yet where it was good at Law and no Cheat or Imposition upon the Party but he meant as he had undertaken to pay this Money and was not deceived in his Expectation as to the Success of the Respondent's Endeavours 't would be hard in Equity to damn such a Security and therefore 't was prayed that the Decree should be affirmed It was replied That Marriages ought to be procured and promoted by the Mediation of Friends and Relations and not of Hirelings that the not vacating such Bonds when questioned in a Court of Equity would be of Evil Example to Executors Trustees Guardians Servants and other People having the Care of Children And therefore 't was prayed that the Decree might be reversed and it was reversed accordingly The Society of the Governour and Assistants London of the new Plantation of Ulster in the Kingdom of Ireland Versus William Lord Bishop of Derry APpeal from a Judgment by the Lords Spiritual and Temporal of Ireland in Parliament assembled upon the Bishop's Petition and Appeal to their Lordships form an Order in the Chancery touching certain Lands in the County and Liberties of London-Derry It sets forth amongst other things after a recital of the Proceedings in Chancery and the Merits of the Cause that the Appellants were advised that no Appeal lyes to the House of Lords in Ireland from the Court of Chancery there but that all Appeals from thence ought to be immediatly to their Lordships here the Supreme Judicature as well for Matters arising in Ireland as in this Kingdom and therefore in the Conclusion prays that an Order might be made for the said Bishop to appear and put in his Answer thereto that the Matter might be heard before their Lordships here when it should be thought fit and that the Petitioners might receive such relief as should be agreeable to their Lordships great Wisdom and Justice c. Upon presenting this Appeal to the Lords here the House appointed Lords Committees to consider the proper method of Appealing from the Decrees made in the Court of Chancery in Ireland and to report c. Then pursuant to an Order made by the Lords Committees and a Letter sent to the Lords Justices of Ireland by Order of the House of Lords here Some Precedents or Cases from Ireland relating to the method of appealing from the Chancery there were brought before the said Committee and reported to the House whereupon the House ordered that both Parties might have Copies of the same Then the Society took Copies and preferred a short Petition to the House setting forth the said matter and that they were ready by their Councel to offer several things in order to their Lordship's receiving and proceeding upon their said Appeal whereupon a day was appointed for the hearing of Councel on both sides with regard to Jurisdiction And It was accordingly argued on behalf of the said Society that the Judgments in Ireland whether in Law or Equity were not to be finally Determined there that Ireland was dependant upon England 't was urged to prove it that our Money was to be Current there that our Laws did oblige them that they were governed secundum leges consuetudines anglicanas Davis 21. in which Book 24. that the Easterlings in England who first made the Money of this Standard and from whose Name comes that of Sterling were the first Founders of the four Principal Cities of Ireland Dublin Waterford Corke and Limrick and the other Maritime Villes in that Country and were the sole Maintainers of Traffick and Commerce there which were all utterly neglected by the Irish These Cities and Villes were under the Protection of King Edgar and Edward the Confessor before the Norman Conquest and these Easterlings in Ancient Record are called Ostmanni and therefore when Hen. 2. Upon the first Conquest after their Apostacy thought fit to People those Cities and Villes with English Colonies drawn from Exeter Bristol and Chester c. he assigned to them a certain proportion of Land next adjoyning to each of those Cities which Portion is called in the Records in Ancient time Cantreda Ostmannorum Davis 25. says further that Ireland is a Member of England Inhabitantes ibidem legibus Angliae subjiciuntur utuntur In the Statute of Faculties 28 Hen. 8. cap. 19. 't is mentioned to be the King's Land of Ireland and that this the King's Land of Ireland is a Member Appendant and rightfully belonging to the Imperial Crown of the Realm of England and united to the same And in the 33 Hen. 8. cap. 1. by which the Stile and Title of King of Ireland was given to Hen. 8. his Heirs and Successors 't is further Enacted that the King shall enjoy this Stile and Title and all other Royal preeminences Prerogatives and Dignities as united and annexed to the Imperial Crown of England Nay It may be compared to a County-Palatine Created by the King of England for Davis 62. speaking of that he says that a County-Palatine hath in it jura regalia which consists in Royal Jurisdiction and Royal Seignory By the first it hath all its High Courts and Officers of Justice which the King hath and by the latter it hath Royal Services and Royal Escheates as the King hath and therefore in some respects 't is separated and disjoyned from the Crown as is Plowd 215. yet 't is subordinate and dependant though it be said that breve Dom ' Regis non Currit there yet the Writ of Error which is the dernier resort and in like manner an Appeal is excepted out of their Charters so is Dyer 321. and 345.34 Hen. 6.42 and it would be excepted if it were not so expressed for to have the ultimate Judgment is that which the King cannot grant for such grant would if allowed alter the fundamental constitution of the Realm So in Ireland which is a Realm of it self as Consisting of many Counties Erroneous Judgments given in the chief place there shall be reversed in the King's Bench in England Davis quotes Bracton lib. 3. tit ' coron ' cap. 8. that Comites Palatini habent regalem jurisdictionem in omnibus Salvo Dominio Regi sicut principi so that by his Opinion they are much the same and no Man will deny but that in all Proceedings in Law or Equity the last resort is to the Parliament of England there it is that the King 's supreme Authority is exercis'd It must not be said to be a Conquered Country for the Earl of Stassord's sake though Coke and Vaughan have affirmed it so But it may be called a Plantation or Colony dependant upon England and to many purposes parcel of it This hath not only the same person for their King but 't is under the Crown and Government of England there must be in all these Cases a Superiority or superintendency over inferiour Dominions for otherwise as Vaughan puts it 401. the Law appointed or permitted to such places might be insensibly changed within it self
without the assent of the Dominion Superiour And 2. Judgments or Decrees might be there made or given to the disadvantage or of lessening that Superiority which cannot be reasonable or to make the Superiority to be only in the King not in the Crown of England as King Jac. 1. would have had it and consulted Selden upon the point Now though the Writ of Error be only mentioned yet the same reason holds to both and the true cause why we have not so many Ancient precedents of Equity Cases as of Law ones is for that in Ancient time the Equity Courts were not so high meddled with few matters and in a Summary way but since their Authority is so advanced and their Jurisdiction so enlarged that most questions of property are become determinable there and almost every suit begins or ends with them to the entire subversion of the Old Common-Law It is and must now be reasonable to have the Examination of their final Sentences in the Parliament of England as well as of the other Suppose non-residence in Ireland should be pretended a Forfeiture of the Estate to the next remainder Man or to the King Can it be safe for to intrust them with a conclusive Opinion in this matter When Calais was in our hands Writs of Error lay thither 21 Hen. 7. fol. 3. As to the pretence that the orders of this House cannot be executed there 't is very vain for if the King's Bench Command their Judgments to be executed there this House may order theirs and in like manner as they do to the Chancery here In 15 Rich. 2. numb 17. in the Abbot of St. Osithe's Case the Lords here made an Order and charged the Lord Chancellor that he see it performed and this hath been constant practice It hath been imagined That the Jurisdiction of this House in matters of this kind is dated from the 21 Jac. 1. as to the proceedings in Chancery but that is not now to be disputed for the Commons in Parliament Assembled did agree it to be the Right of this House in the Case of Skinner and the East-India Company and in the Book about it supposed to be written by that Noble Lord the Lord Hollis 105. 't is said that where the King 's Sovereigntydoth not reach the Jurisdiction of this House cannot the contrary is implied that where the King of England's Sovereignty doth extend the Jurisdiction of this House doth so too and no Man will affirm That Ireland is out of or beyond the limits of the Sovereignty of the English Crown And as to the exercise of this Judicature by the Lords here nothing can be stronger for it then the 1 Hen. 4. numb 79. So 't is in the Record though in Cotton's Abridg 't is 80. the Commons declare that all Judgments Appertain to the King and Lords and not to them Skinner's Case 199 200. 4 Inst 349 353 354. It was further argued That Protection commands a due Subjection and that these people who insisted upon this independency had forgot the English Treasure and Bloud which had been spent for their preservation That they are part of England and subject to its Laws appears from the common Case of an incumbency here being made void by acceptance of a Bishoprick in that Colony Besides that in Ancient time the Arch-Bishop of Canterbury was Primate of Ireland and had the Confirmation and Consecration of Bishops there Cambden's Britt pag. 735. and 765. 4 Inst 360. then 't was urged that the Question now was whether it were a Dominion inferiour or equal to and independant upon the Realm of England That the constant practice had been for the Lords here to examine the Decrees in their Court of Chancery that the refusing of this Appeal would shake all those Cases thus determined that every Appeal-here from their Equity Sentences which have been very many was an Argument against the Order of their Lords and for the receiving of this Appeal here That this thing hath been acknowledged even by the Rebels there for in Sir John Temple's History of the first Progress of the Irish Rebellion written 1641. pag. 141. amongst the several propositions made by the Irish then in a general Rebellion these two are mentioned 1. That by several Acts of Parliament to be respectively passed in England and Ireland it should be declared that the Parliament of Ireland had no subordination to the Parliament of England but should have supreme Jurisdiction in that Kingdom as Absolute as the Parliament of England here hath 2. That the Act of 10 Hen. 7. called Poyning's Act and all other Acts expounding or explaining that Law should be Repealed both which with their other dangerous propositions were justly rejected however it shews their Opinion that at that time the Law was or was taken and deemed to be against them in this point and there is as much reason for keeping the final Judicature here as there is for maintaining the Superiority and Obligatory Power over them in the legislature 'T was farther urged That the with holding the Irish Lords from having the like Jurisdiction in their Parliament as the Lords in England have in Judging upon Appeals and Writs of Error was absolutely necessary for the preserving of the Possessions of the English in Ireland for those of that Country must be suppos'd to incline to their own interest and cannot be suppos'd so much inclined to love and affect the English amongst them And that this Power of Judging here is Co-eval with the very Constitution of the Government 'T was further urged That their Precedents returned did or concern the point in Question except the two or three Cases in 1661 and 1662. and two Appeals lately in 1695. that their Case of the Prior of Lauthony in 8 Hen. 6. Prynnes Animadversions 313 314 was against them the Prior having removed a Judgment in the King 's Bench in Ireland into the Parliament there which affirmed it did bring a Writ of Error in the King 's Bench in England and they refused to meddle with it the reason was because the Writ of Error before the Lords there did not lie and that it ought to have come hither immediately and all the rest of their Quotations in their Printed Case either prove nothing at all or too much for they are against the allowance of Writs of Error in the King 's Bench in England and against the Legislature of England's being able to oblige the people of Ireland both which have been approved by constant practice and therefore it was prayed that the Appeal here might be allowed and the Order of the Irish Lords might be vacated On the other side it was argued from 1 Inst 141. Prynne's Animadversions 286. and 4 Inst 12. that their Parliaments had the same Authority there in respect of making Laws for that Country as the Parliaments have for England that they have ever since 10 Hen. 7. Re-enacted there such subsequent Acts of England as they thought
a Colony or Plantation and that imports rather the contrary and by such Names these Plantations have always gone in Letters Patents Proclamations and Acts of Parliament But whatsoever may by some be said as to Statutes in particular binding there the Common Law must and doth oblige there for 't is a Plantation or new Settlement of English-men by the King's Consent in an uninhabited Country and so is the History of Barbadoes written by Richard Ligon Printed at London 1673. pag. 23. says he 'T was a Country not inhabited by any but overgrown with Woods And pag. 100. They are governed by the Laws of England And Heylin in his Geography lib. 4.148 says The English are the sole Colony there they are called the King's Plantations and not his Conquests and he neither could nor can now impose any Laws upon them different from the Laws of England 'T was argued that even our Statutes do bind them and many of them name these Plantations as English they have some Municipal Rules there like our By-laws in the Stanneries or Fenns but that argues nothing as to the general which shall prevail when the one contradicts the other may be a Query another time By the 22 23 Car. 2. cap. 26. against the planting of Tobacco here and for the Regulation of the Plantation Trade the Governours of those Plantations are once a Year to return to the Custom-house in London an Account of all Ships laden and of all the Bonds c. And they are throughout the whole Act called the King's English Plantations Governours of such English Plantations to some of the English Plantations And Paragr 10. 't is said Inasmuch as the Plantations are inhabited which his Subjects of England and so 't is in 15 Car. 2. cap. 7. sect 5. and in 12 Car. 2. cap. 34. they are called Colonies and Plantations of this Kingdom of England From all which 't is natural to infer That the Rules in case of conquered Places cannot prevail here Conquest est res odiosa and never to be presumed besides 't is the People not the Soil that can be said to be conquered The reason of a Conquerour's Power to prescribe Laws is the Conqueror's Clemency in saving the Lives of the conquered whom by the strict right of War he might have destroyed or the presumed Chance of Subjection which the conquered Prince and People threw themselves upon when they first engaged in the War But this is not pretended to here tho' all the Cases about this Subject were put below stairs Then taking it as the truth is certain Subjects of England by consent of their Prince go and possess an uninhabited desert Country the Common Law must be supposed their Rule as 't was their Birthright and as 't is the best and so to be presumed their Choice and not only that but even as obligatory 't is so When they went thither they no more abandoned the English Laws then they did their Natural Allegiance nay they subjected themselves no more to other Laws than they did to another Allegiance which they did not This is a Dominion belonging not only to the Crown but to the Realm of England tho' not within the Territorial Realm Vaughan 330. says That they follow England and are a part of it Then 't was argued further If 't were possible that it should be otherwise when did the Common Law cease On the Sea it remained in all Personal Respects If Batteries or Wounds on Ship-board Actions lay here Then the same held when they landed there and no new Laws could be made for them but by the Prince with their consent Besides Either the Right of these Lands was gained to the Crown or to the Planters by the Occupancy and either way the Common Law must be their Rule It must be agreed that the first Entry gained the right and so is Grotius de jure Belli Pacis lib. 2. cap. 8. sect 6. and these Lands were never the Kings tho' they afterwards submitted to take a Grant of the King 'T is true in case of War what is gained becomes his who maintained the War and doth not of right belong to that Person who first possessed it Grot. lib. 3. cap. 6. sect 11. But in case it be not the effect of War but only by force of their first Entry it must be considered what Interest they did acquire and certainly 't was the largest that can be for an Occupant doth gain an Inheritance by the Law of Nations and the same shall descend then by the Rules of what Law shall the Descent be governed it must be by the Laws of the Country to which they did originally and still do belong But then supposing the Lands gained to the Crown and the Crown to distribute these Lands the Grant of them is to hold in Soccage and that is a common Law Tenure why are not their Persons in like manner under the Common Law When a Governour was first received by or imposed upon them 't was never intended either by King or People that he should Rule by any other Law than that of England And if it had been known to be otherwise the number of Subjects there would have been very small In these Cases their Allegiance continues and must be according to the Laws of England and 't was argued that ex consequenti the protection and rule of them ought to be by the same Laws for they are mutual and reciprocal unum trahit alterum and that Law which is the Rule of the one should be the Rule of the other besides 't is the Inhabitants not the Country that are capable of Laws and those are English and so declared and allowed to be and consequently there 's no reason why the English Laws should not follow the Persons of English-men especially while they are under the English Government and since the Great Seal goes thither And further a Writ of Error lies here upon any of their ultimate Judgments so says Vaughan 402. and 21 Hen. 7.3 that it doth so to all Subordinate Dominions and tho' the distance of the Place prevents the common use of such Writ yet by his Opinion it clearly lies and he reckons the Plantations part of those Subordinate Dominions Now a Writ of Error is a remedial Writ whereon Right is to be done and that must be according to the Laws of England for the King's Bench in case of a Reversal upon such Writ is to give a new Judgment as by Law ought to have been first given Vaughan 290 291 says It lies at Common Law to reverse Judgments in any inferiour Dominions for if it did not inferiour and Provincial Governments might make what Laws they please for Judgments are Laws when they are not to be reversed It lay to Ireland by the Common Law says Coke 7 Rep. 18. tho' there had been no Reservation of it in King John's Charter Then 't was inferred that the lying of a Writ of Error proves the Laws