to the antient and due state the dispersed dilapidated and lost Rights of the Kingdom This was not only incumbent upon the Prince but upon the People also who were sworn Brethren to defend the Kingdom against Strangers and against Enemies together with their Lord and King and with him to keep his Lands and Honours with all Fidelity Accordingly when the Pope cited E. 1. to answer judicially before him concerning his Right over Scotland the Parliament say The Premises would manifestly turn to the disherison of the Right of the Crown of the Kingdom of England and of the Royal Dignity and notorious subversion of the state of the said Kingdom And also to the prejudice of the Liberties the Customs and Laws of our Ancestors To the observation of which we are bound by virtue of the Oath we have taken and which we will maintain with all our Power and by God's assistance will defend with all our might Nor also do we or can we as indeed we may not suffer our Lord the King even tho he would to do or in any wise attempt the Premises c. Here 's a ground to justify H. 2. and the People of England at that time which this Gentleman never thought of And Giraldus Cambrensis an Author received by him and an Irish Parliament has shewn another from the nature of the Irish the necessity of their Reformation and that Authority which the generality of Christians in those dark Ages placed in the Pope As to the Character of the People after Girald had condemned their Clergy for not doing their duty among them he says Ut enim de perjuriis eorum proditionibus de furtis latrociniis quibus totus hic populus prope modum immopraeter modum indulget de vitiis variis immunditiis nimis onormibus quas topographia declarat ex toto non emittamus Gens haec Gens spurcissima Gens vitiis involutissima Gens omnium Gentium in fidei rudimentis incultissima For not wholly to omit speaking of their Perjuries and Treasons of the Thefts and Robberies which this whole people in some measure rather without measure indulges of their various vices and uncleannesses too enormous which our Topography declares This Nation is a Nation most vile a Nation the most drown'd in Vices a Nation of all Nations the most ignorant in the Rudiments of Religion This being the nature of the People at that time there might seem if there had been no prior Title to have been as much a right of occupancy as any Nation has had by the first possessing the Lands of Savages but if the right of civilizing the barbarous part of Mankind was not sufficient that Power which the then general consent of Nations had placed in the Pope joined with the other made a Title which none but the Barbarians then disputed This H. 2. had amply and formally Giraldus Cambrensis not only informs us that the Pope gave H. 2. licence to subdue the Irish but exhibits the Bull at large which reciting the King's Intention of entring the Island of Ireland Ad subdendum populum illum legibus vitiorum plantaria inde extirpanda de singulis domibus annuam unius denarii B. Petro velle solvere pensionem jura Ecclesiarum terrae illius illibata integra conservare To subdue that people to Laws and extirpate the plantations of Vices from thence and that he will pay to St. Peter the annual Pension of a Penny out of every House and preserve the Rights of the Churches of that Land unprejudiced and entire Declares the Pope's approbation of that King 's attempting that Island for enlarging the bounds of the Church for restraining the course of Vices for correcting their Manners and sowing Virtues for the encrease of the Christian Religion And this Pope desires the King's purpose may take effect for the Honour of God and Salvation of that Land and that the People of that Land should receive him honourably and reverence him as their Lord. Jure nimirum e contrario illibato integro permanente salva B. Petro S. R. E. de singulis domibus unius denarii pensione The Right however remaining unprejudiced and entire and saving to St. Peter and the holy Church of Rome the pension of a Penny out of every House The Right of the Church was hereby reserv'd unprejudiced the Recital seems to make it to relate to the particular Churches and this Mr. Molineux if he please may take to amount to such a Freedom as exempted them from the Jurisdiction of the Pope as well as of the See of Canterbury but he may easily observe that the Superiority of both is fully reserved and implied under jure illibato integro permanente It thus appearing that this Gentleman had not attended to the true grounds of H. 2 d's Attempt upon Ireland I shall consider what Submission the Irish made to him and in what sense he and his Parliament took it 'T is evident beyond contradiction that they did not submit to him as to a King whom they chose to govern according to their own Laws but as one that imposed and was to impose Laws upon them Of this Mr. Molineâ—x seems so much aware that where he speaks of the submitting to H. 2. he only mentions the general terms of receiving him for King and Lord of Ireland and swearing Allegiance to him and his Heirs or the like but the swearing to the Laws of England he places among the Conâ—essions as if they were no otherwise subject to them than the People of England 'T is to be observed for proof that the Submission was truly voluntary and that there was such a Consent as is essential to the making Laws to bind Posterity that upon H. 2's landing at Waterford several of the Irish Kings and almost all the Nobility of Ireland flock'd in to him that the Archbishops Bishops and Abbats of all Ireland receiv'd him for King and Lord of Ireland and swore to him and his Heiâ—s binding themselves by their Charters to perpetual Allegiance and that after their example and in like manner the Kings and Princes there present receiv'd him for Lord and King of Ireland Upon which I need not observe the known difference taken in Pliny and other good Authors between Dominus and Princeps since after this the King held a Council at Lismore cited by this Gentleman in a wrong place Ubi leges Angliae sunt ab omnibus gratanter receptae juratoriâ cautione confirmatae Where the Laws of England are thankfully received of all and confirm'd by a juratory Caution And for a farther Security the King possest himself of several Cities and Castles which he put into safe hands but of this Mr. M. takes no notice As a cotemporary Exposition is ever of greatest Authority let 's see whether the meaning of this was that Ireland was to be governd by
in the same bottom as the King does in England I say almost on the same bâ—ttom for the Irish Parliament have not only a Negative as the King has in England to whaâ—ever Laws the King and his Priâ—y Councils of both or either Kingdom shall lay before them but have also a liberty of proposing to the King and his Privy Council here such Laws as the Parliament of Ireland think expedient to be pass'd which Laws being thus proposed to the King and put into form and transmitted to the Parliament here of Ireland according to Poyning's Act must be pass'd or rejected in the very words even to a little as they are laid before our Parliament we cannot alter the least Iota In this Narrative of their Constitution under that Law he has omitted the mentioning what is very material that the Kings answer to what they propoâ—e is to be transmitted under the great â—eal of England and this is to be the Licence and Authority for the holding a Parliament in Ireland and therefore their Acts of Parliament since that settlement mention their being held by Authority under the Great Seal of England And there were two obvious ends and effects of this Law as Mr. M. himself owns 1. The preventâ—on of any thing passing in the Parliament of Ireland surreptitiously to the prejudice of the King or the English Interest of Ireland to which I must add or of England 2. To take from the Irish there all colour of pretence of holding Parliaments as an independent Kingdom by virtue of any Authority within that Land But how the King's Prerogative in the Legislature was advanced by this I do not understand since long before as well as notwithstanding this supposed Constitntion of an Independent Parliament held by Authority from the Great Seal of England the King had and has the Prerogative not only to dissolve the Irish Parliaments at his Pleasure but never to call any which this Gentleman ought to fear least such a claim as he makes might occasion and I would gladly know what part of their Constitution provides for the frequent holding of Parliaments in Ireland yet frequency of Parliaments in England is an undoubted part of the Fundamental Constitution of the English Monarchy Farther is it any advance to the Prerogative in the Legislature that a Prince who has the full exercise of an absolute Legislature at home is only possessed of a Provision against having any attempt made to the lessening that his settled and indubitable Prerogative I must needs say this Gentleman has a way of arguing beyond my apprehension for I cannot see the consequence how the Prerogative should be advanced if as he will have it the Irish Parliament is put almost on the same bottom as that the King stands on in England if it be so I should think it a lessening of the Prerogative to have an Irish Parliament almost coordinate with him which Mr. M. is very fearful least an English Parliament should pretend to And I as little understand the reason he gives why the Parliament of Ireland stands almost upon the same bottom with the King for says he they have not only a Negative Vote as the King has in England but liberty to propose yet the Laws must be pass'd or rejected without alteration This I take to be Foreign to the bottom on which either the King or that Parliament stands If it be meant that they are in a manner as absolute in this negative and liberty of purposing as the King is in England since it relates only to Law first desired from Ireland either by the Privy Council or Parliament there this Constitution of their Parliament is so far from giving them a negative to the Laws pass'd in England with declared intention to bind them in Ireland that the Authority of England is wove into the very Constitution and the Parliaments of Ireland own that Authority by their very Sitting and Enacting Mâ— M. having represented that Constiâ—ution of their Parliaments by which he thinks they stand almost upon the same bottom as the King did here makes this strong assumption If therefore the Legislature of Ireland stand on this foot in relation to the King and to the Parliament of Ireland and the Parliament of England do remove it from this bottom and assume it to themselves where the King's Prerogative is much narrower and as it were reversed for there the King has only a negative Vote I humbly conceive 't is an encroachment on the King's Prerogative But he might consider 1. That as here by the Parliament he takes Lords and Commons without the King he mistakes the Fact in relation to their exercice of Power for they do not assume to themselves the Power of making any Law but with and under the King 2. Neither do they in the highest exercice of their Power take from the Irish any thing allowed or directed by Poyning's Law or any other Constitution 3. They do but assert the Chief Prerogative of the Crown of England by which due consent being bad our Kings give Laws to this Realm and all the Dominions belonging to it 4. The ancient course of the Proceedings of the Parliaments of England and their making all manner of Provisions for the Government of Ireland evince that Poyning's Law was rather an Indulgence to the English there directing a Method for their maintaining the face of a Legislature among themselves than any restraint of Power before vested in the Parliaments of England And after all this Law was never as I take it confirm'd by a Parliament of England I must not here omit the consequences which Mr. M. draws from the Parliament of England's pretending Power to impose any one Law upon Ireland 1. That 't will naturally introduce the Taxing them without their consent 2. That 't will leave the People of Ireland in the greatest confusion imaginable that they are not permitted to know which is the Supreme Authority which they are bound to obey whether the Parliament of England or that of Ireland or both and that the uncertainty is or may be made a pretence for disobedience 3. That 't will be highly inconvenient for England may make the Lords and People of Ireland think they are not well used and may drive them into Discontent 1. Not here to consider how far the Lordship of the Land of Ireland may infer the Taxing it if it should refuse to concur as it ought to its own Preservation since the Law of necessity is no farther to be used or considered than while the necessity is apparent I may say that this is no consequence to be apprehended and that as the Right of Taxing does not follow from the Right of Governing and the Nature of the Government depends upon the first Submission and that Interpretation and Confirmation of it which both the governing Nation and the governed have put upon it I must infer with deference to the National Authority that the
do some service to my Country in shewing 2 ly The true Foundation of that Right which England is possessed of in relation to Ireland and what are Mr. Molineux's principal Mistakes Omissions and wrong Comparisons and Inferences concerning it Here I hope to make it evident 1. That he mistakes the Grounds for the submission of Ireland to H. 2. as well as the Nature of it and omits material Passages which may illustrate that matter 2. That if he had been as conversant in Histories and Records as he would be thought he could never have had assurance enough to assert that England may be said much more properly to be conquer'd by W. 1. than Ireland by H. 2. 3. That he is as much mistaken in his comparison between Scotland and Ireland and that matter of his own shewing or admission might have convinced him of an essential difference 1. This Gentleman pretends to give the History of the Expedition of the English into Ireland which he supposes to have been in the Reign of H. 2. and that all the Right which has been acquired by England to have any Government or Superiority over that Nation was derived from within that King's Reign Which manifests his having seen very little of our English Antiquities and his not attending to what Irish Acts of Parliament might have taught him The Confessor's Law under the Title of the Rights and Appendages or Dependencies of the Crown of England expresly names Ireland as one which it supposes to have been first annexed to the Crown of England by King Arthur Accordingly besides other Authorities which might be produced a very Antient Manuscript in Latin Verse in the Cotton Library ascribed to a Gildas who lived in the Year 860. speaking of several things done by that King in this British Kingdom says His ita dispositis in regnum tendit Ybernum These things thus settled he for Ireland goes Another Manuscript in the Cotton Library treating of the number of the Courâ—ies of England and the Countrys and Islands which of Right and without doubt belong to the Crown and Dignity of the Kingdom of Britain and the several Laws or Customs by which they were governed among the places subject to the Danelege mentions Man the Orcades Gurth and the other Islands of the Western Ocean about or in the way towards Norway and Danemark within which we may well think Ireland to have been meant since the Isle of Man is one of the Islands there taken to be about bordering upon or in the Road to Norway and Denmark Tho the Confessor's Law places the Foundation of the Right of the Crown of England to Ireland in the acquisition of King Arthur it must be agreed that this was so antiquated and so many Changes had happened in the State of this Nation between his time and King Edgar's that he might well have no regard to any Right from King Arthur And however might suppose himself to have been the first of the Anglo-Saxon Kings who had subjected Ireland or the greatest part of it to the Crown of England which that he did we have the Testimony of his memorable Charter Ego Eadgarus Anglorum Basilius omniumque Regum insularum quae Britanniam circumjacent cunctarumque nationum quae infra eam includuntur Imperator Dominus Gratias ago Deo Omnipotenti Regi meo qui meum Imperium sic ampliavit exaltavit super Regnum patrum meorum qui licet Monarchiam totius Angliae adepti sunt à tempore Ayelstani qui primus Regum Anglorum Nationes quae Britanniam incolunt sibi armis subegit nullus tamen eorum ultra ejus fines Imperium suum dilatare aggressus est Mihi autem concessit propitia divinitas cum Anglorum imperio omnia Regna Insularum Oceani cum suis ferocissimis Regulis usque Norvegiam maximamque partem Hiberniae cum suâ nobilissimâ civitate Dubliniâ Anglorum regno subjacere Quos etiam Armis meis imperiis colla subdere Dei juvante gratiâ coegi I Edgar King of the English and Emperor and Lord of all the Kings of the Islands which lie about Britain and of all Nations that are included within it give Thanks to God Almighty my King who hath so inlarged and exalted my Kingdom above the Kingdom of my Ancestors who altho they had gain'd the Monarchy of all England from the time of King Athelstan who was the first of the Kings of the English that brought under him by Arms the Nations which inhabit Britain yet none of them attempted to stretch his Empire beyond its bounds But the propitious Divinity has granted me with the Empire of the English to put under the Dominion of the English all the Kingdoms of the Isles of the Ocean with their fiercest little Kings as far as Norway and the greatest part of Ireland with its most noble City Dublin Even all those by the help of God's Grace I have compell'd to submit their Necks to my Commands From this time 't will be evident to any who observe the stiles of our Kings till H. II's time that the Authority of England over Ireland was taken to be included under the stile of King of the English Saxons of Britain of the Island of Albion or the like not but that for several Reigns before the time of H. II. Parliaments in which the King's Charters pass'd were often careful to have the stile more expressive of the Title to the Dominions out of England For instances of both kinds Edgar after the Charter above cited stiles himself Basileus dilectae Insulae Albionis subditis nobis sceptris Regum Scottorum Cumbrorumque ac Britonum omnium circumcirca Regionum King of the Beloved Island of Albion the Scepters of the Kings of the Scots the Cumbers and the Britons being subject to us and of all the Regions round about In another Basileus Anglorum Imperator Regum Gentium King of the English and Emperor of the Kings of Nations After this King Ethelred stiles himself sometimes Ego Adelred totius Albionis Monarchiam gubernans I Athelred governing the Monarchy of all Albion Subscribes Rex Anglorum King of the English Sometimes Ego Athelred totius Britanniae Basileus I Athelred King of all Britain Sometimes Ego Ethelred Britanniae totius Anglorum Monarchus I Ethelred Monarch of all the Britain of the English Sometimes Ego Ethelred totius Insulae I Ethelred King of the whole Island Subscribes Rex Rector Angulsexna King and Ruler of the Anglo-Saxons That Ireland and other Kingdoms and Dominions were included within this stile will appear by other Charters of the same King Thus he stiles himself Totius Anglorum Gentis Basileos caeterarumque Nationum in circuitu persistentium primatum gerens King of all the English Nation and having the Supremacy over the other Nations living round about At another time he stiles
so far back to shew how it first became a Kingdom I think I have made it evident that he has fail'd in his first Undertaking 2. 'T will be as evident that he is no less injurious to the Right of the English Nation than unhappy in the comparison where he maintains that England may be said much more properly to be conquer'd by W. 1. than Ireland by H. 2. tho in this he has the Authority of Sir John Davis I will agree that the word Conquest was in the times both of W. 1. and H. 2. of a very innocent signification for which he rightly cites Sir Henry Spelman and might have observed a much greater and antienter Authority in a Record of the time of King John referr'd to by Mr. Petyt wherein a younger Brother in a Suit between him and his elder Brother about Title to Land pleads that his Father had it de Conquestu suo and gave it him according to the distinction in Glanvil who wrote in the time of H. 2. between Questus the same with Conquestus and Haereditas 'T is certain the word Conquestus did not in that age imply any thing of that Power which a Prince or State might acquire by Force or Terror of Arms over another Prince or State and therefore I shall make no use of his Admission that H. 2. took Conquestor Hiberniae into his stile contrary to the Authority of Mr. Selden cited in his Margin and to which I cannot but subscribe In truth tho H. 2. was stiled Lord of Ireland I am very well assured none can be found where he is stiled Conquestor Yet Girald an Author of that time calls him Triumphator Hiberniae which is tantamount to Conqueror But since Conquestor when first used signified no more than one who came to a Right which he claimed not by hereditary Descent according to which W. 1. acknowledged that he was made or created King of the English by hereditary Right that is as has elsewhere been shewn and may be more at large was duly let in to the Inheritance of the Crown however the word Conquestor has been in following ages applied both to W. 1. and to H. 2. Let 's consider a little 1. Whether the English Nation ever submitted to W. 1. as a Conqueror in a sense of larger signification than 't was antiently used 2. Whether the Irish Nation submitted to H. 2. or to any other of our Kings more absolutely than the English did to W. 1. 1. Mr. Molineux agrees that E. 3. was the first that us'd the Aera of post Conquestum which indeed was no more than to distinguish the Edwards after the time of W. 1. from the three Edwards which reign'd in England before that time but no body that I know of has yet pretended that W. 1. ever assumed the stile of Conqueror and I dare say no one Author of that time printed or in Manuscript ascribes it to him I must own in some of his Charters he says he gain'd the Kingdom by the Sword having subdued Harold and his Accomplices but besides that Puffendorf's Assertion is undeniable that after a Prince is overcome in a just War till the Subjects consent the State of War continues and there is no Obligation nor Faith and so no Dominion W. 1. did not come to civilize and subdue the People to Laws but to turn out 1 st An Usurper upon the Right of the People upon whom he had imposed himself without any true Election notwithstanding what several antient Authors have affirmed And 2 dly An Usurper upon the Right which W. 1. had by a full and a formal Election he having been elected Successor in the life time of the Confessor which I may hereafter shew with all the Circumstances but shall at present refer only to three Authorities out of many William of Poictiers an Author who lived in the very time informs us that the Confessor sent an Embassy into Normandy suorum assensu by the assent of his People to assure him of the Succession And Ordericus Vitalis has these words Edwardus nimirum propinquo suo W. D. N. primo per Rodbertum Cant. summum Pontisicem postea per eundem Heraldum integram Anglici regni mandaverat concessionem ipsumque concedentibus Anglis fecerat totius juris sui haeredem Edward sent an Embassy to William Duke of Normandy first by Robert Archbishop of Canterbury afterwards by Harold himself acquainting him with the entire Grant of the Kingdom of England and had made him Heir of all his Right with the Consent of the English Which shews in what sense Ingulph who was Secretary to W. 1. is to be understood when he says Eum sibi succedere in regnum voce stabili sancivit That the Confessor with a stable Voice ordained or appointed him to succeed him in his Kingdom 'T is not to be questioned but Ingulph who was an Anglo-saxon and well knew that a King could not dispose of the English Crown without the consent of the States of the Realm would be understood by this that the Confessor's voice or nomination had a Parliamentary Sanction when one of the Norman writers looks upon Harold as a mad-man for not staying to see what a publick Election should determine That W. 1. came only to turn out an Usurper is not all but having done this with a great force the People of England would not receive him for King upon his Victory till they had treated and agreed with him in a Convention at Berkhamstead where as Authors concur foedus pepigit he struck a League with them and was not only obliged to maintain the English Laws in virtue of a mutual Contract but part of the Contract with the Prelats and the Nobility of the Kingdom was That he should be crown'd as the manner of the English Government requires From those Authors who give the heads of his Oath administred by Aldred Archbishop of York 't is plain that he was crown'd according to the standing Ritual in use from the Coronation of King Ethelred and continued to the Reign of H. 1. without any material alteration And Authors as well as the Ritual shew that the people were solemnly ask'd whether they would have him to reign over them to which they exprest their consent in such terms as implied a Grant But the Coronation Oath being only in general terms that King was obliged once at least if not oftner to swear expresly that they should enjoy the Benefit of the Confessor's Laws that Digest of so much of the common Law of England as was in his time thought necessary to be reduced to writing to which some additions were made by that King in Parliament for the benefit of the English That there was nothing like this in the submission of the people of Ireland to H. 2. has appeard above and that he acted according to the import
the Crown of England since as King he could have no other Heir But as this may manifest that the Parliament which made John King of Ireland design'd him no more than a subordinate and vicarious Authority 't is plain he himself did not think he had more in the Seal which he used he stiled himself Son of the King Lord or who is Lord of Ireland Nor is there the least footstep of any Coronation Oath taken by John as King of Ireland or that he ever wore an Irish Crown Notwithstanding that share in the Government of Ireland which John had in his Father's life-time Ireland upon the Father's death fell to R. 1. and the Archbishop of Dublin was assisting at his first Coronation before he went to the Holy War Nor did John ever pretend to be King of Ireland while R. 1. lived more than of England which having attempted while his Brother was in Foreign parts far remote upon his Brother's return he was by Parliament deprived of all his Honours and Fortune And thus at least he lost his suppos'd Royalty of Ireland if it did not expire upon the death of H. 2. and this shews how rightly Polidore judged in calling him Regulus or Viceroy I will therefore admit Mr. M's supposal that R. 1. had not died without Issue but his Progeny had sat on the Throne of England in a continued succession to this day but cannot admit the other part of his supposal that the same had been in relation to the Throne of Ireland since John never had such Throne either before he was King of England nor after and therefore I may well conclude that the subordination of Ireland to the Parliament or even to the King of England need not arise from any thing that followed after the descent of England to King John Nor indeed was John King either of England or Ireland by descent but that Election of the States of the Kingdom of England which made him their King preferring him before Arthur an elder Brother's Son drew after it the Lordship of Ireland as an Appendant to the Crown of England And however if H. 2. had not sufficiently brought the Irish under the English Laws John did after he came to be King of England In the 9 th of his Reign he imposed Laws upon them in a Parliament of England not indeed without the desire and counsel of such English Lords who had Lands in Ireland but then their consent would have been involved in the consent of the majority here tho those Lords should have expresly dissented But the Authority was derived from the consent of the King 's faithful People which is mentioned as distinct from the desire or petition which occasioned the Law then made in a Parliament of England for the expelling Thieves and Robbers out of the King's Land of Ireland For the effectual execution of this Act of Parliament King John's Expedition seems to have been undertaken the next year when he entirely subdu'd his Enemies and confiscated the Estates of some of the English great Men in Ireland Which Confiscation seems to have been after his return to England but before that or at some other time in his Reign he made a Law in Ireland which he commanded to be observed there That all the Laws and Customs which are in force in England should be in force in Ireland and that Land be subject to the same Laws and be govern'd by them This was before any pretence to their having any Charter for a Parliament other than the supposed sending over the modus tenendi Parl. by H. 2. and is before the time that Mr. M. takes a regular Legislature to have been established among them Therefore according to himself we must repute them to have submitted not only to such Laws as had before that time been made in Parliaments of England but such as should be made till they of Ireland should have the establishment of a regular Legislature However Mr. M. will have it that John gave Laws to Ireland not as King of England but as Lord of Ireland and forms a pretty sort of an Argument from the stile of Lord of Ireland as if this were an Argument that 't is not dependent upon the Crown of England so excellent a faculty has he of making contraries serve his purpose But 't is very unlucky that John's retaining this stile is not only an Argument that Ireland is a Dominion or Land appendant to the Crown of England but that John was never King of Ireland which he would certainly have kept up as a distinct Interest if he ever had such a Title separate from the Crown of England H. 3. being made K. of England by the like choice of the States which preferr'd him before Arthur's Sister as they did John before the Brother in concurrence with these States truly acted as Lord of Ireland as might be shewn by numerous Instances In the 18 th of his Reign upon matters signified to him out of Ireland he summoned the Archbishops Bishops Earls Barons and all the great Men or Nobility of the Kingdom of England to a Parliament at London to treat about the State of his Kingdom and of his Land of Ireland And in the 21 of his Reign he sends a Writ to the Archbishops and others of Ireland acquainting them that by the common consent of the Archbishops Bishops Abbots Earls and Barons of the Kingdom of England alterations of the Law of England were enacted as to the Limitations of several Writs which were then required to be observed in Ireland in pursuance of the Statute of Merton In the 37 th of his Reign an Irish man having pleaded that he and his Brother and their Ancestors had always bin faithful to the Kings of England his Predecessors and served them in the CONQUEST OF THE IRISH they are by peculiar licence under the Great Seal of England admitted to enjoy by descent as Englishmen Which was an alteration of the Law and Custom of Ireland as to those particular Persons without any Act of Parliament there Indeed but four years after 't is recorded that 't was long before and many Ages past which must reach beyond the Expedition of H. 2. provided and yielded by the assent and desire of the Prelats and great Men of the Land of Ireland that they should be bound by the Laws us'd in the Kingdom of England Yet the same Record restrains this to the consent of only the English of the Land of Ireland However 't is beyond dispute that the English Laws both made and to be made in England were then held to reach as far as the English Interest in the Land of Ireland and this according to the Record 18 H. 2. above referr'd to was provided de communi Consilio Regis by the King 's Common Council tho by what
Council it must have been provided will more fully appear afterwards I may here explain it by an Instance in that Reign All must agree that the Provisions of Oxford in the 43 d of H. 3. and referr'd to in the Records of the next year were made in as true a Parliament as any in that Reign before the 49 th 't is call'd a Parliament by good Authors and the word is used in the Records of the next year in relation to a meeting on the Borders of Wales The Ordinances and Provisions made at Oxford were drawn up by 12 chosen by the King and 12 by the Commons concerning which the Record has these words Anno ab incarnat domini 1259. Regni autem H. Regis fil Regis J. 43. in quindena St. Mic. conven ips domino Rege magnatibus suis de communi consilio consensu dictor Regis magnatum factae sunt provisiones per ipsos Regem Magnates In the year from the incarnation of our Lord 1259. but of the Reign of K. Henry Son of K. John the 43d the said King and his great Men being assembled in the Quinzism of St. Michael Provisions were made by the Common Council and consent of the said King and great men And yet some of the Entries in the same Roll mentioning Provisions then made are per magnates nostros qui sunt de consilio nostro By our great Men of our Council Others Per magnates de Consilio meo By the great Men of our Council As if 't was by the sole Authority of the King and such noble Men as were of his Privy or Private Council wheâ— those Provisions were certainly made in full Parliament and this was the Council from whence Ireland then receiv'd its Laws However from a Charter in the first of that King's Reign Mr. M. would infer that the English there had their independent Parliaments then established or confirmed tho he afterwards admits that during that King's Reign they might have been bound by Laws made here for want of a regular legislature establish'd amongst them The Charter or rather Writ with which a Charter was sent runs thus Rex Archiepisc Episc Abbatibus Comitibus Baronibus Militibus omnibus fidelibus suis per Hiberniam constitutis salutem fidelitatemvestram in Domino commendantes quam Domino Patri nostro semper exhibuistis nobis estis diebus nostris exhibituri volumus quòd in signum fideliâ—aâ—is vestraetam praeclarae tam insignis libertatibus Regno nostro Angliae à patre nostro nobis concessis de gratiâ nostrâ dono in Regno Hiberniae gaudeatis quas distinctè in scriptum reductas de'communi consilio omnium fidel nostrorum vobis mittimus signatas Sigillis Domini nostri G. Apostolicae sedis Legati fidelis nostri Comitis Mareschalli Rector is nostri regni nostri quia sigillum nondum habuimus easdem processu temporis de Majori consilio proprio Sigillo signatur Teste apud Glost 6. Feb. The King to the Archbishops Bishops Earls Barons Kts. and all our faithful Subjects constituted throughout Ireland Health Commending your fidelity in the Lord which you always shewed to your Lord our Father and are about to shew to 〈◊〉 in our days we will that in sign of your fidelity â—o remarkable so eminent you enjoy in our Kingdom of Ireland the Libâ—rties granted to our Kingdom of England by our Father us which distinctly reduced into Writing we send you by the Common Counsel of all our faithful People Sealed with the Seals of the Lord G. Legate of the Apostolick See of our faithful Subject W. Earl Marshal Regent of us and our Kingdom because we have not yet a Seal intending in process of time by consent of a greater Counsel to seal them with our own Seal Teste at Gloster 6. Feb. How specious soever this may seem 't will neither prove Ireland to have been a Kingdom so early nor to have had a grant of the English Liberties in the same manner as the English enjoyed them that is so as to have no Law imposed upon them without their express and immediate consent to that very Law For 1. 'T is not to be suppos'd but that if Ireland had been a Kingdom before this Charter H. 2. and other Kings of England would have stiled themselves Kings of Ireland rather than Lords because of the greater Dignity of Kingship unless Lord was chosen as implying more absolute Power which would argue that Ireland did not enjoy the English Laws with equal Freedom 2. This Writ mentions no Liberties granted to Ireland but what had been granted to England which besides the improbability that Ireland should 1 H. 3. have a Charter of the same form with that which did not pass in England till 8 Years after shews the spuriousness of the suppos'd Charter preserved in the red Book of the Exchequer at Dublin as dated the November before the Charter sent the 6th of February and however the constant method of sending Laws from hence to be applyed to the use of the Irish without any alteration may sufficiently detect that Charter which has the City of Dublin instead of London 3. The method of sending to Ireland the Laws made here besides what appears upon the face of the Record 6. Feb may satisfie any Body that 't was only a Writ which went along with a Charter or Charters of Laws passed in Parliament here 4. This Writ was before any confirmation of the English Liberties by H. 3. other than general at his Coronation and therefore bating such Confirmation the Charter of Liberties then sent into Ireland must have been King John's which if it be read according to the due distinction of Periods and that Translation which the course of Records both before and after enforces and which the prevalence of Truth has obliged Dr. Brady to yeild to the giving up his whole Controversie with Mr. Petyt and the Author of Jani Anglorum Facies Nova makes express Provision for the City of London all Cities Burroughs and Vills of the Kingdom of England to enjoy all their Liberties and Free-Customs and among the rest to be of or to be represented in the Common Council of the Kingdom But Ireland had no City of London to claim this Privilege nor could any City of Ireland be included any otherwise than as part of the Kingdom of England and therefore subject to the Laws which should be made here 2. This could not be as extensive to Ireland as 't was to England since it could not have extended beyond the English Pale there and such particular Districts as enjoy'd the English Laws of special Favour Therefore the Charter then sent by H. 3. could as to this Matter be no more than a Memorial of that Supreme Law according to which England with all the Dominions belonging to it was
King's Realm of England and of Ireland And it enacts the form of a Writ upon that Statute which was to be current in Ireland upon several accounts 1. By the Letter of that Law which was ordain'd for the Benefit of Merchants in Ireland as well as in England 2. If it had not been named the being transmitted to Ireland from a Parliament here was a sufficient ground for their observing it 3. Such observance was included in the terms of their Submission above one Hundred Years before 4. The Writ without any particular Provision became a legal and current Writ in Ireland by virtue of an Act of Parliament here 30 H. 3. which for the common Profit of the Land of Ireland and unity of the King's Lands provided that the Common Law Writs should have the same currency in Ireland that they have here Without enquiring what Records they have in Ireland of Statutes Staple from the 13 th of E. 1. when this Statute which settled them was sent thither 't is certain that from that time the English in Ireland were bound by it and so held to be in subsequent Statutes of this Realm confirming this Statute or supplying its defects But what pity 't is that neither Judge Bolton nor Mr. M. thought of an Act of Parliament in Ireland to confirm that Statute 12 E. 1. This was enacted in the Year 1284. which was above 350 Years before that fatal Aera of Innovations 1641 from whence it seems Calamities of all kinds are to be dated But I should think here is at least one positive Precedent before that time of an English Act of Parliament's binding the Kingdom of Ireland And to me it seems as plain that in the Judgment of the Parliament 13 E. 1. Ireland tho not named was bound by a Statute made here for which I shall refer him to the Interpretation then made of the extent of the Statutes of Gloster which had been enacted in the 6 th of that King's Reign Some would think those Statutes to have been no more than Ordinances made by the King and his Counsel only and that our Kings thus made Ordinances of that kind some may gather from Fleta who speaks of the King's Counsel in which not only erroneous Judgments were corrected but new Remedies provided yet Fleta speaks this of the King's Counsel in his Parliaments and thus tho' the Statute of Westm 2. seems to restrain the making that of Gloster to the King and his Council the Statute of Gloster it self shews that the Counsel was to be taken as acting in conjunction with the Prelates Earls and Barons and that under the word Barons the Commonalty were included as as lower Nobility or dignified by their Election to Parliament accordingly the Statute of Gloster says suitably to latter Writs of Summons the more discreet of the Kingd as well Great as Small were Summon'd So that the Statutes of Gloster were made as other Statutes 3 E. 1. by that King's Counsel and by assent of the Commonalty where the Lords were manifestly included under the word Counsel agreeably to the ancient form of Writs of error or other Writs returnable into Parliament before us and our Counsel in our Parliament or at our next Parliament after or at such a time there to do what the King shall think fit to ordain by advice of his Counsel For evidence that this did not exclude the Lords I may refer to the Roâ—â—s of Parliament of several Reigns and particularly to those of the 20 th and 21 st of E. 3. In the 20 th the Commons are desired to deliver such Petitions as were then ready to the Clerk of the Parliament which Petitions are said to be brought before the Great Men of the Counsel That they were but of the nature of a Committee to inform the King and Lords of the Bills or Petitions which came from the Commons appears by the Proceedings of the next Year when the Commons having made Petitions of an extraordinary nature the King answers He will advise with the Lords To return to the Statute of Gloster there the King by such advice as I have shewn made Laws for the amendment of his Realm and for the plenary exhibition of Right as the profit of the Regal Office requires and to remedy mischiefs dammages and disherisons suffer'd by the People of the Realm of England without the least mention of Ireland And yet we have the judgment of the Parliament in the 13 th of that King that Ireland was within the remedy of that Statute as part of the Realm of England as appears by this Preamble Where of late our Lord the King in the Quinzisme of St. John Baptist the Sixth of his Reign calling together the Prelates Earls Barons and his Counsel at Gloucester and considering that divers of this Realm were disherited by reason that in many cases where remedy should have been had there was none provided by him nor his Predeceâ—sors ordained certain Statutes right necessary and profitable for his People whereby the People of England and Ireland under his Government have obtained more speedy justice in their oppressions than they had before and certain Cases wherein the Law failed remain undetermined and some remained to be enacted that were for the reform of the oppressions of the People Our Lord the King in his Parliament after the Feast of Easter holden the 13 th of His Reign at Westminster caused many Oppressions of the People and defaults of the Laws for the supply of the defects of the said Statutes of Gloster to be rehearsed and made Statutes as will appear here following This rehearsal of the Grievances was for certain by the Petition of the Commons of this Realm and the Statutes there made as the Register of Writs has it were by the Common Counsel of the Kingdom And this Counsel not only declared Laws which were binding to Ireland but made new tho' Mr. Molineux will have it that from the time of Magna Chata to the 10 th of H. 7. no Laws were or are in force in Ireland unless allowed of by Parliament in that Kingdom except only such as are Declaratory of the Common Law of England and not Introductive of any new Law And whereas he is pleas'd to say As to such English Statutes as seem to comprehend Ireland and to bind it under the general words of all his Majesty's Dominions or Subjects whatever has been the opinion of private and particular Lawyers in this Point I am sure says he the Opinions of the Kings of England and their Privy Council have been otherwise I may say upon much better grounds if any King and His Privy Council did any thing to Warrant this Assertion the Judgment of E. 1. and His Council in Parliament was to the contrary and is of greater Authority And 't is to be remembred as I before shewed that
THE History and Reasons OF THE Dependency of IRELAND UPON THE Imperial Crown OF THE Kingdom of ENGLAND Rectifying Mr. Molineux's State of the Case of Ireland's being bound by Acts of Parliament in England Actum erat de foecundissimâ gente Si libera fuisset Plin. Panegyr LONDON Printed for Dan. Brown at the Black Swan and Bible without Temple-Bar and Ri. Smith at the Angel without Lincolns-Inn Gate near the Fields 1698. To the Honourable the Knights Citizens and Burgesses in Parliament Assembled YOur House and they to whose Rights You succeed having for several Ages been the Principal Support of the English Monarchy the Enemies to so excellent a Constitution have thought it could never be more effectually undermined than by the drawing your Rights into Question and thus have many made 〈◊〉 their deceitful Courts to Princes 'T is not for me to determine whether Malice or Sycophantry have induced some to deny your being in any manner invested with that Authority which they officiously ascribe to the Kings of this Realm and their Council of Lords or rather Privy Council to the derogating from the Lords in Parliament no less than from You. I conceive it allowable for me to joyn the Men of this assurance with Dr. Brady and other Advocates for Despotick Power who have contended that your first Presence or Representation in the National Council began by Rebellion in the 49. of H. 3. which being taken as proved they conclude that Kings may as well set you aside as a Subject may any obligation extorted by threats and duress And whoever has made any attempt towards the removing that Corner Stone for Tyranny has been sure to incur the imputation of promoting Anarchy as if your venerable Body did not in the least interpose between those two Extremes The fairest colour which the Men of Foreign Notions and Allegiance have for their premises is from King John's Charter which as they imagine has declared or establish'd the Tenents of the Crown in Chief to be the only legal Members of the Common Council of the Kingdom the far different sense of which Charter I may well say 't was my fortune to find and evince upon my first enquiry into the Nature of our Government since the force of truth has obliged even Dr. Brady to yield it up to me after all the hard Words which he had given me on that occasion Nor has he offered the least Shadow of Evidence against my List from Domesday Book shewing that notwithstanding the supposed Conquest of this Land by W. 1. they who had not forfe ted their Estates enjoyed them upon or under Titles Priour to his Entrance without relation to any Grant or Confirmation from him Permit me to say that the Researches in which this Controversy engaged me have in some measure enabled me to assert your Authority in the highest Instances of the exercise of Power aud to make out by Deduction and numerous Presidents what you have as 't were by Intuition that Ireland as 't is annexed to the Imperial Crown of this Kingdom is subjected to that Authority which is and must be absolute and yet can never be gaievous because of your share in it Tho the bold denial of this has already receiv'd your just censure of being of dangerous Consequence to the Crown and People of England Yet if I may use the Allusion I might observe that 't is not held improper to make Comments upon the Sacred Text to explain it to Vulgar Understandings Which I should hope may plead in my Excuse if not Justification while I am proving that as you have rightfully concurred with the Lords in giving Ireland a King by filling the Vacant Throne and that Glorious Preserver of your Liberties has with the Advice and Consent of the States of this his Realm made Laws with a declared intention of binding Ireland these Acts of Sovereignty are not only agreeable to the Laws of Nature and of Nations but warranted by the Ancient Constitution of this Monarchy The foundation of which while I have been labouring to clear from that Rubbish which would render it unstable it has happened with me as with those who having exhausted themselves in working a rich Mine are forced to leave the bright Oar to them that come after And thus 't is likely to be with those Collections which I have by me concerning the Fundamental Constitution of this Government by which I had flattered my self that I must have contributed towards the Peace and Happiness of my Country in shewing the admirable Harmony that there is between the constituent parts of this Empire how strong and beautiful they are in their due order How conspicuous that Degree of the Baronage or Nobility of Engl. which you 're present has been in all the Ages of this Monarchy in maintaining its Glory what Persuasive Reasons both Prince and People have to be satisfied with their several and yet common Interests and how little they are to be thought Friends to either who prompt them as the Learned Grotius has it In partem non suam involare Whither I have been any way serviceable to the Publick or can yet serve it according to my Zeal is submitted to the Collective Wisdom of the Nation The Judgment is with you who if you should not think this or any of my former labourous Effects of Idleness as the Poet calls the Writing of Books worthy of your Protection or Notice I doubt not will extend your Pardon to Endeavours consecrated to your use By Your Most Faithful and Affectionate Humble Servant W. Atwood The History and Reasons of the Dependency of Ireland upon the Imperial Crown of the Kingdom of England c. AS there 's no need of staying for Publick Authority or Encouragement to oppose an open Invasion upon the Rights of my Country I cannot but think it my duty to make a stand till better help come in with Arms taken up on a sudden and that the rather since by a shew of Precedents and popular Positions some lovers of English Liberties are drawn in to join with the Invaders nor do I wonder to find Sufferers under Arbitrary Reigns easy to be misled by a seeming Advocate for mankind who undertakes the Cause of the whole Race of Adam And yet to any man who will be at the least pains to think of Consequences 't will be manifest that the Liberty which the Gentleman whom I oppose contends for as the inherent Right of all mankind would be a total exemption from all Laws and Government except such as Adam had a right to in the state of Nature and for want of knowing who has the title of Descent from him would turn all Nations to such Commonwealths wherein every Paterfamiliâs is an independent Soveraign If men were to be considered in such a state I will agree with him That on whatsoever ground any one Nation can challenge Liberty to themselves
himself Ego Ethelred Rex Anglorum aliarumque gentium in circuitu persistentium I Ethelred King of the English and other Nations living round about And the same stile he uses in the Year 1001. tho as appears above in another Charter of the same Year he stiles himself only King of the whole Island And in another at the beginning of his Reign only King of the English W. I. generally stiles himself no more than King of the English or King of the English and Duke of Normandy Yet as one of his Charters has it he was the most powerful of all the Kings of that time ruling the greatest Empire of England That other Nations were then held to be Dependencies upon the Kingdom of England appears by a Charter of his in the 15 th of his Reign which begins Ego Gulielmus Deo disponente rex Anglorum caeterarumque gentium circumquaque persistentium Rector Dux Normannorū I William by God's Disposal King of the English and Ruler of the rest of the Nations round about and Duke of Normandy After his time his Successors till H. 2. left the Dependencies of England out of their Stile adding only other Dominions which they had as distinct and independent Thus H. 1. to mention no other stiles himself King of the English and Duke of Normandy but before the death of his Brother Robert only King of the English Not here to bring other Evidences of the continuance of the Superiority over Ireland to turn Mr. Molineux his Argument upon him if I shew the Church of Ireland to have been then dependent upon or under the Church of England he must not deny but the State was too Archbishop Parker who must be allowed to have seen and understood the Evidences of the Rights of the See of Canterbury and is agreed to be a faithful Collector speaking of the time of H. 1. shews that upon the vacancy of the Bishoprick of Waterford Murchertach King of Ireland with the Bishops all the Nobility and the Clergy and People of the Island sent to Anselm Archbishop of Canterbury desiring Quatenus ipse primatûs quem super eos gerebat potestate quâ fungebatur Apostolicâ fretus Authoritate sanctae Christianitati ac necessariae plebium utilitati eis subveniret That by the Power of the Supremacy which he had over them and the Apostolical Authority which he enjoyed he would be aiding to holy Christianity and the necessities of the people At their request he upon the death of the Bishop of Dublin consecrated one Malchus whose Bishoprick Pope Eugenius raised into an Arbishoprick But notwithstanding the Popes Eugenius and Adrian had constituted Archbishops there yet they all acknowledged the Supremacy of the See of Canterbury in all things And after Archbishop Parker had enumerated 33 Bishopricks in Ireland he adds Hi omnes 33 Episcopatus usitato antiquissimo regni jure ac instituto Cantuar sedi ut Metropoli parent All these 33 Bishopricks by the accustomed and most antient Right and Constitution of the Kingdom obey the See of Canterbury as the Metropolis If it were doubtful whether he meant that this Right was by the antient Constitution of the Kingdom of England the former Authorities make it evident that it was However I shall confirm them with two more Gervace of Canterbury who lived in the time of H. 2. speaking of Lawrence Archbishop of Canterbury who succeeded the reputed English Apostle Austin says He not only took care of the new Church gathered out of the English but of the old British Inhabitants and also took care of his pastoral Charge over the Scots who inhabit Ireland an Island very near Britain Bromton an Author who is cited by Mr. Molineux mentioning the Dispute about Superiority in the Great Council or Parliament at Winchester in the beginning of the Reign of W. 1. between Lanfranc Archbishop of Canterbury and the then Archbishop of York says Ubi Historia Bedae perlectâ monstratum est à tempore primi Augustini usque ad ultima Bedae tempora quod circiter centum quadraginta annos erat Cantuar. Arch. primatum super totam Britannicae Insulam Hiberniae gessisse Where the History of Bede having been read 't was shewn that from Austin's first coming to the end of Bede which was about 140 years the Archbishop of Cantorbury held the Primacy over the whole Island of Britain and of Ireland Thus I think 't is past dispute that a superiority of Government both in Church and State was vested with the English and by consequence in the Crown of England as the Head from the 6 th of King Edgar at the latest to the year 1151. when the Jurisdiction of Anselm Archbishop of Canterbury was submitted to by the Irish as the antient and undoubted Right of that See Nor can it be imagined without some account of the Circumstances that the Superiority and Authority of England should have been lost in less than 22 years when Mr. M. supposes the Pretensions of England to have had their first ground He will have H. 2. his landing in Ireland to have been occasioned only by a fortunate Expedition thither by some of his Subjects a little before in assistance of some of the Princes or Kings of Ireland who had been oppress'd by a too powerful Neighbour and would insinuate as if the Deliverers were only entituled to be paid for the assistance which they gave and he is so bountiful as to allow that England ought to be repaid all their Expences in suppressing the late Rebellion But as England has supprest that Rebellion against the English Crown it appears by what has been above cited that the disputes between the Kings of Ireland only gave H. 2. opportunity and encouragement to assert the Authority of the English Nation and to restore to the Crown the possession of the City of Dublin and so much of the English Pale as could then be gained with such addition as they could make in a just War to secure those Bounds which had been invaded and usurped upon by a barbarous Enemy In this H. 2. was not to be blamed for that Ambition which has carried Princes to make Conquests since his Expedition was no more than he was obliged to as King of England For as the Confessor's Law has it Debet vero de jure Rex omnes terras honores omnes dignitates jura libertates coronae regni hujus in integrum cum omni integritate sine diminutione observare defendere dispersa dilapidata omissa regni jura in pristinum statum debitum viribus omnibus revocare But the King ought of right to keep and defend all the Lands and Honours all Dignities Rights and Liberties of the Crown of this Kingdom with all integrity and without diminution with all his might to bring back
ratification of the King's Majesty's Stile by the King with the assent of the Lords Spiritual and Temporal and the Commons in that Parliament assembled and by the Authority of the same enacting that all and singular his Grace's Subjects and Resiants of or within this his Realm of England Ireland and elsewhere with other his Majesty's Dominions from thenceforth accept and take the King's Stile in manner and form following H. 8. by the Grace of God King of England France and Ireland Defender of the Faith and of the Church of England and also of Ireland in Earth the supream Head And 't is enacted that the said stile shall be from thenceforth by the Authority aforesaid united and annexed to the Imperial Crown of his Highness's Realm of England This related to all Ecclesiastical Power as well as Civil in Ireland as well as England In pursuance of this the Statute 1 Eliz. for the extinguishing all usurped and Foreign Power and Authority Spiritual and Temporal which had been used within this Realm or any other her Majesty's Dominions or Countries enacts That no Foreign Prince or Prelat shall enjoy any Power Jurisdiction Superiority Authority or Privilege Spiritual or Ecclesiastical within this Realm or within any other her Majesty's Dominions or Countries but that such Power c. shall be abolished out of this Realm and all other her Highness's Dominions And that all Power of visiting and correcting for Heresies Schism c. shall for ever by Authority of that Parliament be united and annexed to the Imperial Crown of this Realm Ecclesiastics were to swear that they would maintain all such Jurisdiction Privileges Preeminence and Authority as granted or belonging to the Queen's Highness her Heirs and Successors or united to the Imperial Crown of the Realm And the Queen is impowred to issue out Commissions for the executing that Act. This Statute bound Ireland by plain intention as that 34 and 35 H. 8. did in express words But Mr. M. will have it a mighty Argument that this was of no force in Ireland till received by a Parliament there because after it had bin repealed in England by one Act and another since the Revolution has declared such Commissions to be illegal yet the Chancellor and others in Ireland have held it to be still in force there But 1. He ought to have shewn that the Statute here repealing so much of the Statute of the Queen as plainly exprest an intention that no such Commission should be granted in Ireland as the Statute of the Queen did that Ireland should be subject to the same Ecclesiastical Authority and in the same manner that England was nor is it to any purpose for him to cite the Declarations in the late Statute of the illegality of such Commissions unless that Act had damn'd such Commissions not only as being contrary to the Act of Repeal but not to be warranted by the Statute of the Queen but then this would have condemned the Resolution which he cites of the Authority of such Commissions still in Ireland 2. Admit Mr. M. should prove that the Statute made in England taking away the Authority of such Ecclesiastical Commissions here as plainly intended to reach Ireland 't will afterwards appear that unless Mr. M. shew that this Act had been transmitted to Ireland under the Great Seal of England the supposition that such Commissions may still be legally executed in Ireland will not in the least derogate from the Authority of the Parliament of England 3 dly But how contrary his supposal of an independent Authority in the Parliament of Ireland is not only to the Laws of reasoning but the Authorities of all times from H. 2. downwards has already appeared in some measure and may farther by some Authorities out of many which will manifest that the Rights of the Crown of England to impose Laws upon Ireland by virtue of prior submissions and consent is so far from being departed from that 't is strengthned and confirmed by long exercice and submission to it Mr. M. considering the State of the Statute Laws of England under H. 2. King John and H. 3. agrees That by the Irish voluntary submission to and acceptance of the Laws of England we must repute them to have submitted themselves to these likewise till a regular Legislature was established among them in pursuance of that voluntary submission and voluntary acceptance Yet he soon forgets this Concession and would have it that the men of Ireland were not bound by new Laws but that the Grants of Liberties from Edward the Confessor's time down to H. 3. were only declaratory Laws and confirmations one of another and that thus Ireland came to be govern'd by one and the same common Law with England I must confess I could not but smile at his Marginal Note upon the proceedings of the Parliament at Oxford in the Reign of H. 2. by this Ireland made an absolute separate Kingdom And in the Body of his Book he says We shall observe 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 and did so continue until the Kingdom of England descended and came unto King John But to help him to understand this matter I shall mind him of another passage in Hen. II's Reign As he placed his Son John in Ireland he to secure the Succession of the Imperial Crown of England to his eldest Son Henry caused him in a Parliament to be chosen and made King of England while Henry the Father was alive Now did the Father by this separate England from his own Jurisdiction No certainly and indeed in the Oath to the Son and the homage perform'd both at the Coronation and afterwards by the King of Scots there was a particular saving of the Allegiance and Homage due to the Father Thus both Hoveden and Bromton shew that 't was in relation to the constituting John King of Ireland as they call him they are express that they to whom the Lands of Ireland were distributed in that very Parliament which gave John his Office and Authority were sworn to the Father and the Son And Mr. M. might have observ'd that a Charter pass'd in that Parliament and cited by Sir John Davis grants to Hugh de Lacy large Territories in the County of Methe to hold of H. 2. and his Heirs Whereas if Ireland had been given as Mr. M. will have it to John and that thereby 't was made an absolute Kingdom separate and wholly independent on England The Tenure must have been of John and his Heirs The Oath of Allegiance which in those days used to have no mention of Heirs was to H. 2. as King of England and went along with the Crown but the Tenure reserved was expresly to the Heirs of H. 2. which must relate to the legal Successors to
the Statutes of Gloster which do not Name Ireland and the Statutes of West â— which do were both delivered to the Clerk of the Justice of Ireland in order to their being published and observed there And 't is evident that Ireland's being bound by Parliaments in England without any consent expressed in Ireland was not merely the Judgment of the times above referred to but the setled Judgment of that King and His Council in His Parliaments Thus in the 8 th of that King there 's a Writ taking notice that the Irish had desired to be governed by the Laws of England upon which the King requires all the English of the Land of Ireland to Certifie whether this might be granted without pre judice to them declaring that the King would make such Provision as should seem expedient to Himself and His Council which plainly enough referred to His Council in Parliament If upon their Certificate a general Law had passed to grant the Irish their Request the mentioning the consent of the English there could not be thought to derogate from the Legislature here the Authority of which was intimated in that very reference and was fully asserted in that Kings Reign by an Act of Parliament made here after that time and the Proceedings thereupon both in England and Ireland By the Case of mixt Monies in Ireland we are informed that 29 E. 1. when by the King 's sepecial Ordinance the Pollards and Crochards were cry'd down and made of no Value the same Ordinance was transmitted into Ireland and Enrolled in the Exchequer there as is found in the Red Book of the Exchequer there And agreeably to this it appears by the Statute Roll here that this Ordinance which in truth was an Act of Parliament or else an other of the same kind was sent to John Wogan then Chief Justice of Ireland or to his Lieutenant This is only a short Entry referring to the known usage But the very next Record of a transmission to Ireland of a Statute made here which was that about Juries is more express Mem. quod istud Statutum de verbo ad verbum missum suit in Hib. T. R. aput Kenynt 14. die Aug. Rni sui 27. Et mandatum fuit J. Wogan Justic Hib. quod praed Stat. per totam Hib. in locis quibus expedire videret legi publicè proclamari firmiter teneri faciat Mem. That that Statute word for word was sent into Ireland Teste the King at Kenynton 14. Aug. in the 27th of his Reign Command was gito John Wogan Chief Justice of Ireland to cause it to be read in those places in which he shall think it expedient and to be publickly Proclaimed and Observed This Statute does not name Ireland nor has general words which seem to include it But it seems some years after to have been Enacted that this Statute should be transcribed and sent to Ireland for a Law given them by Parliamentary Authority In the 35 th of E. 1. Will. De Testa was Impeach'd in Parliament for grievous Oppressions and Extortions upon the People by Colour of Authority from the See of Rome This upon the Petition of the Earls Barons and other Great Men and the Commonality of the whole Realm of England occasioned general Law and Provision for the State of the King's Crown and also of His Lands of Scotland Wales and Ireland The Remedy was Enacted by the Assent of the King and the whole Council of Parliament and 't was Enacted that for the future such things should not be permitted within the Realm That Ireland was then included as part of the Realm appears not only by the intention before declared but agreeably thereunto The Statute then made is by Authority of Parliament sent to the Justice of Ireland as well as to the Chief Governors of other the King's Dominions enjoyning them to enquire and proceed against those who had offended in that kind and to cause the Provision Agreement and Judgment of that Parliament to be Firmly and Inviolably observed in those Lands Mr. M. having as he thinks answer'd an Objection from the Ordinance for the State of Ireland Printed in our Statute-Books not only that of 1670. but even in others much more Ancient as made 17 E. 1. I shall shew him some new Matter which may deserve his farther Consideration and yet tho' he thinks he has prov'd 1. That this Ordinance was never receiv'd in Ireland 2. That 't was meerly an Ordinance of the King and His Privy Council in England it might be enough to observe That the Clause which he Instances in forbidding the King's Officers to purchase Lands there upon pain of Forfeiture has an Exception for the King's Licence and tho' he has not been at the pains to examine whether there were any such Licences from England I can shew him in the very next Year a confirmation under the Great Seal of England of a grant of Land 's there before made from hence which were sufficient security against the forfeiture 2. If 't were admitted that the Ordinance were made by the King and his Privy Counsel 't would be very difficult for him to prevail upon many to believe that a Land or Kingdom which in all the principal Parts of Government was under the controul of the Great Seal of another Kingdom was as he pretends a complete Kingdom within it self or a Kingdom regulated within it self the contrary of which appears in numerous instances of the time of which we are at present enquiring as of leave from hence to chuse Ecclesiastical Governors Pardons Directions for the Proceedings of the Courts of Justice and Council in Ireland the appointing distinct Courts of Judicature Grants of Lands Offices Liveries out of the King's Hands of Lands held in Chief of the Crown of England Licences of alienation and the like Further than all this there 's a Precedent of taxing Communities by Authority from hence It must be agreed that 't was frequent for Kings to grant to Cities and Towns in England power to raise Customs or Duties for Murage the building or repairing their Walls to be levyed upon Goods and Merchandizes brought thither in these Grants there was no mention by what advice or consent they issued but 't is to be presumed that the Great Seal was not rashly affixed nor were they extended farther than to the Walls which secured the Persons and Goods of those who paid the Duty yet the Great Seal of England has been applyed much more absolutely to the binding the property of the Subjects in Ireland as may appear by this Record R. Ballivis probis hominibus sâ—is Dublin Salutem Cum in subsidium villae claudendae vobis nuper per literas postras Pat. concesserimusquod quasdan consuetudines usque ad certum tempâ—s de singulis rebus venalibus ad eandem villam
be executed even in Palatinates nor does it appear that the King's Council in Parliament disallowed of their Proceeding â— for nothing was done upon this â—etâ—tion any more than referring it to the next Parliament In the Case of one Allen Fitzwaren they Ordered a Writ from the Chancellor of England to require the Justice of Ireland to examine whether a Judgment about Title of Land had been given while a Man was absent and under the King's Protection requiring that if any thing was done contrary to Protection it should be amended in due manner And as the Lords in Parliament then exercis'd a Jurisdiction over Ireland it appears that out of it the High Admiral of England had Conuâ—ance of all maritime Causes as well throughout Ireland as England from the time then beyond the memory of Man which must relate to the general Prescription which is at this day as far since as the beginning of R. 1. Son to H. 2. That during the Reign of E. 1. Irel. was govern'd as a part of England or appurtenant to it and that the Laws made here wanted no other Publication than what was in obedience to the Great Seal of England affixed to Writs and Charters or Exemplifications of our Acts of Parliament by Authority from hence I think may be beyond dispute which might excuse my not dwelling upon the unfortunate Reign of E. 2. and yet there are some evidences not to be neglected of England's being then possess'd of its ancient Authority over Ireland and that tho' at least from the 3 d. of that King's Reign Mr. M. supposes that they had a regular Legislature in Ireland In the 10 th of that King the English in Ireland petitioned him for a Constitution that a Parliament should be holden there once a Year Upon this and other things then desired the King under the Great Seal of England commands the Justice of Ireland to Summon a Parliament there to consider what was sit to be done and to certifie the result into England upon which the King declared that he would by the advice of his Counsel ordain what should be sitting but nothing more appears of that matter which was the farthest step towards settling an Annual Parliament in Ireland In the 12 th of that King an Act of Parliament was made in England with this Preamble Forasmuch as divers People of the Realm of England and of the Land of Ireland have hereto fore many times suffered great Mischiefs Damage and Disherisons by reason that in some Cases where the Law failed no Remedy was ordained and also forasmuch as some points of the Statutes heretofâ—re made had need of Exposition our Lord King Edward Son to King Edward desiring that full Right may be done to his People at his Parliament holden at York the third Week after the Feast of St. Michael the 12th Year of his Reign by the Assent of the Prelates Earls Barons and the Commonalty of his Realm there assembled hath made these Acts and Statutes following the which he willeth to be observ'd in his said Realm and Land Though Ireland is in some sense part of the Realm of England yet here 't is distinguished as a Land intended to be bound tho it had no Commonalty of its own to represent it in Parliament and there is new Remedy provided where the Law had failed as well as the explaining what was Law before that part at least which creates a Forfeiture of Wine and Victuals sold by any Officer appointed to look after the Assises of them was absolutely new This Statute was transmitted to Ireland by the following Writ under the Great Seal of England and the Name of the Party who received it is enter'd upon Record Rex Cancel suo Hibern ' Salutem Quaedam statuta per nos in Parl. nostro nuper apud Ebor ' convocato de assensu Prel Com. Bar. totius Communitatis regni nostri ibid ' existentis ad Commun util regni nostri ac terrae Hibern ' edita vobis sub sigillo nostro mittimus consignata Mandantes quod Stat illa in dicta Cancel lariâ custodiri ac in rotulis ejusd Cancel irrotulari sub sigillo nostro quo utimur in Hiberniâ in forma patenti exemplificari ad singulas placeas nostras in ter praed singuloâ— comitat ejusd ter mitti facias brevia nostra sub dicto sigillo minist nostris placearum illar Vicecom dict Com. quod statuta illa coram ipsis publicari ea in omnibus singulis suis artic quantum ad eor singulos pertinet â—irmiter faciant observari Teste R. apud Clarendon 10 die Sept. An. quarto decimo The King to his Chancell of Ireland Greeting We send you under our Great Seal certain Statutes made by us in our Parliament lately called together at York with the Assent of the Prelates Earls Barons and all the Commons of our Kingdom there assembled for the Common Vtility of our Kingdom and Land of Ireland Commanding you that those Statutes be kept in the Rolls of the said Chancery to be enroll'd and exemplified in the Form of a Patent under our Seal which we use in Ireland and thaâ— you cause it to be sent to every one of our Places in the said Land and every County of the same And our Writs under our said Seal commanding our Officers of those Places and Sheriffs of the said Counties to cause those Statutes to be published before them and in all and singular their Articles which to every one of them appertain to be firmly observ'd Teste the King at Clarendon the 10th of Sept. in the 14th of his Reign In the same Roll there 's another Writ of the same Form dated at Nottingham 20 Nov. sending to the Chancellor of Ireland the Stature of York and another made before at Lincoln These Entries explain the general Transmissions and shew what was to be done by the Justice of Ireland in order to the publication of Laws made in Parliaments here and sent to him but yet he had no need nor authority to call a Parliament in Ireland for the publishing any Law made here unless particularly required under the Great Seal of England Yet I cannot but admire the force of Mr. M's Imagination in framing an Argument on that very Year that those Statutes were sent to Ireland That the Parliament of England did not take upon them to have any jurisdiction in Ireland because the King sent his Letters-Patents to the Lord Chief Justice of Ireland commanding that the Irish Natives might enjoy the Laws of England concerning Life and Member to which he had been moved by his Parliament at West-minster which is as much as to say they used no Jurisdiction because they did That after this time that King and his Parliament exercised Jurisdiction over Ireland appears by the Ordinance made for the State of Ireland in a Parliament held on the Octaves of St. Martin in the
17th of his Reign and not of E. 1. for which I shall refer not only to what I before observed which may give reasonable satisfaction that no such Ordinance could have been made in the 17th of E. 1. but to the Statute-Rolls where this is entered among the Statutes of the time of E. 2. next above the Statutes of the time of E. 3. For maintaining the Jurisdiction of England that Statute of Nottingham ordains That no Pardon for Felony be granted by the Justice of Ireland nor Seal'd with the King's Seal there without special Command of the King under some one of his Seals of England 1. It being so manifest from undoubted Records that the Parliaments of England to the 17 th of E. 2. exercised an Authority in making Laws to bind Ireland and that there was a plain and known Method for publishing those Laws in Ireland by virtue of the Great Seal of England I hope it will be allowed that the Authority of Sir Richard Bolton's Marginal Note in an Edition of the Irish Statutes is not enough to induce Men to believe that in the 13 th of E. 2. the Statute of Merton 20 th H. 3. and some other Statutes made in England were confirmed in Ireland as being of no force there till then And that no other Statutes made in England were of force in Ireland till confirm'd there Can any Man think that no part of the Statute of Merton was received for Law in Ireland till the 13 th of E. 2. particularly will even Mr. M. believe that notwithstanding the Record 21. H. 3. of Transmission of so much at least of the Statute of Merton as relates to the Limitation of Writs yet till the 13 th of E. 2. the descent in a Writ of Right was to be lay'd from an Ancestor of the time of H. 1. which is 200 Years within One Or does he think that the Justice of Ireland for the time being would not have been turn'd out if not impeached had he not caused the Statutes of West 1. and 2. and the Statutes of Gloucester to have been Proclaimed and Observed in Ireland after they had been delivered to his Clerk in the Parliament at Winchester and yet if there be any thing in Mr. M s Quotation from Sir Richard Bolton these were not received for Laws in Ireland till 13. E. 2. But since 't is manifest that those and the other Statutes afterwards sent over in the time of E. 1. and E. 2. must needs have been put in Execution there if there were any such Act of Parliament 13. E. 2. as Mr. M. takes for granted upon no Authority in comparison with the Records which I have cited as to so much of any Acts of Parliament made here as was not transmitted in the form above shewn the Enacting them in in Ireland might be the first Publication there But as to what was contained in the Patent or Charter sent thither it could be no more than a Declaratory Law or rather Republication Sometimes there might have been a special form of Transmission which as one means of publishing the Laws might require their Parliament to meet to hear Laws read to them which would bind them whether they consented or no or by Writ from hence a Law or Charter pass'd there might be so republished Thus 't was beyond Contradiction 12. H. 3. when a Charter of King John's Sworn to by the Irish was either sent back or republished after it had lain there Rex dilecto fideli suo Ric. de Burgo Justic suo Mandamus vobis â—irmiter praecipientes quatenus certo die loco faciatis venire coram vobis Arch. Ep. Ab. Pr. Com. Bar. Mil. libere tenentes Ballivos singulor Comitat coram eis publice legi faciatis cartam Dni J. Regis Patris nri cui Sigillum sum appensum est quam fieri fecit jurari à Magnatibus Hib. de legibus consuetud Anglicis observandis praecipiatis exparte nostrâ quod leges illas consuetudines in carta praed contentas de caetero firmiter tenennt Et hoc idem per singulos Comitatus Hib. clamari faciatis teneri Prohibentes firmiter exparte nostrâ super forisfactur nostram ne quis contra hoc Mandatum venire presumat The King to his Beloved and Faithful Subject Richard de Burgh his Justice of Ireland we command you firmly requiring that at a certain day and place you cause to come before you the Arch-Bishops Bishops Abbots Priors Earls Barons Knights Freeholders and the Bailiffs of every County and before them cause publickly to be read the Charter of King John our Father to which his Seal is affixed which he caused to be made and sworn by the great Men of Ireland concerning the observing in Ireland the Laws and Customs of England And command them from us that they for the future firmly keep and observe the Laws and Customs in the said Charter contained And cause this same to be Proclaimed thro' every County of Ireland firmly Prohibiting in our Name and under our Forfeiture that no person presume to the contrary of this our Command All must agree that this Publication in so formal a Parliament and after that in the several Counties was not necessary to give Sanction to that Charter for that it had before And could be no more than a reminding them of their Duty or a more solemn Publication of the Law But that being a Law made here was held sufficient to make it a Law to the English in Ireland and that being transmitted thither under the Great Seal of England it became a Rule to the Judges there even in matters happening before the transmission appears by the following Precedents A Man having been redisseis'd after the Statute of Merton 20. H. 3. which had made a Redisseisour lyable to Imprisonment A Party who had been so injured applies to the King for Remedy and as the Writ to the Justice of Ireland has it Ideo vobis mittimus sub sigillo nostro constitutionem nuper factam coram nobis Magnatibus nostris Angliae de praedicto casu similiter de aliis artiâ—ulis ad emendationem rni nri Mandantes quat de consilio venererab Pat. L. Dublin Arch. constitutionem illam in Curiâ nostra Hib. legi de caetero firmiter observari faciatis secund eandem praed querenti plene justitiam exhiberi faciatis Therefore we send you under our Seal the Constitution lately made before us and our great Men of England concerning that Case and other Articles for the Amendment of this our Kingdom commanding That with the Counsel of the venerable father L. Arch-Bishop of Dublin you cause that Constitution to be read in our Court of Ireland and for the future to be firmly observed and that you fully dojustice to the Complainant according to the same In the Sense in which the Parliament
desire or expectation of a Ratification there And whether even their Parliaments are not threatned if they send false intelligence to England For full proof that in this Ordinance the Authority of the Parliament of England was reteâ—â—â—d and asserted I must observe to Mr. M. that this Noble Charter to Ireland is but according to the usual Methods of Publishing Acts of Parliament put under the great Seal and thereby made a Patent or Charter but 't was an Ordinancâ— or Act of Parliament for the State of Ireland as may be seen by the Statute Roll. 3. After this Statute mentioning Parliaments in Ireland the Parliament here exercised the same Authority in making Ordinances and Laws for Ireland and the King and his Council held Ireland to be bound by those Laws as part of the Realm of Eng land A Statute made in the 36 th of that King provides that no Lord of England nor any other Person of the Realm except the King and Queen take purveyance on pain of Life and Member and takes from Mayors and Constables of Staples all Jurisdiction in Criminal Causes but I do not find any mention of Ireland and yet that both King and Council judged that the publishing them in Ireland would avail as much as the publishing them in England appears by the Writ to the Sheriff of Essex and Hertfordshire requiring him to publish the Statutes and Ordinances then made by the King with the common assent of the Prelates great Men and Commonalty in his full Parliament at Westminster and to return the Writ with an Account of the Execution of it to the King in his Chancery This Writ is tested by the King And in the same manner commands are sunt to the Justice of Ireland But notwithstanding this Transmission to Ireland of Statutes made here one of which is about Purveyance which is at least the Second of this kind made to bind Ireland Mr. M. may if he pleases hold that this was not Law in Ireland till 18. H. 6. But after all I would intreat the favour of Mr. M. to inform me whether according to himself such Acts of Parliament in Ireland were needful to Confirm Laws made here when if he puts a right construction upon the Record above cited 9 E. 1. and of the Record 50 E. 3. of a Writ from hence for the Expences of the Men of Ireland who last came over to serve in Parliament in England The Men of Ireland us'd to send their Representatives hither to the making the Laws by which they were to be bound till this sending of Representatives out of Ireland to the Parliaments of England was found in process of time to be very troublesome and inconvenient But whatever Mr. M. may imagin in this matter that sort of representation of Ireland in the Parliaments of England was no more than they had in the time of H. 3. and have 't is likely generally had to this day of persons entrusted to sollicit the Affairs of Ireland upon their numerous Petitions to the King and his Council in Parliament for which Receivers and Triers used to be appointed or other matters of concern to them But whether they were chosen by their Parliaments when they had them or elsewhere their Expences as appears by the Record cited by Mr. M. were levied by Authority under the Great Seal of England But I will shew a Record of the time of H. 3. when I will agree that they had Nuntii Messengers deputed as 't is likely from a Parliament in Ireland H. 3. in his Writ or Letter to the Barons of Ireland takes notice that by the advice of his People he had given a favourable answer to some of their requests made known by persons deputed from them But because those persons alledged that their Instructions were to insist upon all the particulars of their Requests the King sends a Precept to the Justice of Ireland under the Great Seal of England requiring him as it seems to summon a Parliament for he was carefully to open the matters before the Barons of Ireland and to know what they would give for the Liberties they desired The Justice had no Authority to have those Liberties setled in a Parliament there but was to signify their Answer to the King upon which the King would do what should be fitting without taking any Right from them That this was to be done in Parliament here and that the Messengers from Ireland were no Members of that Council of the King's People which sent the Answer is beyond dispute nor is there colour to believe that any of their Deputies or Representatives had in any King's Reign more to do here than those of the time of H. 3. had But surely no Man but Mr. M. will conclude that such Instances or the mention of the Consent or Petition of the Irish in some Particulars manifestly shew that the King and Parliament of England would not enact Laws to bind Ireland without the concurrence of the Representatives of that Kingdom Since therefore I have proved to the contrary from H. 2's first acquisition till towards the latter end of E. 3. and Mr. M. declares that he will consider the more antient Precedents of English Statutes which particularly name Ireland and are therefore said to be of force in that Kingdom I might rest here did not Mr. M. take notice of the Statute of the Staple 2 H. 6. and the Resolution of the Judges upon it 1 H. 7. in such a manner as makes it requisite to be set in a truer Light The Merchants of Waterford pursuant to the Licence granted them by E. 3. and confirmed by E. 4. had carried Wool contrary to the ordinary provision of the Statute 2 H. 6. which being seized by the Treasurer of Calâ—is as forfeited part to the King and part to himself as discoverer The Merchants by Bill in the Exchequer here pray restitution 'T is to be observed that the Act upon which the Wool was seized tho it creates a forfeiture of the value of Wool Butter Cheese and other staple Commodities carried from England Ireland and Wales to other parts than Calais and gives the Informer a 4 th of what shall be carried contrary to that Act from any County of the Realm makes no mention of Ireland as to the Informers share and therefore his Interest could bear no debate unless Ireland had been included and the Counties of Ireland were Counties within the Realm of England But Mr. M. says the 2 d Question was Whether the King could grant his Licence contrary to the Statute and especially where the Statute gives half the Forfeiture to the Discoverer But he might have observed that the Statute has an express saving of the King's Prerogative which goes thrô the whole and certainly related to the King 's granting Licences to the contrary in some particular
Cases Notwithstanding which 't was the opinion of the Parliament the next year that this saving was not sufficient and therefore the King at the grievous complaint of the Commons impowers the Chancellor of England to give Licences for Butter and Cheese at his discretion As to the question Whether Ireland was bound by the Stat. 2 H. 6. Mr. M. pretends to transcribe verbatim what relates to it in the Year-Book 2 R. 3. The matter as he observes was brought before all the Judges of England in the Exchequer Chamber but after ibi he omits the word dicebatur it was said not per curiam but at the most only by some Judg or Judges and might have been only by one of the Counsel for the Merchants Whoever then held that Ireland was not bound by that Act might have spoken it in relation to the Informer who could claim no share of any Forfeiture incur'd from Ireland unles the Counties of Ireland were taken to be Counties within the Realm of England But even as to this matter they were soon convinced of their mistake in thinking Ireland was not bound by that Statute Mr. M. might have learn'd from the Year-Book 1 H. 7. that this was so far from the resolution of the Court 2 R. 3. that there was no Judgment but the Bill fell upon the demise of that King which till the Statute 1 E. 6. was a discontinuance of all real personal and mix'd Actions commenced in any of his Majesty's Courts and other Courts of Record And therefore 1 H. 7. the Suit was begun again as if commenced in that King's Reign and then the question coming before all the Judges in the Exchequer Chamber Hussey the Chief-Justice delivering the Judgment of the Court declared with the assent of the rest of the Judges that Ireland was bound by that Act and I leave to Mr. M. to make it out that this was directly contrary to the Judges opinion in the 2 d of R. 3. or that they were all positive that within the Land of Ireland the Authority of the Parliament of England will not affect them If there had been any such opinion 't was not delivered as the Judgment of the Court and however the Resolution 1 H. 7. has setled the Point another way This Case is abridg'd and the Resolution receiv'd for Law by Brook a Learned Judg in the Reign of H. 8. without any query which is usual where he doubted his tamen nota that Ireland is a Kingdom by it self and has Parliaments of its own implies no more than that this tho objected 2 R. 3. was of no weight to alter that judgment and is as much as to say a Kingdom may be distinct from the Crown of a Kingdom to which it is annexed and have Parliaments at home and yet be govern'd by the Statute Laws of that other Kingdom as subordinate to it And tho the naming that subordinate Kingdom in an Act of Parliament here or the otherwise manifesting an intention to bind it is no step towards obtaining a Parliamentary consent in Ireland yet 't is towards the submission and acquiescence of the People to those Laws by which they and their Forefathers had consented to be governed I may now leave it to Mr. M. to answer his own Questions Shall Ireland receive Charters of Liberties and be no partakers of the freedoms therein contained or do these words signify in England one thing and in Ireland no such thing Nor need I much fear his terrible Expostulation Whether it be not against natural Equity and Reason that a Kingdom regulated within it self and having its own Parliaments should be bound without their consent by the Parliament of another Kingdom But I should hope that he will admit it to be against natural Reason to go away with a Conclusion without some colour of proving the Premises and therefore before he had laid it home to English hearts to consider Whether Proceedings only of thirty seven years standing shall be urged against a Nation to deprive them of the Rights and Liberties which they enjoyed for five hundred years before He would have done well to have proved that any one Century or much less number of years for these five hundred years more Ireland was ever according to the terms of his own Question regulated within it self or that 't is a Kingdom of more than one hundred and sixty years standing But it seems just thirty seven years since and never before the Rights and Liberties which they had quietly enjoyed till then were invaded and from that day to this have been constantly complained of 'T is not to be expected that a man who remembers so little of those many Acts of Parliament made in Ireland which might have moderated his assurance in this matter should keep in memory even his own concessions to the contrary as where he grants that the Parliaments of England did at least claim a superiority before the 10 th of H. 4. and 29 H. 6. But then he says We have not one single Instance of an English Act of Parliament expresly claiming this right of binding us but we have several Instances of Irish Acts of Parliament expresly denying this Subordination Answ 1. As to the express claiming an Authority to do what is done by virtue of an Authority always suppos'd that 's so far from an Argument against it that it shews 't was never call'd in question 2. No Act of Parliament even in Ireland can be shewn or pretended denying the Subordination not but that there might be some question of the general binding for want of due publication either under the Great Seal of England or of otherwise knowing the Intention of the Parliament of England This not the Authority was the Ambiguity mentioned in the Statute of Ireland 8 E. 4. in relation to a Statute 6 R. 2. which without naming Ireland alters a Law that did name it 3. If there were such Act of Parliament in Ireland 13 E. 2. as 't is supposed that a certain Judg in Ireland had seen and that we might rely upon his Judgment in the sense of it receiving some Laws before that time made in England and suspending the execution of others what I have shewn above from undoubted Records may be enough to shew that this would not in the least weaken the Right of the Parliament of England exercised before and after that time And if there were another Statute 10 H. 4. that no Laws should be of force unless they were allow'd and published by a Parliament in Ireland This tho 't is a strain farther than 't is likely any Parliament of Ireland ever yet went would not necessarily infer any more than that the Laws made in England should be thus published to the end they might be more generally known not but that the intention of the Parliament of England made known under the great Seal
of England was as much to be obeyed as their own Record shews that 't was 29. E. 1. The Authorities above cited having manifested the several Titles which the Crown and Kingdom of England have to the Land of Ireland and that from the 18 th of H. 2. at the latest downwards as far as Mr. M. makes any controversie neither the Irish Nation nor the English there have been govern'd without the interposition of the Parliament of England and that the Parliament of Ireland had all its Laws made here or derived under Authority from hence and that not from the King 's alone or the Kings and their Priâ—y Counsels but their Parliament that the Parliaments of Ireland have had no Provision for their being holden within any certain time nor ever had Authority given them to act as independent on the Parliament of England I may well conclude that the right of the Parliament of England to bind Ireland by Laws made here without any Members chosen for Ireland is so far from being departed from that 't is strengthened and confirmed by the continual usage of the Parliaments of England and submission of the Parliaments and People of Ireland to which 't will be needless to add the consideration of the inestimable Treasure spent in several Ages for maintaining the English Interest there and the late freeing it from an Universal Insurrection and Usurpation 4. Having us'd the proper means to convince Mr. M. by the true argumentum ad hominem shewing that the chief Weapons which he uses turn strongly against himself I need the less apprehend the natural force of his reasoning upon dry Notions The right says he which England may pretend to for binding us by their Acts of Parliament can be founded only on the imaginary Title of Conquest or Purchase or on Precedents and Matters of Record Wherein he admits that Precedents and Matters of Record may give a Right which is neither by Conquest nor Purchase and of this the Authors he refers to might satisfie him at large I 'll agree with him that on consent depends the obligation of all humane Laws insomuch that without it by the unanimous Opinions of all Jurists no sanctions are of any force But do any of them say that the consent is necessary to be exprest and that immediate if it were the Sons could not be bound by those Laws which their Fathers chose in restriction of natural liberty and he might have observ'd by his own Authors and even in the Words cited by himself that approbation not only Men give who personally declare their assent by Voice Sign or act but also when others do it in their names by right originally at least derived from them as in Parliaments Councils c. To be commanded we do consent when that Society whereof we are part hath at any time before consented Farther yet whatever Freedoms the Progeny of the English and Britains now in Ireland claim with the natural Born Subjects of England as being descended from them 't is certain every Man here does not as an English-man claim to be a Member of Parliament or to have a Voice in chusing one But there are many without this Privilege who have been concluded by the consent of their Forefathers and their own agreeing to stay within a Kingdom govern'd by such Laws to which they owe Obedience and Submission at least as long as they will receive the benefit of them and the protection which they assure This is the case of those Englishmen who chuse to live in Ireland under the Protection of England without which the Protestants there could not have subsisted in any Age since the Reformation and if the Irish Natives are not conquer'd or the Right of Conquest over them ought not to be carryed beyond the reparation of the Damages sustained from them or if a just conquest gets no power but only over those who have actually assisted in that unjust force and if the right of conquest extends little fâ—rther than over the Lives of the Conquer'd but their posterity can lose no benefit thereby If an outragious and Brutal Enemy may not be restrain'd from doing farther mischief by the taking from him that Power and Estate which would enable him to carry on his Designs if the posterity may not suffer in the consequence of this as the aggressor's property is become the Conqueror's if the Children may not be restrain'd from revenging their Father's Quarrel let the English in Ireland look to it how to juâ—â—ifie those Possessions which they enjoy by the help of the Crown and Kingdom of England and if their Consciences are squeamish let them renounce their Right to the Lands of the Natives but let them not bring in to question the Right of Engl. to all Foreign Plantations and let them never fear that equal Power here to which a great part of the English Nation are resigned without any other kind of consent than the People of Ireland have given to the Laws made in England with intention to bind them and be published there As to his notion of Purchase whenever Ireland will repay the value of the Purchase that inestimable and infinite expence of Men Money Victuals and Arms which their own Parliaments own to have protected and supported them for several Ages there 's no great question but England would be willing to leave 'em to their own ways Whereas he will suppose that the Authority which the Lords and Commons of England have exercised from Age to Age in relation to Ireland would imply that the Parliament of England have claim'd a coordinate Power with the King what is this but to argue that in relation to England the Parliament is coordinate however as by Parliament he means only the States of the Kingdom 't is evident this insinuation proceeds from his not observing the Gothick constitution for which he would be thought very zealous but might have known that the States of the Kingdom or the ordines regni are those who are entituled to meet the King in Person or by representation in his Parliaments where the King is a distinct Body Politick by himself and having the Supremacy is manifestly above the ordines regni But tho' the Head which Mr. M. raises about the suppos'd injury to Prerogative be only upon a pretended coordinate Power with the King he carries it farther and will have it that for the States of this Realm to use an Authority tho' subordinate to the King to introduce new Laws or repeal old establish'd in Ireland is a violation of the Constâ—tution of Ireland under Boyning's Act and of the Prerogative of the Crown of England which he supposes to have been highly advanced by that Statute speaking of the effect of which he says The King's Prerogative is advanced to a much higher pitch than ever was challeng'd by the King 's in England and the Parliament of Ireland stands almost