. that Anno 1172 Ireland was quietly surrendred to him by Richard Strongbow at Dublin afterwards p. 30. you say he settled a modus tenendi Parliam p. 39. you say that five Years after his return from thence he created his Younger Son John King of Ireland who went thither and that the Irish Nobility and Gentry immediately repaired to him 'T is true you say there was some Difference between them about their long rude Beards but I hope you will not call that a Rebellion p. 40. you imply to us that King John made another Voyage thither which How and Baker say was the 31 Hen. 2. being eight Years after You proceed also and tell us That King John govern'd them Two and twenty Years during the Lives of his Father Henry II. and his Brother Richard I. in which time he made them divers Grants and Charters so that hitherto
France and Scotland could not keep in quiet his County of Ireland as it is called in the Statute 1 Hen. 6. quoted before and now you tell us the Reason why it was then called so viz. because they formerly sent Representatives to serve in Parliament here If this was not the Reason why they sent them only on some occasions and you give no other then I am apt to think either that they sent none at all or that they sent them to every Parliament for I can't believe that Laws were made in England and in Ireland at the same time by two Parliaments that stood on equal footing one with the other This is not probable for what if their Laws should clash the Parliament of England would not submit to have their Laws repealed by the Parliament of Ireland that were unjust because the same Power that made them was not at the repealing of them Ireland had Representatives in the Parliament of England but England had not in the Parliament of Ireland Nor is it probable That the Parliament of Ireland would have stoopt to the Parliament of England if they had any colourable Argument of their side for you see how loath they are to do it now though they have none at all at least you who have undertaken this Contest in their favour have produced none but you have fairly quitted the Field and confest That Ireland did formerly for 100 years together send their Representatives to the Parliament of England Well then to return to this Happiness why did not Ireland continue it You tell us pag. 98. They found it very troublesome and inconvenient What makes you then to desire it again I do not see how it will be less troublesome now and I assure you it will be attended with as many inconveniencies if not to you in Ireland yet to us in England and I hope you will consider your Neighbours inconveniencies as well as your own But as inconvenient and troublesome as it is you are willing to have this Happiness restored Here the nature of the Argument is altered for now it is not Whether the Parliament of England have Power to make Laws to bind Ireland and whether what they have done in that Matter for 500 years past hath been done de jure but whether Ireland shall be restored to its former Priviledges of sending Representatives to sit in the Parliament of England I confess I have no Authority to treat with you about this Affair it is reserved for a higher Power to determine But suppose you are denied to have this Happiness restored the question then will be Whether you have any wrong done you If I was to be Judge I should give it against you For seeing you have given up your Rights so many hundred years since and submitted your selves to your English Representatives without sending any from Ireland I do not see how you can insist on it now And in this I believe you have Neighbours Fair for I doubt not there are many Corporations both in England and Wales who either did send more Members to Parliament in former days or might have done it had not the Charge or Trouble put them on seeking to be excused Particularly I observe a Clause to this purpose in the Charter granted to the City of Bristol by King Edward III. when he made it a County whereof I have before me an English Copy which runs thus And moreover we have granted for us and our Heirs to the said Burgesses and their Heirs and Successors for ever that the said Town of Bristol by any means shall not be charged to send to the Parliament of Vs or our Heirs but only two Men as heretofore hath been accustomed the which two Men as well Knights of the County of Bristol as Burgesses of the Town and Borough of Bristol for the same Town and Borough shall be bound to make answer Which shews that this was then granted as a favour to that City at their request to avoid the trouble and charge of sending two Knights as well as two Burgesses to represent them in Parliament which if they would now retrieve they cannot And this was about the same time that you say Ireland being discouraged by the Troubles and Inconveniencies that attended it forbore to send Representatives to sit in Parliament in England But whatever was the Reason that made them do this I cannot agree with what you say pag. 98. 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 Pray what Regular Course of Parliaments do you mean you have not yet proved that you ever had any but rather confessed the contrary you say you sent Representatives to sit in the Parliament of England But what then Does it therefore follow that you might leave that off and set up Parliaments of your own at your pleasure No sure you might quit your Priviledges of being part of the Parliament of England but it doth not therefore follow that you had Power to establish a Parliament in Ireland independent on the Parliament of England no more then if the People of Cornwal being unwilling to put themselves to the trouble of attending the Parliament at Westminster should therefore without farther warrant erect one of their own nearer home and then expect it should be clothed with full Power and be Superiour to that of Westminster with relation to what concerns the County of Cornwal For to talk of your Old Track and Regular course of Parliaments after what you have said on this Matter is a Jest and deserves no answer We are now come to your fifth Particular pag. 115. The Opinions of the Learned in the Laws relating to this Matter The first you mention is the Lord Chief Justice Cook 's in his Seventh Report in Calvin's Case pag. 116. and he is against you But you blame him for his unfaithful broken Citations which I agree with you to be an ill way of deceiving a Reader into a good opinion of an Argument but must tell you that you have been too frequently guilty of the same Fault in this Book yet I cannot see how the Lord Chief Justice Cook hath been unfaithful in this his Citation for I take the whole sence of the Transcript you mention to be included therein You say That after he had declared Ireland to be a Dominion separate and divided from England for which he quotes out of the Year-Books the Case of the Merchants of Waterford and the proceedings thereon which you have mentioned pag. 91. He concludes Nostra Statuta non ligant eos c. yet with this Parenthesis which is to be understood unless they be especially named What you say against this his Opinion p. 117. That it is down-right Magisterial and point blank against the irrefragable Reason of the Book he quotes I think will appear to be very severe if the Point he was