by Advice of all his Faithful Counsellors in England to gratify the Irish says Pryn for their eminent Loyalty to his Father and Him he granted them out of his Special Grace that they and their Heirs for ever should enjoy the Liberties granted by his Father and Himself to the Realm of England which he Reduced into Writing and sent Seal'd thither under the Seal of the Popes Legat and W. Earl Marshal his Governour because he had then no Seal of his own This as I conceive Refers to the foremention'd Magna Charta Hiberniae The Record as Recited by Mr. Pryn here follows Rex Archiepiscopis Episcopis Abbatibus Comitibus Baronibus Militibus Libere Tenentibus omnibus Fidelibus suis per Hiberniam Constitutis Salutem Fidelitatem vestram in Domino Commendantes quam Domino Patri nostro semper Exhibuistis nobis estis diebus nostris Exhibituri Volumus quod in signum Fidelitatis vestrae tam praeclarae tam Insignis Libertatibus Regno nostro Angliae a Patre nostro nobis Concessis de gratia nostra Dono in Regno nostro Hiberniae guadeatis vos vestri Haeredes in perpetuum Quas Distincte in Scriptum Reductas de Communi Consilio omnium Fidelium nostrorum vobis Mittimus Signatas Sigillis Domini nostri G. Apostolicae Sedis Legati Fidelis nostri Com. W. Maresc Rectoris nostri Regni nostri quia Sigillum nondum habuimus easdem processu temporis de Majori Consilio proprio Sigillo Signaturi Teste apud Glouc. 6 Februar Here we have a free Grant of all the Liberties of England to the People of Ireland But we know the Liberties of Englishmen are Founded on that Universal Law of Nature that ought to prevail throughout the whole World of being Govern'd only by such Laws to which they give their own Consent by their Representatives in Parliament And here before I proceed farther I shall take Notice That in the late Raised Controversie Whether the House of Commons were an Essential part of Parliament before the 49th year of Henry the Third The Learned Mr. Petyt Keeper of the Records in the Tower in his Book on that Subject pag. 71. Deduces his 9th Argument From the Comparison of the Antient Generale Concilium or Parliament of Ireland instanced An. 38 Hen. III. with the Parliament in England wherein the Citizens and Burgesses were which was Eleven years before the pretended beginning of the Commons in England For thus we find it in that Author As great a Right and Privilege surely was and ought to be allow'd to the English Subjects as to the Irish before the 49th of Hen. III. And if that be admitted and that their the Irish Commune Concilium or Parliament had its Platform from ours the English as I think will not be Deny'd by any that have consider'd the History and Records touching that Land Ireland we shall find the ensuing Records Ann. 38 Hen. III. clearly evince that the Citizens and Burgesses were then a part of their the Irish Great Council or Parliament That King being in partibus Transmarinis and the Queen being left Regent she sends Writs or a Letter in the Kings Name directed Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus Militibus Liberis Hominibus Civibus Burgensibus Terrae suae Hiberniae telling them that Mittimus Fratrem Nicholaum de Sancto Neoto Fratrem Hospitii Sancti Iohannis Ierusalem in Anglia ad partes Hiberniae ad exponendum vobis together with I. Fitz-Geoffery the Kings Justice the State of his Land of Vascony endanger'd by the Hostile Invasion of the King of Castile qui nullo Iure sed potentia sua Confisus Terram nostram Vasconiae per ipsius Fortitudinem a manibus nostris Auferre a Dominio Regni Angliae segregare Proponit And therefore universitatem Vestram Quanta possumus Affectione Rogantes quatenus noâ—… jura nostra totaliter indefensâ—… non deserentes nobis in tanto periculo quantumcunque poteritis dâ—… Gente Pecunia subveniatis which would turn to their Everlasting Honour concluding His nostris Augustiis taliter Compâ—…tientes quod nos Heraedes nostri vobis Haeredibus vestris sumus non immerito Obligati Teste Regina R. Comite Cornubiae apud Windesor 17 die Februar Per Reginam Thus far Mr. Petyt Here we have a Letter from the Queen Regent to the Parliament in Ireland in an humble manner beseeching them for an Aid of Men and Money against the King of Castiles Hostile Invasion of Gascony from whence we may perceive that in those days no more than at present Men and Money could not be Rais'd but by Consent of Parliament I have been the more particular in Transcribing this Passage out of Mr. Petyt to shew that we have as Antient and Express an Authority for our present Constitution of Parliaments in Ireland as can be shewn in England And I believe it will not be thought Adviseable in these latter Days to break in upon Old Settled Constitutions No one knows how fatal the Consequents of that may be To return therefore where we Digress'd Henry the Third about the Twelfth year of his Reign did specially Impower Richard de Burgh then Iustice of Ireland at a certain day and place to summon all the Archbishops Bishops Abbots Priors Earls Barons Knights Freeholders and Sheriffs of each County and before them to cause to be Read the Charter of his Father King Iohn whereunto his Seal was Appendant whereby he had granted unto them the Laws and Customs of England and unto which they swore Obedience And that he should cause the same Laws to be observed and Proclaimed in the several Counties of Ireland that so none presume to do contrary to the Kings Command The Record I have taken out of Mr. a Pryn in these words Rex Dilecto Fideli suo Richardo de Burgo Justie ' suo Hibern Salutem Mandamus vobis firmiter praecipientes quatenus certo die Loco faciatis venire coram vobis Archiepiscopos Episcopos Abbates Priores Comites Barones Milites libere Tenentes Ballivos singulorum Comitatum coram eis Publice legi faciatis Chartam Domini J. Regis Patris nostri cui Sigillum suum appensum est quam fieri fecit jurari a Magnatibus Hibern de Legibus Consuetudinis Angliae Observandis in Hibernia Et praecipiatis eis ex parte nostra quod Leges illas Consuctudines in Charta praedicta contentas de caetero firmiter teneant observent hoc idem per singulos Commitatus Hiberniae clamari faciatis teneri prohibentes firmiter ex parte nostra super foris facturam nostram nequis contra hoc Mandatum nostrum venire praesumat c. Teste Me ipso Apud Westm ' 8 die Maii An. Reg. nostri 12. By what foregoes I presume it plainly appears that by three several Establishments
receperunt simili modo Henricum Regem Angliae in Dominum Regem Hiberniae sui devenerunt ei Heredibus suis Fidelitatem contra omnes Iuraverunt Matthew Paris likewise in his History speaking of King Hen. II. being in Ireland saith Archiepiscopi Episcopi ipsum in Regem Dominum receperunt ei Fidelitatem Homagium Iuraverunt Iohn Brampton Abbot of Iornaâ—… in his Historia Iornalensi pag. 1070. speaking of Hen. II. hath these words Recepit ab unoquoque Archiepiscopo Episcopo Hiberniae Literas cum Sigillis suis in modum Chartae pendentibus Regnum Hiberniae sibi Haeredibus suis Confirmantes Testimonium perhibentes ipsos in Hibernia eum Heredes suos sibi in Reges Dominos in perpetuum Constituisse All the Archbishops Bishops and Abbots of Ireland came to the King of England and Received him for King and Lord of Ireland swearing Fealty to him and his Heirs for ever The Kings also and Princes of Ireland did in like manner Receive Henry King of England for Lord of Ireland and became his Men and did him Homage and swore Fealty to him and his Heirs against all Men. And he received Letters from them with their Seals pendent in manner of Charters confirming the Kingdom of Ireland to him and his Heirs and Testifying that they in Ireland had Ordain'd him and his Heirs to be their King and Lord of Ireland for ever After which he return'd into England in April following vizt April 1173. I come now to Enquire into our Second Particular proposed Viz. Whether Ireland might be properly said to be Conquer'd by King Henry the Second or by any other Prince in any succeeding Rebellion And here we are to understand by Conquest an Acquisition of a Kingdom by Force of Arms to which Force likewise has been Opposed if we are to understand Conquest in any other sense I see not of what Use it can be made against Irelands being a Free Country I know Conquestus signifies a Peaceable Acquisition as well as an Hostile Subjugating of an Enemy Vid. Spelman's Glos. And in this sense William the First is call'd the Conquerour and many of our Kings have used the Epocha post Conquestum And so likewise Henry the Second stiled himself Conquestor Dominus Hiberniae but that His Conquest was no violent Subjugation of this Kingdom is manifest from what foregoes For here we have an Intire and Voluntary Submission of all the Ecclesiastical and Civil States of Ireland to King Henry II. without the least Hostile Stroke on any side We hear not in any of the Chronicles of any Violence on either Part all was Transacted with the greatest Quiet Tranquility and Freedom imaginable I doubt not but the Barbarous People of the Island at that time were struck with Fear and Terror of King Hen. Il's Powerful Force which he brought with him but still their Easie and Voluntary Submissions Exempts them from the Consequents of an Hostile Conquest whatever they are where there is no Opposition such a Conquest can take no place I have before taken Notice of Henry the Il's using the Stile of Conquestor Hiberniae I presume no Argument can be drawn from hence for Ireland's being a Conquer'd Country for we find that many of the Kings of England have used the Aera of post Conquestum Edward the Third was the first that used it in England and we frequently meet with Henricus post Conquestum Quartus c. as taking the Norman Invasion of William the First for a Conquest But I believe the People of England would take it very ill to be thought a Conquer'd Nation in the sense that some impose it on Ireland And yet we find the same Reason in one Case as in t'other if the Argument from the King's Stile of Conquestor prevail Nay England may be said much more properly to be Conquer'd by William the First than Ireland by Henry the Second For we all know with what Violence and Opposition from Harrold K. William obtain'd the Kingdom after a Bloody Battel nigh Hastings Whereas Henry the Second receiv'd not the least Opposition in Ireland all came in Peaceably and had large Concessions made them of the like Laws and Liberties with the People of England which they gladly Accepted as we shall see hereafter But I am fully satisfy'd that neither King William the First in his Acquisition of England or Henry II. in his Acquest of Ireland obtain'd the least Title to what some would give to Conquerours Tho' for my own part were they Conquerours in a sense never so strict I should enlarge their Prerogative very little or nothing thereby as shall appear more fully in the Sequel of this Discourse Another Argument for Henry the Second's Hostile Conquest of Ireland is taken from the Opposition which the Natives of Ireland gave to the first Adventurers Fitz-Stephens Fitzgerald and Earl Strongbow and the Battles they sought in assisting Mac-Morogb Prince of Leinster in the Recovery of his Principality 'T is certain there were some Conflicts between them and the Irish in which the Latter were constantly beaten but certainly the Conquests obtain'd by those Adventurers who came over only by the King's License and Permission and not at all by his particular Command as is manifest from the words of the Letters Patents of License recited by Giraldus Cambrensis Hib. Expug pag. 760. Edit Francof 1603. Angl. Norm Hiber Camd. can never be call'd the Conquest of Henry the Second especially considering that Henry the Second himself does not appear to have any Design of Coming into Ireland or Obtaining the Dominion thereof when he gave to his Subjects of England this License of Assisting Mac-Morrogh But I conceive rather the contrary appears by the Stipulations between Mac-Morrogh and the Adventurers and especially between him and Strongbow who was to succeed him in his Principality From what foregoes I presume it Appears that Ireland cannot properly be said so to be Conquer'd by Henry the Second as to give the Parliament of England any Jurisdiction over us it will much more easily Appear that the English Victories in any succeeding Rebellions in that Kingdom give no Pretence to a Conquest If every Suppression of a Rebellion may be call'd a Conquest I know not what Country will be excepted The Rebellions in England have been frequent in the Contests between the Houses of York and Lancaster one side or other must needs be Rebellious I am sure the Commotions in King Charles the First 's time are stiled so by most Historians This Pretence therefore of Conquest from Rebellions has so little Colour in it that I shall not insist longer on it I know Conquest is an hateful word to English Ears and we have lately seen a Book undergo a seuere Censure for offering to broach the Doctrine of Conquest in the Free Kingdom of England But to take off all Pretence from this Title by Conquest
Parliament held at Oxford Soon after King Iohn being then about Twelve Years of Age came into Ireland from Milford to Waterford as his Father had formerly done The Irish Nobility and Gentry immediately repaired to him but being Received by him and his Retinue with some Scorn and Derision by reason of their long rude Beards quas more Patrio grandes habebant prolixas says Giraldus Cambrensis Hib. Expug Cap. 35. they took such Offence thereat that they departed in much Discontent which was the occasion of the young Kings staying so short a time in Ireland as he did this his first time of being here And here before we proceed any farther we shall observe That by this Donation of the Kingdom of Ireland to King Iohn 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 Iohn after the Death of his Brother Richard the First King of England which was about Twenty two years after his being made King of Ireland during which space of Twenty two years both whilst his Father Henry the Second and his Brother Richard the First were living and Reigning King Iohn made divers Grants and Charters to his Subjects of Ireland which are yet in being in this Kingdom wherein he stiles himself Dominus Hiberniae the constant Stile till Henry the Eighth's time and in others Dominus Hiberniae Comes Meritoniae By which Charters both the City of Dublin and divers other Corporations enjoy many Priviledges and Franchises to this day But after the said Grant of the Kingdom of Ireland to King Iohn neither his Father Henry II. nor his Brother King Richard I. Kings of England ever stiled themselves during their Lives King or Lord of Ireland for the Dominion and Regality of Ireland was wholly and separately vested in K. Iohn being absolutely Granted unto him without any Reservation And he being Created King in the Parliament at Oxford under the Stile and Title of Lord of Ireland Enjoy'd all manner of Kingly Iurisdiction Preheminence and Authority Royal belonging unto the Imperial State and Majesty of a King as are the Express words of the Irish Statute 33 Hen. VIII c. 1. by which Statute the Stile of Dominus was changed to that of Rex Hiberniae Let us then suppose that Richard the First King Iohn's Elder Brother had not died without Issue but that his Progeny had sat on the Throne of England in a Continued Succession to this Day Let us suppose likewise the same of King Iohn's Progeny in relation to the Throne of Ireland where then had been the Subordination of Ireland to the Parliament or even to the King of England Certainly no such thing could have been then pretended Therefore if any such Subordination there be it must arise from something that followed after the Descent of England to King Iohn for by that Descent England might as properly be Subordinate to Ireland as the converse Ireland being vested in the Royal Person of King Iohn Two and Twenty years before his Accession to the Crown of England and being a more Ancient Kingdom than the Kingdom of England As the English Orators in the Council of Constance An. 1417 confess'd and alledged as an Argument in the Contest between Henry the Fifth's Legates and those of Charles the Sixth King of France for Precedence Satis Constat say they secundum Albertum Magnum Bartholomeum de Proprietatibus Rerum quod toto Mundo in tres partes Diviso scilicet in Europam Asiam Africam for America was not then Discovered Europa in quatuor Dividitur Regna scilicet Primum Romanum Secundum Constantinopolitanum Tertium Regnum Hiberniae quod jam translatum est in Anglos Quartum Regnum Hispaniae Ex quo patet quod Rex Angliae Regnum suum sunt de Eminentioribus Antiquioribus Regibus Regnis totius Europae The Antiquity and Precedence of the King of England was allo'wd him wholly on the Account of his Kingdom of Ireland Perhaps it will be said That this Subordination of the Kingdom of Ireland to the Kingdom of England proceeds from Ireland's being Annex'd to and as it were united with the Imperial Crown of England by several Acts of Parliament both in England and Ireland since King Iohns time But how farr this Operates I shall Enquire more fully hereafter I shall only at present Observe that I conceive little more is Effected by these Statutes Than that Ireland shall not be Alien'd or Separated from the King of England who cannot hereby dispose of it otherwise than in Legal Succession along with England and that whoever is King of England is ipso facto King of Ireland and the Subjects of Ireland are oblig'd to Obey him as their Liege Lord. To proceed therefore After both Crowns were united on the Death of Richard the First without Issue in the Royal Person of King Iohn He about the Twelfth Year of his Reign of England went again into Ireland viz. the Twenty Eight day of Iune 1210. and Math. Paris tells us pag. 220. Cum Venisset ad Dublinensem Civitatem Occurrerunt ei ibidem plus quam 20 Reguli illius Regionis qui omnes Timore maximo preterriti homagium ei Fidelitatem fecerunt Fecit quoque Rex ibidem Construere Leges Consuetudines Anglicanas ponens Vicecomites aliosque Ministros qui populum Regni illius juxta Leges Anglicanas Judicarent His Son King Henry the Third came to the Crown the Nineteenth of October 1216. and in November following he Granted to Ireland a Magna Charta Dated at Bristol 12 November the First Year of his Reign 'T is Prefaced that for the Honour of God and Advancement of Holy Church by the Advice of his Council of England whose names are particularly recited He makes the following Grant to Ireland And then goes on Exactly Agreeable to the Magna Charta which he granted to England only in ours we have Civitas Dublin Avenliffee instead of Civitas London and Thamesis with other Alterations of the like kind where Needful But ours is Eight years older than that which he granted to England it not being till the Ninth Year of his Reign and ours is the First Year This Magna Charta of Ireland Concludes thus Quia vero sigillum nondum Habuimus presentem Cartam Sigillis Venerabilis Patris nostri Domini Gualt Apost Sedis Legati Willelmi Mar eschalli Comitis Pembrooke Rectoris nostri Regni nostri secimus Sigillari Testibus omnibus praenominatis alijs Multis Dâ—…t per Manus Praedictorum Domini Legati Willelmi Marescalli Apud Bristol Duodecimo die Novembr Regni nostri Anno Primo An Antient Coppy of this Magna Charta of Ireland is to be found in the Red Book of the Exchequer Dublin In February following in the First Year like wise of his Reign
26 Hen. 8. c. 3. and the Act of Faculties 25 Hen. 8. c. 21. though each of them by express words comprize All his Majesties Subjects and Dominions were not receiv'd as Laws in Ireland till the former was Enacted there 28 H. 8. c. 4. and the latter the 28 Hen. 8. c. 19. and so the Stature Restoring to the Crown all Jurisdiction Ecclesiastical made in England Anno 1 Eliz. c. 1. and therein giving Power to Erect an Ecclesiastical High-Commission-Court in England and Ireland yet was not of Force in Ireland till Enacted there Anno 2 Eliz. c. 1. And tho the said English Act in relation to Erecting such an High-Commission Court was Repeal'd 17 Car. 1. c. 11 and the Repeal confirm'd the 13 Car. 2. c. 12 And the late Bill of Rights 1 W. and M. Ses. 2. c. 2. in England has damn'd all such Courts Yet the Act in Ireland 2 Eliz. c. 1. remains still in force here and so it was lately declar'd here by the Lord High-Chancellour Porter Lord Chief Justice Reynel Lord Chief Baron Hely Mr. Justice Cox Mr. Justice Ieffreyson in the Case of Dr. Thomas Hacket late Bishop of Down who was depriv'd of the said Bishoprick by such a Commission for great Enormities the Commissioners being Dr. Dopping late Bishop of Meath Dr. King the present Bishop of London-Derry and Dr. Wiseman late Bishop of Dromore And truly I see no more Reason for Binding Ireland by the English Laws under the General Words of all his Majesties Dominions or Subjects than there is for Binding Scotland by the same for Scotland is as much his Dominion and Scots-men as much his Subjects as Ireland and Irish-men If it be said That Scotland is an Antient Separate and Distinct Kingdom from England I say So is Ireland The Difference is Scotland continued separate from the Kings of England till of late years and Ireland continued separate from England but a very little while in the Person of King Iohn before the Death of his Father and of his Brother Richard the First without issue But then 't is to be considered that there was a Possibility or even a Probability that Ireland might have continued separate from the Crown of England even to this very day if Richard the First had left behind him a Numerous Progeny Secondly As to such English Statutes as particularly Name Ireland and are therefore said to be of Force in this Kingdom tho' never Enacted here I shall consider only the more Antient Precedents that are offered in Confirmation of this Doctrine For as to those of later Date 't is these we complain of as bearing hard on the Liberties of this Country and the Rights of our Parliaments and therefore these ought not to be produced as Arguments against us I presume if I can shew that the Antient Precedents that are produced do not conclude against us it will follow that the Modern Instances given ought not to conclude against us that is to say plainly These ought not to have been made as they are as wanting Foundation both from Authority and Reason The Antient Precedents of English Statutes particularly Naming Ireland and said to be made in England with a Design of Binding Ireland are chiefly these three 1. Statutum Hiberniae 14 H. 3. 2. Ordinatio pro Statu Hiberniae 17 Edw. 1. 3. And the Act that all Staple Commodities passing out of England or Ireland shall be carried to Callis as long as the Staple is at Callis 2 Hen. 6. c. 4. on which Hussey delivered his Opinion as we shall see more fully hereafter These Statutes especially the two first being made for Ireland as their Titles import have given occasion to think that the Parliament of England have a Right to make Laws for Ireland without the Consent of their Chosen Representatives But if we Enquire farther into this matter we shall find this Conclusion not fairly Deduced First The Statutum Hiberniae 14 Hen. 3. as 't is to be found in the Collection of English Statutes is plainly thus The Judges in Ireland conceiving a Doubt concerning Inheritances devolved to Sisters or Coheirs viz. Whether the younger Sisters ought to hold of the Eldest Sister and do Homage unto her for their Portions or of the Chief Lord and do Homage unto him therefore Girald Fitz Maurice the then Lord Justice of Ireland dispatcht four Knights to the King in England to bring a Certificate from thence of the Practice there used and what was the Common-Law of England in that Case Whereupon Hen. 3. in this his Certificate or Rescript which is called Statutum Hiberniae meerly informs the Justice what the Law and Custom was in England viz. That the Sisters ought to hold of the Chief Lord and not of the Eldest Sister And the close of it commands that the foresaid Customs that be used within our Realm of England in this Case be Proclaimed throughout our Dominion of Ireland and be there observ'd Teste meipso apud Westminst 9. Feb. An. Reg. 14. From whence 't is manifest that this Statutum Hiberniae was no more than a Certificate of what the common Law of England was in that Case which Ireland by the Original Compact was to be governed by And shews no more that therefore the Parliament of England may bind Ireland than it would have proved that the Common Wealth of Rome was subject to Greece if after Rome had received the Law of the Twelve Tables they had sent to Greece to know what the Law was in some Special Case The Statute call'd Ordinatio pro Statu Hiberniae made at Notingham the 17th of Edward the First and to be found in Pultons Collection pag. 76. Edit Lond. 1670. was certainly never Received or of Force in Ireland This is Manifest from the very first Article of that Ordnance which Prohibits the Iustice of Ireland or others the Kings Officers there to Purchase Land in that Kingdom or within their respective Balliwicks without the Kings Licence on pain of Forfeitures But that this has ever been Otherwise and that the Lords Justices and other Officers here have Purchas'd Lands in Ireland at their own Will and Pleasure needs no Proof to those who have the least knowledge of this Country Nor does it appear by any Inquisition Office or other Record that any one ever Forfeited on that Account Moreover this Ordinatio pro Statu Hiberniae is really in it self No Act of Parliament but meerly an Ordinance of the King and his Privy Council in England which appears as well from the Preamble to the said Ordinance as from this Observation likewise That King Edward the First held no Parliament in the 17th year of his Reign Or if this were a Parliament this Ordinatio pro Statu Hiberniae is the only Act thereof that is Extant But 't is very improbable that only this single Ordinance should Appear if any such Parliament were call'd together Thirdly As to the Staple-Act 2
shall be Taken or Levy'd by Us or Our Heirs in Our Realm without the Good Will and Assent of Archbishops Bishops Earls Barons Knights Burgesses and other Freemen of the Land The like Liberties are specially Confirm'd to the Clergy the 14th of Edward the 3d. And were these Statutes and all other Statutes and Acts of the Parliament of England Ratified Confirmed and Adjudged by several Parliaments of Ireland to be of Force within this Realm And shall the People of Ireland receive no Benefit by those Acts Are those Statutes of Force in England only And can they add no Immunity or Priviledge to the Kingdom of Ireland when they are received there Can the King and Parliament make Acts in England to Bind his Subjects of Ireland without their Consent And can he make no Acts in Ireland with their Consent whereby they may receive any Priviledge or Immunity This were to make the Parliaments of Ireland wholly Illusory and of no Effect If this be Reasonable Doctrine To what end was Poyning's Law in Ireland that makes all the Statutes of England before that in Force in this Kingdom This might as well have been done and again undone when they please by a single Act of the English Parliament But let us not make thus light of Constitutions of Kingdoms 't is Dangerous to those who do it 't is Grievous to those that suffer it Moreover Had the King or his Council of England in the 10th year of Hen. VII in the least dreamt of this Doctrine to what end was all that strict Provision made by Poyning's Act Irish Stat. cap. 4. That no Act of Parliament should pass in Ireland before it was first Certified by the Chief Governour and Privy Council here under the Broad Seal of this Kingdom to the King and his Privy Council in England and received their Approbation and by them be remitted hither under the Broad Seal of England here to be pass'd into a Law The design of this Act seems to be the Prevention of any thing passing in the Parliament of Ireland Surreptitiously to the Prejudice of the King or the English Interest of Ireland But this was a needless Caution if the King and Parliament of England had Power at any time to revoke or annul any such Proceedings Upon this Act of Poynings many and various Acts have pass'd in Ireland relating to the Explanation Suspension or farther Corroboration thereof in divers Parliaments both in Henry the Eighth's Phil. Mary's and Q. Eliz. Reigns for which see the Irish Statutes All which shew that this Doctrine was hardly so much as Surmised in those Days however we come to have it raised in these Latter Times Fourthly 'T is against several Charters of Liberties Granted unto the Kingdom of Ireland This likewise is clearly made out by what foregoes I shall only add in this place That in the Patent-Roll of the 17 Rich. 2. m. 34. de Confirmatione There is a Confirmation of several Liberties and Immunities granted unto the Kingdom and People of Ireland by Edw. III. The Patent is somewhat long but so much as concerns this Particular I shall render verbatim as I have it Transcribed from the Roll by Sir William Doâ—…vile Attorny General in Ireland during the whole Reign of King Charles II. Rex omnibus c. Salutem Inspeximus Literas Patentes Domini Edwardi nuper Regis Angliae Avi nostri fact in haec verba Edwardus Dei Gra. Rex Angliae Franciae Dominus Hiberniae Archiepiscopis Episcopis Abbatibus Prioribus Ministris nostris tam Majoribus quam Minoribus quibuscunque aliis de Terra nostra Hiberniae fidelibus nostris ad quos Praesentes Literae pervenerint Salutem Quia c. Nos haec quae sequuntur Ordinanda Duximus firmiter observanda c. Imprimis vizt Volumus Praecipimus quod Sancta Hibernicana Ecclesia suas Libertates Liberas Consuetudines illesas habeat eis Libere gaudeat Utatur Item volumus praecipimus quod nostra ipsius Terrae Negotia presertim Majora Ardua in Consiliis per Peritos Consiliaros nostros ac Praelatos Magnates quosdam de Discretioribus Probioribus Hominibus de partibus vicinis ubi ipsa Concilia teneri Contigerit propter hoc evocandos in Parliamentis vero per ipsos Conciliaros nostros ac Praelatos Proceres aliosque de terra predicta prout Mos Exegit secundum Iusticiam Legem Consuetudinem Rationem tractentur deducantur fideliter timore favore odio aut praetio post positis discutiantur ac etiam terminentur c. In Cujus Rei Testimonium has Literas nostras fieri fecimus Patentes Teste meipso Apud Westminst 25 die Octob. Anno Regni nostris Angliae 31 Regni vero Franciae 18. Nos autem Ordinationes Voluntates Praecepta Praedicta ac omnia alia singula in Litteris praedictis Contenta Rata Habentes Grata Ea pro nobis Haeredibus nostris quantum in nobis est Acceptamus Approbamus Ratificamus Confirmamus prout Literae praedictae rationabiliter testanter In Cujus c. Test. Reg. apud Westminst 26 die Iunii Fifthly It is inconsistent with the Royalties and Praeeminence of a Separate and Distinct Kingdom That we are thus a Distinct Kingdom has been clearly made out before 'T is plain the Nobility of Ireland are an Order of Peers clearly Distinct from the Peerage of England the Priviledges of the one extend not into the other Kingdom a Lord of Ireland may be Arrested by his Body in England and so may a Lord of England in Ireland whilst their Persons remain Sacred in their respective Kingdoms A Voyage Royal may be made into Ireland as the Year-Book 11 Hen. 4. 17. fol. 7. and Lord Cook tells us and King Iohn in the 12th year of his Reign of England made a Voyage Royal into Ireland and all his Tenants in Chief which did not attend him in that Voyage did pay him Escuage at the Rate of Two Marks for every Knights Fee which was imposed super Praelatis Baronibus pro Passagio Regis in Hibernia as appears by the Pipe-Roll Scutag 12 Iohannis Regis in Scaccario Angl. Which shews that we are a Compleat Kingdom within our selves and not little better than a Province as some are so Extravagant as to Assert none of the Properties of a Roman Province agreeing in the least with our Constitution 'T is Resolved in Sir Richard Pembrough's Cafe in the 44th of Edw. III. That Sir Richard might lawfully refuse the King to serve him as his Deputy in Ireland and that the King could not Compel him thereto for that were to Banish him into another Kingdom which is against Magna Charta Chap. 29. Nay even tho Sir Richard had great Tenures from the King pro servitio Impenso Impendendo for that was said must be understood within the Realm of England Cooks 2d Inst.
Crown of England with a Design to make them Easie to England and to keep them in the Allegiance of the King of England How Consistent it may be with True Policy to do that which the People of Ireland may think is an Invasion of their Rights and Liberties I do most humbly submit to the Parliament of England to Consider They are Men of Great Wisdom Honour and Iustice and know how to prevent all future Inconveniencies We have heard Great Out-cries and deservedly on Breaking the Edict of Nantes and other Stipulations How far the Breaking our Constitution which has been of Five Hundred years standing exceeds that I leave the World to judge It may perhaps be urg'd That 't is convenient for the State of England that the Supream Council thereof should make their Jurisdiction as Large as they can But with Submission I conceive that if this Assumed Power be not Iust it cannot be convenient for the State What Cicero says in his Offices Nihil est Utile nisi idem sit Honestum is most certainly true Nor do I think that 't is any wise necessary to the Good of England to Assert this High Jurisdiction over Ireland For since the Statutes of this Kingdom are made with such Caution and in such Form as is prescribed by Poyning's Act 10 H. 7. and by the 3d and 4th of Phil. and Mar. and whilest Ireland is in English hands I do not see how 't is possible for the Parliament of Ireland to do any thing that can be in the least prejudicial to England But on the other hand If England assume a Iurisdiction over Ireland whereby they think their Rights and Liberties are taken away That their Parliaments are rendred meerly nugatory and that their Lives and Fortunes Depend on the Will of a Legislature wherein they are not Parties there may be ill Consequences of this Advancing the Power of the Parliament of England by breaking the Rights of another may in time have ill Effects The Rights of Parliament should be preserved Sacred and Inviolable wherever they are found This kind of Government once so Universal all over Europe is now almost Vanished from amongst the Nations thereof Our Kings Dominions are the only Supporters of this noble Gothick Constitution save only what little remains may be found thereof in Poland We should not therefore make so light of that sort of Legislature and as it were Abolish it in One Kingdom of the Three wherein it appears but rather Cherish and Encourage it wherever we meet it FINIS Introduction and Occasion of this Disquisition * Bishop of Derry in the House of Lords and Prohibiting Exportation of our Woollen Manufacture in the House of Commons Subject of this Enquiry Britain's first Expedition into Ireland * Giraldus Cambr. Hib. Expug Lib. I. C. 1 Hen. II. comes into Ireland Irish submit to him Ireland whether ever Conquer'd * Mr. Selden will not allow that ever H. 2. used this Stile Tit. Hon. Par. 2. G. 5. Sect. 26. Suppressing Rebellions whether a Conquest * Bishop of Salisbury's Pastoral Letter What Title is obtain'd by Conquest No Title gain'd by an Unjust Conquest What Title by a Just Conquest None over the Assisters in the Conquest None over the Non-Opposers Just Conquerour intitled to the Lives of the Opposers Just Conquerour how far impower'd over the Posterity of the Opposers How far over their Estates Practise of Conquerors otherwise Concessions granted by a Conquerour whether Obligatory What Concessions have been made from the Crown of England to the Kingdom of Ireland By Henry II. Irish Modus Tenendi Parliamentum a Tit. Hon. Par. 2. C. 5. Sect. 26. Edit Lond. An. 1672 b Against Cook 's 4th Instit C. 76. Parliaments very early in Ireland a Against the 4th Inst. c. 76. p. 249. a Togograph Hibern l 3. c. 18 Hib. Expug l. 11. c. 33 34. b Hoveden Annal parspost p. 302. Brampton Chr. Col. 1071. Knighton de Even Angl. l. c. c. 10 col 2394 2395. Pol. Virg. Hist. Angl. l. 13. Radul de Diceto Walsingbam c. Original Compact for Ireland King Iohn made King of Ireland By this Ireland made an Absolute separate Kingdom a Seldens Tit. Hon. Par. 1. C. 8 Sect. 5. Usher Archbibishop of Armagh of the Religion of the Antient Irish Cap. 11. b Act. Concil Constant. Ses. 28. MS. in Bib. Reg. not in the Printed Acts. Ireland in what sense Annex'd to England King Iohn comes a second time into Ireland The People submit to him Concessâ—… from Hen. III. a Pryn against the 4th Inst. c. 76. p. 250. Pa. 1 H. III. m. 13. intus Record out of Mr. Petyt of the Antiquity of Parliaments in Ireland Rot. 38 H. III in 4. Hibernta Farther Concessions from Hen. III b Against Cook 's 4th Instit p. 252. Claus. 12 H. III in 8 de Legibus Consuetudinibus Observandis in Hibern Recapitula tion a Fourth Instit b Against the 4th Instit. c Placita Parliamentaria English Laws Established in Ireland Law of Parliament Common Law Statute Law Statute-Law of England from the Norman Conquest to Hen. III. Law of Edward the Confessor a Selden 〈◊〉 speciâ—… ad eadmerum pag 17â—… Of Wil. Conq. b Leges W. 1. Cap. 63. apud Selden in notâ—…â—…d eadmerum p. 192. Of Hen. I. c Vid. Selden ut supra Of Hen II. Of K. John d Mat. Paris ad an 1215. pag. 253. c. Of Hen. III. a Cook 's Pref. to the 2d Inst. Engl. Statutes since the 9th Hen. III. introduced in Ireland Statutes of Merton Marlebr Westm. Gloucest Vid. Lib. Rubr. Scaccar Dubl a Annals of Ireland at the End of Camden's Britan. Edit 1637. page 196 197 c. b Ibid. p. 160. Pryn against the 4th Instit. Chap 76. All English Statutes before the 10th of Hen. VII in force in Ireland a Cook 's 4th Instit. Cap. 76. P. 351. b Vid. Irish Stat. English Statutes Declaratory of the Common Law in force in Ireland English Acts introductive of a New Law not of force in Ireland a Irish Stat. 13 C. 2. c. 2. 13 C. 2. c. 3. 14 15 C. 2. c. 1. 14 15 C. 2. c. 19. 17 18 C. 2. c. 3. 17. 18 C. 2. c. 11. English Stat. 12 C. 2. c. 12. 12 C. 2. c. 3. 12 C. 2. c. 14 12 C. 2. c. 24. 12 C. 2. c. 33. 16 17 C. 2. c. 5. * For we had two several Acts transmitted to us at different times to this very purpose One we rejected in the Lord Sydâ—…eys Government t'other we pass'd under the Lord Capell Objections Answer'd Objection from the Stat. of Rape Object English Statutes comprehending Ireland by general Words Act against Appeals to Rome Acts of First Fruits and Faculties a Title in the English Statutes is No Imposition shall be paid to the Bishop of Rome High-Commission-Court By the same Reason Scotland may be bound English Statutes naming Ireland Or dinatio pre Statu Hiberniae Staple-Act Merchants of Waterford's Case Members from Ireland in the Parliament of England Modern Acts of the Parliament of England naming Ireland Acts in favour of Adventurers in 1641. Acts in Cromwels time Cattle Act. Tobacco Act. Navigation Act. Note Exporting Wooll from Ireland is made penal by the Irish. Stat. 13 Hen. 8. c. 2. 28 Hen. 8. c. 17. But both these Statutes are obsolete The like may we observe of the 11 Eliz. c. 10. 13 El. c. 4. English Acts Binding Ireland since King William's Reign Act for the Protestant Irish Clergy Act against Commerce with France Act for Security of the Protestants of Ireland Act appointing New Oaths The Opinions of the Lawyers thereon Lord Chief Justice Cook 's Opinion Discuss'd a 20 H. 6. 8. Pilkington ' s Case 32 H. 6. 25. 20 Eliz. Dyer 360. Flowd Com. 360. Opinions of other Judges in Favour of Ireland Pilkiâ—…s Case a This Statute we may reckon amongst the number of those that are lost during the long Intervals of our Irish Acts noted before page 65. to be aboue 118 Years Merchants of Waterfords Case Prior of Lanthonys Case a Rot. Parl. An. 8. H. 6. in ult Argument from Acts of Succession and Recognition pass'd in Ireland Ireland's State Ecclesiastical Independent Argument from a Record in Reyley a 14 Ed. 2. Par. 2. Memb 21 Int. Objection drawn from a Writ of Error Declaration in the Irish Act of Faculties Farther Reasons offered in behalf of Ireland England's Title to Ireland by Purchase Object Ireland prejudicial to England's Trade therefore to be Bound Object Ireland a Colony Against the Rights of Mankind Consent only gives Law force Against the Common Law of England Against the Statute Law both of England and Ireland a See before pag. 65. b Pultons Col. Eng. Stats Edit 1670. pag. 63. c ibid. page 75. d ibid. page 113. e 10 H. 7. c. 22 a 28 H 8. c. 4. 28 H. 8. c. 20. 3 4 Ph. M. c. 4. 11 Eliz. Ses. 2. c. 1. 11 Eliz. Ses. 3. c. 8. Against several Concessions made to Ireland Inconsistent with the Royalties of a Kingdom Against the Kings Prerogative Against the Practice of former Ages Against the Resolution of Judges Destroys Property Greates Confusion Inconvenient to England to Assume this Power