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
Mankind and on whatsoever Ground any one Nation can Challenge it to themselves on the same Reason may the Rest of Adam's Children Expect it If what I Offer herein seems to carry any Weight in relation to my own Poor Country I shall be abundantly happy in the Attempt But if after all the Great Council of England Resolve the contrary 〈◊〉 shall then believe my self to be â—…n an Error and with the lowest Submission ask Pardon for my Assurance However I humbly presume I shall not be hardly Censur'd by them for offering to lay before them a fair State of our Case by such Information as I can procure especially when at the same time I declare my Intention of a Submissive Acquiescence in whatever they Resolve for or against what I Offer The Subject therefore of our present Disquisition shall be How far the Parliament of England may think it Reasonable to intermeddle with the Affairs of Ireland and Bind us up by Laws made in their House And seeing the Right 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 We shall Enquire into the following Particulars 1. First How Ireland became a Kingdom Annex'd to the Crown of England And here we shall at large give a faithful Narrative of the First Expedition of the Britains into this Country and King Henry the Second's Arrival here such as our best Historians give us 2. Secondly We shall Enquire Whether this Expedition and the English Settlement that afterwards follow'd thereon can properly be call'd a Conquest Or whether any Victories obtain'd by the English in any succeeding Ages in this Kingdom upon any Rebellion may be call'd a Conquest thereof 3. Thirdly Granting that it were a Conquest we shall Enquire what Title a Conquest gives 4. Fourthly We shall Enquire what Concessions have been from time to time made to Ireland to take off what even the most Rigorous Assertors of a Conquerour's Title do pretend to And herein we shall shew by what Degrees the English Form of Government and the English Statute-Laws came to be received among us And this shall appear to be wholly by the Consent of the People and Parliament of Ireland 5. Fifthly We shall Enquire into the Precedents and Opinions of the Learned in the Laws relating to this Matter with Observations thereon 6. Sixthly We shall Consider the Reasons and Arguments that may be farther Offered on one side and t'other and shall Draw some General Conclusions from the Whole As to the First We shall find the History of the First Expedition of the English into Ireland to be briefly thus In the Reign of King Henry the Second Dermot Fitzmurchard commonly called Mac-Morrogh Prince of Leinster who was a Man Cruel and Oppressive after many Battels with other Princes of Ireland and being Beaten and put to Flight by them Apply'd for Relief to King Henry the Second who was then busied in Aquitain the King was not then in such Circumstances as to afford him much Help However thus much he did for him By Letters Patents he granted License to all his Subjects throughout his Dominions to Assist the said Prince to Recover his Dominions These Letters Patents are to be seen in Giraldus Cambrensis who was Historiographer and Secretary to King Hen. II. and Accompanied him in his Expedition into Ireland and from him it is that we have this Relation The Irish Prince brought these Letters into England and caused them to be Read in the Audience of many People Beating up as it were for Voluntiers and free Adventurers into Ireland At length Richard Earl of Strigul now Chepstow in Monmouthshire Son of Earl Gilbert call'd Strongbow Agreed with him to Assist him in the Recovery of his Country on Condition that Dermot should give him his Eldest Daughter in Marriage and his Kingdom of Leinster after his Death About the same time Robert Fitz-Stephen Governour of Aberlefie in Wales Agreed likewise with Dermot to help him on Condition that he would grant to him and Maurice Fitzgerald in Fee the City of Wexford with two Cantreds or Hundreds of Land near adjoyning These Adventurers afterwards went over and were successful in Treating with the Irish and Taking Wexford Waterford Dublin and other Places Whereupon Earl Richard Strongbow married Dermot's Daughter and according to Compact succeeded him in his Kingdom A little after the Descent of these Adventurers King Henry II. himself went into Ireland with an Army in November 1172. and finding that his Subjects of England had made a very good hand of their Expedition he obtain'd from Earl Richard Strongbow a Surrender of Dublin with the Cantreds adjoyning and all the Maritine Towns and Castles But Strongbow and his Heirs were to Enjoy the Residue of Dermot's Principality King Hen. II. Landed at Waterford from Milford in Pembrookshire and staying there some few days says Giraldus Cambrensis Rex Corcagiensis Dormitius advenit ei tam Subjectionis vinculo quam fidelitatis Sacramento Regi Anglorum se sponte submisit He freely swore Fealty and Subjection to the King of England From thence he went to Lismore and thence to Cashel where Dunaldus King of Lymerick se quoque fidelem Regi exhibuit The like did all the Nobility and Princes in the South of Ireland Afterwards he marched to Dublin and there the Princes of the Adjacent Countries came to him sub Fidelitatis Subjectionis obtentu a Rege Pacem impetrabant Thus Cambrensis in his Hibernia Expugnata and there he mentions the several Princes that came in vizt Macshaghlin King of Ophaly O Carrol King of Uriel now Lowth O Rourk King of Meath Rotherick O Connor King of Connaught and Monarch as it were of the whole Island with divers others qui firmissimis fidelitatis subjectionis vinculis Domino Regi innodarunt in singulari Rotherico Conactiae Principe tanquam Insulae Monarchâ subditi redduntur universi nec alicujus fere in Insula vel nominis vel ominis erat qui Regiae Majestati Debitam Domino Reverentiam non exhiberet The same Relation we have from Roger Hoveden Annal. parsposter fol. 301. About the Kalends of November 1172. saith he King Henry II. of England took Shipping for Ireland at Milford and Landed at Waterford ibi venerunt ad eum Rex Corcagiensis Rex de Lymerick Rex de Oxenie Rex Midiae fere omnes Hiberniae Potentes And a little afterwards in the same place speaking of King Henry the Second's being at Waterford ibidem venerunt ad Regem Angliae omnes Archiepiscopi Episcopi Abbates totius Hiberniae receperunt eum in Regem Dominum Hiberniae jurantes ei heredibus suis Fidelitatem Regnandi super eos Potestatem in perpetuum inde Dederunt ei Chartas suas Exemplo autem Clericorum predicti Reges Principes Hiberniae
by consulting the Statute Books And in the First year of William and Mary Ses. 2. c. 9. an Act passed in England declaring all Attainders and other Acts made in the late pretended Parliament under King James at Dublin void But was not Enacted here in Ireland till the 7th year of K. William c. 3. And this was thought requisite to be done upon mature consideration thereon before the King and Council of England notwithstanding that the English Act does particularly name Ireland and was wholly design'd for and relates thereto The like may we find in several other Statutes of England passed since his present Majesties Accession to the Throne which have afterwards been passed here in Ireland with such Alterations as make them practicable and agreeable to this Kingdom Such as are amongst others the Act for Disarming Papists The Act of Recognition The Act for taking away Clergie from some Offenders The Act for taking Special Bail in the Country c. The Act against Clandestine Mortgages The Act against Cursing and Swearing These with many more are to to be found in our Statute Books in the several Reigns of Henry the 8th Edward the 6th Queen Elizabeth King Iames King Charles the 1st and 2d and King William But it is not to be found in any Records in Ireland that ever any Act of Parliament introductive of a new Law made in England since the time of King Iohn was by the judgment of any Court received for Law or put in Execution in the Realm of Ireland before the same was Confirmed and Assented to by Parliament in Ireland And thus I presume we have pretty clearly made out our Fourth Enquiry forementioned and shewn plainly the several steps by which the English form of Government and the English Statute Laws were received in this Kingdom and that this was wholly by the Peoples consent in Parliament to which we have had a very antient Right and as full a Right as our next Neighbours can pretend to or challenge I shall now consider the Objections and Difficulties that are moved on this Head drawn from Precedents and Passages in our Law-Books that may seem to prove the contrary First 't is urg'd That in the Irish Act concerning Rape passed anno 8 Edward 4 c. 1. 't is expressed That a Doubt was conceiv'd whether the English Statute of the 6th of Richard the 2d c. 6. ought to be of force in Ireland without a Confirmation thereof in the Parliament of Ireland Which shews as some alledg that even in those days it was held by some That an Act of of Parliament in England might bind Ireland before it be consented to in Parliament here But I concieve this Gloss is rais'd meerly for want of Expressing the Reason of the said Doubt in the Irish Statute of the 8th of Edward the 4th c. 1. which we may reasonably judge was this By the Statute of Westminster the 2d c. 34. a Woman that eloped from her Husband and lived with the Adulterer or a Wife that being first Ravish'd did afterwards consent and lived with the Ravisher she should loose her Dower This Statute of Westminster the 2d was made of force in Ireland by an Act passed here the 13th of Edward the 2d as we have seen before pag. 68 69. Afterwards by the English Statute of the 6th of Rich. the 2d c. 6. there was a farther addition made to the said Statute of Westminster the 2d to this effect That a Maiden or Wife being Ravished and afterwards consenting to the Ravishers as well the Ravisher as she that was Ravished shall be disabled to claim all Inheritance or Dower after the death of her Husband or Ancestor On this account the Doubt was here raised in Ireland in the 8th of Edward the 4th c. 1. Whether this latter English Statute of the 6th of Richard the 2d c. 6. were not in force in Ireland by virtue of the Irish Statute of the 13th of Edward the 2d which confirmed the Statute of Westminster the 2d c. 34. And for setling this Doubt the said Statute of the 8th of Edward the 4th c. 1. was passed in Ireland and we find very good reason for the said Doubt For the English Statute of the 6th of Richard the 2d c. 6. contained but a small addition to the Statute of Westminster the 2d c. 34. and we see that even this ad dition it self was judged not to be of force in Ireland till Enacted here For the said Irish Statute of the 8th of Edward the 4th c. 1. makes the said Statute of the 6th of Rich. 2d c. 6. of Force in Ireland only from the 6th of March then last past 'T is urg'd secondly That tho' perhaps such Acts of Parliament in England which do not Name Ireland shall not be construed to Bind Ireland yet all such English Statutes as mention Ireland either by the General Words of all his Majesty's Dominions or by particularly Naming of Ireland are and shall be of Force in this Kingdom This being a Doctrine first broach'd Directly as I conceive by Will. Hussey Lord Chief Justice of the Kings Bench in England in the first year of Henry the Seventh and of late Revived by the Lord Chief Justice Cook and strongly urged and much rely'd upon iâ—… these latter Days I shall take thâ—… Liberty of Enlarging thereon tho I venture thereby to swell this Pamphlet to a size greater than I desire or design'd First therefore 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 the Opinions of the Kings of England and their Privy Council have been otherwise 'T is well known since Poyning's Act in Ireland the 10th of Henry the Seventh no Act can pass in our Parliament here till it be first Assented to by the King and Privy Council of England and Transmitted hither under the Broad Seal of England Now the King and his Privy Council there have been so far from surmising that an Act of Parliament of England mentioning only in General All the Kings Dominions or Subjects should Bind Ireland that they have clearly shewn the contrary by frequently Transmitting to Ireland to be pass'd into Laws here English Statutes wherein the General Words of all the Kings Dominions or Subjects were contain'd which would have been to no purpose but meerly Actum Agere had Ireland been Bound before by those English Statutes Of this I shall give the following Examples amongst many others The Act of Parliament in England against Appeals to Rome 24 Hen. 8. c. 12. by express words extends to all his Majesties Dominions yet the same was not in force nor receiv'd in Ireland till it was Enacted by Parliament there the 28th of Hen. 8. c. 6. In like manner the Statutes made in England concerning First Fruits
Hen. 6. c. 4. which expresly names Ireland and Hussey's Opinion thereon The Case as we find it in the Year-Books of Mich. 2 Rich. 3. fol. 11. and Mich. 1 Hen. 7. fol. 3. is in short thus The Merchants of Waterford having Ship'd off some Wooll and consign'd it to Sluice in Flanders the Ship by stress of Weather was put in at Callis where Sir Thomas Thwaits Treasurer of Callis seized the said Wooll as forfeited half to himself and half to the King by the said Statute hereupon a Suit was commenced between the said Merchants and the said Treasurer which was brought before all the Judges of England into the Exchequer Chamber The Merchants pleaded the King's License to the Citizens of Waterford and their Successors for carrying Wooll where they pleased and the Questions before the Judges were two Viz. Whether this Staple-Act Binds Ireland And Secondly Whether the King could grant his License contrary to the Statute and especially where the Statute gives half the Forfeiture to the Discoverer The first Point only relates to our present purpose and herein we find the foresaid Year-Book of 2 Rich. 3. fol. 12. to Report it thus Et ibi in the Exchequer Chamber quoad Primam Questionem Dicebant quod Terr Hibern inter se habent Parliament omnimodo Curprout in Angl. per Idem Parliamentum faciunt Leges Mutant Leges non Obligantur per Statuta in Anglia quia non hic habent Milites Parliamenti and is not that an unanswerable Reason sed hoc intelligitur de terris rebus in terris illis tantum efficiendo sed Personae eorum sunt Subject Regis tanquam Subjecti erunt Obligati ad aliquam rem extra Terram illam faciend contra Statut. sicut habitantes in Calesia Gascoignie Guien c. dum fuere Subjecti Obedientes erunt sub Admiral Angl. de re fact super Altum Mare similit Brev. de Errore de Iudicio reddit in Hibern in Banco Reg. hic in Angl. I have verbatim transcribed this Passage out of the foresaid Year-Book that I might be sure to omit nothing that may give the Objection its full weight And all that I can answer to it is this 1. That when the foresaid Case came a second time under the Consideration of the Judges in the Exchequer Chamber in Mich. 1 Hen. 7. fol. 3. we find it Reported thus Hussey the Chief Iustice said That the Statutes made in England shall bind those of Ireland which was not much gain-said by the other Iudges notwithstanding that some of them were of a contrary Opinion the last Term in his Absence How the Presence and Opinion of the Chief Justice came to influence them now I leave the Reader to judge 2. That Brook in Abridging this Case of the first of Hen. 7. fol. 3. Title Parliament Sec. 90. adds Tamen Nota That Ireland is a Kingdom by it self and hath Parliaments of its own intimating thereby That therefore Hussey's Opinion herein was Unreasonable 3. That 't is manifest if Hussey mean by his words That All Acts of Parliament in England shall bind Ireland it is directly contrary to the Judges Opinion in the second of Richard the Third before recited for within the Land of Ireland they are all positive That the Authority of the Parliament of England will not Affect us They seem at the utmost reach to extend the Jurisdiction of the English Parliament over the Subjects of Ireland only in relation to their Actions beyond Seas out of the Realm of Ireland as they are the King of England's Subjects but even This will Appear Unreasonable when we consider that by the same Argumentation Scotland it self may be bound by English Laws in relation to their Foreign Trade as they are the King of Englands Subjects The Question is Whether England and Ireland be two Distinct Kingdoms and whether they have each their Respective Parliaments neither of which will be deny'd by any Man And if so there can be no Subordination on either side each is compleat in its own Jurisdiction and ought not to interfere with t'other in any thing If being the King of England's Subjects be a Reason why we ought to submit to Laws in relation to our Trade abroad in places where the Parliament of England has no Jurisdiction which have not receiv'd our Assent the People of England will consider whether they also are not the King's Subjects and may therefore by this way of Reasoning be bound by Laws which the King may Assign them without their Assent in relation to their Actions Abroad or Foreign Trade Or whether they had not been Subjects to the King of France had our Kings continu'd their Possession of that Country and there kept the Seat of the Monarchy and then had France been stronger than England it might seem that the Subjects of these Kingdoms might have been bound by Laws made at Paris without their own Consent But let this Doctrine never be mention'd amongst the Free-born Subjects of these Nations Thus I have done with the Three Principal Instances that are usually brought against us on the Stress that is laid on English Acts of Parliament particularly Naming Ireland There have been other Statutes or Ordinances made in England for Ireland which may reasonably be of force here because they were made and Assented to by our own Representatives Thus we find in the White Book of the Exchequer in Dublin in the 9th year of Edward the First a Writ sent to his Chancellour of Ireland wherein he mentions Quaedam Statuta per nos de Assensu Prelatorum Comitum Baronum Communitates Regni nostri Hiberniae nuper apud Lincoln quaedam alia Statuta postmodum apud Eborum facta These we may suppose were either Statutes made at the Request of the States of Ireland to Explain to them the Common Law of England or if they were introductive of New Laws yet they might well be of force in Ireland being Enacted by the Assent of our own Representatives The Lords Spiritual and Temporal and Commons of Ireland as the Words afore-mention'd do shew And indeed these are Instances so far from making against our Claim that I think nothing can be more plainly for us for it manifestly shews that the King and Parliament of England would not Enact Laws to Bind Ireland without the Concurrence of the Representatives of this Kingdom Formerly When Ireland was but thinly Peopled and the English Laws not fully currant in all parts of the Kingdom 't is probable that then they could not frequently Assemble with conveniency or safety to make Laws in their own Parliaments at home and therefore during the Heats of Rebellions oâ—… Confusion of the Times they were forced to Enact Laws in England But then this was always by their proper Representatives For we find that in the Reign of Edward the Third and by what foregoes 't is plain 't was so in Edward the First
a Tenth or Fifteenth be granted by Parliament in England that shall not Bind Ireland although the King should send the same Statute into Ireland under his Great Seal Except they in Ireland will in their Parliament Approve it Because they have not any Commandment by Writ to come to the Parliament of England And this was not Denied by Markham Yelverton or Ascough The Merchants of Waterford's Case which I have observed before pag. 90. as Reported in the Year Book of the 2d of Richard the 3d. fol. 11 12 is notorious on our behalf but needs not be here repeated The Case of the Prior of Lanthony in Wales mentioned by Mr. Pryn against the 4th Inst. ch 76. p. 313. is usually cited against us But I conceive 't is so far from proving this that 't is very much in our Behalf The Case was briefly thus The Prior of Lanthony brought an Action in the Com. Pleas of Ireland against the of Prior Mollingar for an Arrear of an Annuity and Judgment went against the Prior of Mollingar hereon the Prior of Mollingar brought a Writ of Error in the King's Bench of Ireland and the Judgment was affirmed Then the Prior of Mollingar Appeal'd to the Parliament in Ireland held 5 Hen. 6. before Iames Butler Earl of Ormond and the Parliament Revers'd both Judgments The Prior of Lanthony removed all into the King's Bench in England but the King's Bench refused to intermeddle as having no Power over what had pass'd in the Parliament of Ireland Hereupon the Prior of Lanthony Appeal'd to the Parliament of England And it does not appear by the Parliament Roll that any thing was done on this Appeal all that is Entred being only the Petition it self at the end of the Roll. Vid. Pryn against the 4th Instit. chap. 76. p. 313. Now whether this be a Precedent proving the Subordination of our Irish Parliament to that of England I leave the Reader to judge To me it seems the clear contrary For first we may observe the King's Bench in England absolutely disclaiming any Cognisance of what had passed in the Parliament of Ireland And next we may observe That nothing at all was done therein upon the Appeal to the Parliament of England Certainly if the Parliament of England had thought themselves to have a Right to Enquire into this Matter they had so done one way or t'other and not left the Matter Undetermin'd It has ever been acknowledged that the Kingdom of Ireland is inseparably annex'd to the Imperial Crown of England The Obligation that our Legislature lies under by Poyning's Act 10 H. 7. c. 4. makes this Tye between the two Kingdoms indissoluble And we must ever own it our Happiness to be thus Annex'd to England And that the Kings and Queens of England are by undoubted Right ipso facto Kings and Queens of Ireland And from hence we may reasonably conclude that if any Acts of Parliament made in England should be of force in Ireland before they are Received there in Parliament they should be more especially such Acts as relate to the Succession and Settlement of the Crown and Recognition of the Kings Title thereto and the Power and Iurisdiction of the King And yet we find in the Irish Statutes 28 Hen. VIII c. 2. An Act for the Succession of the King and Queen Ann and another Chap. 5. declaring the King to be Supream Head of the Church of Ireland both which Acts had formerly pass'd in the Parliament of England So likewise we find amongst the Irish Statutes Acts of Recognition of the Kings Title to Ireland in the Reigns of Henry the Eighth Queen Elizabeth King Iames King Charles the Second King William and Queen Mary By which it appears that Ireland tho' Annex'd to the Crown of England has always been look'd upon to be a Kingdom Compleat within it self and to have all Jurisdiction to an Absolute Kingdom belonging and Subordinate to no Legislative Authority on Earth Tho' 't is to be Noted these English Acts relating to the Succession and Recognition of the Kings Title do particularly Name Ireland As the Civil State of Ireland is thus Absolute within it self so likewise is our State Ecclesiastical This is manifest by the Canons and Constitutions and even by the Articles of the Church of Ireland which differ in some things from those of the Church of England And in all the Charters and Grant of Liberties and Immunities to Ireland we still find this That Holy Church shall be Free c. I would fain know what is meant here by the word Free Certainly if our Church be Free and Absolute within it self our State must be so likewise for how our Civil and Ecclesiastical Government is now interwoven every body knows But I will not enlarge on this head it suffices only to hint it I shall detain my self to our Civil Government Another Argument against the Parliament of England's Jurisdiction over Ireland I take from a Record in Reyley's Placita Parliamentaria pag. 569. to this effect In the 14th of Edward the Second the King sent his Letters Patents to the Lord Justice of Ireland leting him know That he had been moved by his Parliament at Westminster that he would give Order that the Irish Natives of Ireland might enjoy the Laws of England concerning Life and Member in as large and ample manner as the English of Ireland enjoy'd the same This therefore the King gives in Commandment and orders accordingly by these his Letters Patents From hence I say we may gather That the Parliament of England did not then take upon them to have any Iurisdiction in Ireland for then they would have made a Law for Ireland to this Effect but instead thereof they Apply to the King that he would interpose his Commands and give Directions that this great Branch of the Common Law of England should be put in Execution in Ireland indifferently to all the Kings Subjects there pursuant to the Original Compact made with them on their first Submission to the Crown of England Let us now consider the great Objection drawn from a Writ of Error 's lying from the Kings Bench of England on a Judgment given in the Kings Bench in Ireland which proves as 't is insisted on that there is a Subordination of Ireland to England and that if an Inferiour Court of Judicature in England can thus take cognizance of and over-rule the Proceedings in the like Court of Ireland it will follow that the Supream Court of Parliament in England may do the same in relation to the Proceedings of the Court of Parliament in Ireland It must be confess'd that this has been the constant Practice and it seems to be the great thing that induced my Lord Cook to believe that an Act of Parliament in England and mentioning or Including Ireland should Bind here The Subordination of Ireland to England he seems to infer from the Subordination of the Kings
any Power to Controul the Chancery in Ireland because as Lambard says p. 69 70. The Chancery did follow the King as the Kings Bench did and that as he tells us out of the Lord Chief Justice Scroope the Chancery and the Kings Bench were once but one Place But if this be the ground of the Jurisdiction of the Kings Bench in England over the Kings Bench in Ireland as I am fully perswaded it is the Parliament in England cannot from hence claim any Right of Jurisdiction in Ireland because they claim a Iurisdiction of their own and their Court is not the Kings Court in that proper and strict sence that the Kings Bench is But granting that the Subordination of the Kings Bench in Ireland to the Kings â—…ch in England be rightly concluded from a Writ of Error out of the latter â—…ying on a Judgment in the former I see no Reason from thence to conclude that therefore the Parliament of Ireland is Subordinate to the Parliament in England unless we make any one sort of Subordination or in any one part of Jurisdiction to be a Subordination in all Points and all parts of Jurisdiction The Subjects of Ireland may Appeal to the King in his Bench in England for the Expounding of the Old common and Statute-Law of Ireland will it therefore follow that the Parliament of England shall make New Laws to bind the Subjects in Ireland I see no manner of Consequence in it unless we take Expounding Old Laws or Laws already made in the-Kings Bench and making New Laws in Parliament to be one and the same thing I believe the best Logician in Europe will hardly make a Chain of Syllogisms that from such Premises will regularly induce such a Conclusion To close this Point We find that a Judgment of the Kings Bench in Ireland may be Removed by a Writ of Error to the Parliament in Ireland But the Judgment of the Parliament of Ireland was never question'd in the Parliament of England This Appears from the Prior of Lanthony's Case aforegoing I shall conclude this our Fifth Article with a memorable Passage out of our Irish Statutes which seems to strengthen what we have delivered on the Business of a Writ of Error as well as the chief Doctrine I drive at and that is 28 H. VIII Chap. 19. The Act of Faculties This Statute is a Recital at large of the English Act of the 25 Hen. VIII c. 21. In the Preamble of which English Act 't is Declared That this Your Graces Realm Recognizing no Superiour but Your Grace hath been and yet is free from any Subjection to any Mans Laws but only such as have been Devised within this Realm for the Wealth of the same or to such others as by Sufferance of Your Grace and Your Progenitors the People of the Realm have taken at their Free Liberties by their own Consent and have bound themselves by long Use and Custom to the Observance of c. This Declaration with the other Clauses of the said English Act is verbatim recited in the Irish Act of Faculties and in the said Irish Act it is Enacted That the said English Act and every thing and things therein contained shall be Established Affirmed Taken Obey'd and Accepted within this Land of Ireland as a good and perfect Law and shall be within the said Land of the same Force Effect Quality Condition Strength and Vertue to all Purposes and Intents as it is within the Realm of England if so then the said Clause declares our Right of being bound only by Laws to which we Consent as it does the Right of the People of England And that all Subjects within the said Land of Ireland shall enjoy the Profit and Commodity thereof in like manner as the Kings Subjects of the Realm of England I am now Arrived at our Sixth and Last Article Proposed viz. The Reasons and Arguments that may be be farther Offered on one side and t'other in this Debate I have before taken notice of the Title England pretends over us from Conquest I have likewise enquired into the Precedents on one side and t'other from Acts of Parliament from Records and from Reports of the Learned in the Laws There remains another Pretence or two for this Subordination to be Considered and one is founded on Purchase 'T is said That vast Quantity of Treasure that from time to time has been spent by England in Reducing the Rebellions and carrying on the Wars of Ireland has given them a just Title at least to the Lands and Inheritances of the Rebels and to the absolute Disposal thereof in their Parliament And as particular Examples of this we are told of the great Sums Advanced by England for suppressing the Rebellion of the Irish Papists in 41. and Opposing the late Rebellion since King WILLIAM's Accession to the Throne To this I Answer That in a War there is all Reason imaginable that the Estates of the Unjust Opposers should go to repair the the Damage that is done This I have briefly hinted before But if we consider the Wars of Ireland we shall perceive they do not resemble the common Case of Wars between two Foreign Enemies Ours are rather Rebellions or Intestine Commotions that is The Irish Papists rising against the King and Protestants of Ireland and then 't is plain that if these Latter by the Assistance of their Brethren of England and their Purse do prove Victorious the People of England ought to be fully Repaid But then the manner of their Payment and in what way it shall be Levied ought to be left to the People of Ireland in Parliament Assembled And so it was after the Rebellion of 41. The Adventurers then were at vast Charges and there were several Acts of Parliament in England made for their Re-imbursing by disposing to them the Rebels Lands But after all it was thought Reasonable that the Parliament of Ireland should do this in their own way and therefore the Acts of Settlement and Explanation made all the former English Acts of No Force or at least did very much Alter them in many Particulars as we have Noted before In like manner we allow that England ought to be repaid all their Expences in supressing this late Rebellion All we defire is That in Preservation of our own Rights and Liberties we may do it in our own Methods regularly in our own Parliament And if the Re-imbursement be all that England stands upon what availeth it whether it be done this way or that way so it be done We have an Example of this in Point between England and Holland in the Glorious Revolution under His Present Majesty Holland in Assisting England Expended 600000 Pounds and the English Parliament fairly repay'd them It would have look'd oddly for Holland to have insisted on Disposing of Lord Powis's and other Estates by their own Laws to re-imburse themselves 'T is an Ungenerous thing to villifie good Offices I am far from doing
Multitudes of Men therefore utterly without our Consent we could in such sort be at no Mans Commandment living And to be commanded we do consent when that Society whereof we are part hath at any time before consented without revoking the same after by the like Universal Agreement Wherefore as any Mans Deed past is good as long as himself continueth so the Act of a Publick Society of Men done five hundred years sithence standeth as theirs who presently are of the same Societies because Corporations are Immortal we were then alive in our Predecessors and they in their Successors do still live Laws therefore Humane of what kind soever are available by Consent c. And again But what matter the Law of Nations doth contain I omit to search the strength and vertue of that Law is such that no particular Nation can lawfully prejudice the same by any their several Laws and Ordinances more then a Man by his Private Resolutions the Law of the whole Commonwealth or State wherein he liveth for as Civil Law being the Act of a whole Body Politick doth therefore over-rule each Civil part of the same Body so there is no Reason that any one Commonwealth of it self should to the Prejudice of another annihilate that whereupon the whole World hath Agreed To the same purpose may we find the Universal Agreement of all Civilians Grotius Puffendorf Lock 's Treat Government c. No one or more Men can by Nature challenge any Right Liberty or Freedom or any Ease in his Property Estate or Conscience which all other Men have not an Equally Iust Claim to Is England a Free People So ought France to be Is Poland so Turky likewise and all the Eastern Dominions ought to be so And the same runs throughout the whole Race of Mankind Secondly 'T is against the Common Laws of England which are of Force both in England and Ireland by the Original Compact before hinted It is Declared by both Houses of the Parliament of England 1 Iac. cap. 1. That in the High Court of Parliament all the whole Body of the Realm and every particular Member thereof either in Person or by Representation upon their own Free Elections are by the Laws of this Realm deem'd to be Personally present Is this then the common Law of England and the Birth-right of every Free-born English Subject And shall we of this Kingdom be deny'd it by having Laws imposed on us where we are neither Personally nor Representatively present My Lord Cooke in his 4th Inst. cap. 1. saith That all the Lords Spiritual and Temporal and all the Commons of the whole Realm ought ex Debito Justiciae to be Summon'd to Parliament and none of them ought to be Omitted Hence it is call'd Generale Concilium in the Stat. of Westminst 1. and Commune Concilium because it is to comprehend all Persons and Estates in the whole Kingdom And this is the very Reason given in the Case of the Merchants of Waterford foregoing why Statutes made in England should not bind them in Ireland Quia non habent Milites hic in Parliamento Because they have no Representatives in the Parliament of England My Lord Hobbard in the Case of Savage and Day pronounced it for Law That whatever is against Natural Equity and Reason is against Law Nay if an Act of Parliament were made against Natural Equity and Reason that Act was void Whether it be not against Equity and Reason that a Kingdom regulated within it self and having its own Parliament should be Bound without their Consent by the Parliament of another Kingdom I leave the Reader to consider My Lord Cooke likewise in the first Part of his Institutes fol. 97. b. saith Nihil quod est contra Rationem est Licitum And in the old Modus Tenendi Parliamenta of England said to be writ about Edward the Confessor's time and to have been Confirmed and Approved by William the Conqueror It is expresly declared That all the Lords Spiritual and Temporal and the Knights Citizens and Burgesses ought to be summoned to Parliament The very same is in the Modus sent into Ireland by Henry the 2d And in King Iohn's Great Charter dated 17. Iohannis 't is granted in these words Et ad habend Commune Concilium Regni de Auxiliis Scutagiis Assidendis Submoneri faciemus Arâ—…hiepiscopos Episcopos Abbates Comites Majores Barones Regni Sigillatim per Literas Nostras faciemus submoneri in generali per Vicecomites omnes alios c. Math. Paris ad An. 17. Iohann All are to be Summoned to Parliament the Nobility by special Writts the Commons by general Writts to the Sheriffs And is this the Common Law of England Is this part of those Liberae Consuetudines that were contained in the Great Charter of the Liberties of the People of England And were so solemnly granted by Henry II. King Iohn and Henry the 3d to the People of Ireland that they shou'd Enjoy and be Governd by and unto which they were Sworn to be Obedient And shall they be of Force only in England and not in Ireland Shall Ireland Receive these Charters of Liberties and be no Partakers of the Freedoms therein contained Or do these words signifie in England one thing and in Ireland no such thing This is so repugnant to all Natural Reason and Equity that I hope no Rational Man will Contest it I am sure if it be so there 's an end of all Speech amongst Men All Compacts Agreements and Societies are to no purpose 3. It is against the Statute Laws both of England and Ireland this has been pretty fully disuss'd before however I shall here again take notice That in the 10. of Henry the 4th it was Enacted in Ireland that Statutes made in England should not be of Force in Ireland unless they were Allowed and Published by the Parliament of Ireland And the like Statute was made the 29th of Henry the 6th And in the 10th Year of Henry the 7th Chap. 23 Irish Statutes The Parliameâ—… which was held at Drogheda beforâ—… Sir Christopher Preston Deputy to Iaspar Duke of Bedford Lieutâ—… nant of Ireland was declared Void for this Reason amongst others That there was no General Summons of the said Parliament to all the Shires but only to Four And if Acts of Parliament made in Irelanâ—… shall not Bind that People because some Counties were omitted how much less shall either their Persons or Estates be Bound by those Acts made in England whereat no one County or Person of that Kingdom is present In the 25tâ—… of Edward the 1st Cap. 6. It was Enacted by the Parliament of England in these Words Moreover from henceforth we shall take no manner of Aid Taxes or Prizes but by the Common Assent of the Realm And again in the Statute of Liber ties by the same King Cap. 1. Dâ—… Tallag non Concedend it is Enacted in these Words No Tallage or Aid
pag. 47. And in Pilkington's Case aforemention'd Fortescue declared That the Land of Ireland is and at all times hath been a Dominion Separate and Divided from England How then can the Realms of England and Ireland being Distinct Kingdoms and Separate Dominions be imagin'd to have any Superiority or Iurisdiction the one over the other 'T is absurd to fancy that Kingdoms are Separate and Distinct meerly from the Geographical Distinction of Territories Kingdoms become Distinct by Distinct Iurisdictions and Authorities Legislative and Executive and as Rex est qui Regem non habet so Regnum est quod alio non Subjicitur Regno A Kingdom can have no Supream 't is in it self Supream within it self and must have all Jurisdictions Authorities and Praeeminencies to the Royal State of a Kingdom belonging or else 't is none And that Ireland has all these is declared in the Irish Stat. 33 Hen. VIII c. 1. The chief of these most certainly is the Power of Making and Abrogating its own Laws and being bound only by such to which the Community have given their Consent Sixthly It is against the Kings Prerogative that the Parliament of England should have any Co-ordinate Power with Him to introduce New Laws or Repeal Old Laws Established in Ireland By the Constitution of Ireland under Poyning's Act the King's Prerogative in the Legislature is advanced to a much higher Pitch than ever was Challenged by the Kings in England and the Parliament of Ireland stands almost on the same bottom as the King does in England I say almost on the same Bottom for the Irish Parliament have not only a Negative Vote as the King has in England to whatever Laws the King and his Privy 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 according to Poyning's Act must be Pass'd or Rejected in the very Words even to a Tittle as they are said before our Parliament we cannot alter the least Iota 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 Kings Prerogative is much Narrower and as it were Reversed for there the King has only a Negative Vote I humbly conceive 't is an Incroachment on the Kings Prerogative But this I am sure the Parliament of England will be always very Tender of and His Majesty will be very loth to have such a Precious Jewel of his Crown handled rufly The Happiness of our Constitutions depending on a Right Temperament between the Kings and the Peoples Rights Seventhly It is against the Practice of all former Ages Wherein can it appear that any Statute made in England was at any time since the Reign of Henry the Third allowed and put in practice in the Realm of Ireland without the Authority of the Parliament of Ireland Is it not manifest by what foregoes that from the Twentieth of King Henry the Third to the Thirteenth of Edward the Second and from thence to the Eighteenth of Henry the Sixth and from thence to the Thirty-Second of Henry the Sixth and from thence to the Eighth of Edward the Fourth and from thence to the Tenth of Henry the seventh there was special care taken to Introduce the Statutes of England such of them as were necessary or convenient for this Kingdom by degrees and always with Allowance and Consent of the Parliament and People of Ireland And since the General Allowance of all the English Acts and Statutes in the Tenth of Henry the Seventh there have several Acts of Parliament which were made in England in the Reigns of all the Kings from that Time Successively to this very Day been particularly Receiv'd by Parliament in Ireland and so they become of force here and not by reason of any General Comprehensive words as some Men have lately fancied For if by General Comprehensive Words the Kingdom of Ireland could be bound by the Acts of Parliament of England what needed all the former Receptions in the Parliament of Ireland or what use will there be of the Parliament of Ireland at any time If the Religion Lives Liberties Fortunes and Estates of the Clergy Nobility and Gentry of Ireland may be dispos'd of without their Privity and Consent what Benefit have they of any Laws Liberties or Priviledges granted unto them by the Crown of England I am loth to give their Condition an hard Name but I have no other Notion of Slavery but being Bound by a Law to which I do not Consent Eighthly 'T is against several Resolutions of the Learned Iudges of former times in the very Point in Question This is manifest from what foregoes in the Case of the Merchants of Waterford Pilkington's Case Prior of Lanthony's Case c. But I shall not here inlarge farther thereon Ninthly The Obligation of all Laws having the same Foundation if One Law may be Imposed without Consent any Other Law whatever may be Imposed on us Without our Consent This will naturally introduce Taxing us without our Consent and this as necessarily destroys our Property I have no other Notion of Property but a Power of Disposing my Good as I please and not as anotheâ—… shall Command Whatever another may Rightfully take from me without my Consent I have certainly no Property in To Tax me without Consent is little better if at all than down-right Robbing me I am sure the Great Patriots of Liberty and Property the Free Peo Ple of England cannot think of such a thing but with Abhorrence Lastly The People of Ireland are left by this Doctrine in the Greatest Confusion and Uncertainty Imaginable We are certainly bound to Obey the Supream Authority over us and yet hereby we are not permitted to know Who or What the same is whether the Parliament of England or that of Ireland or Both And in what Cases the One and in what the Other Which Uncertainty is or may be made a Pretence at any time for Disobedience It is not impossible but the Different Legislatures we are subject to may Enact Different or Contrary Sanctions Which of these must we obey To conclude all I think it highly Inconvenient for England to Assume this Authority over the Kingdom of Ireland I believe there will need no great Arguments to convince the Wise Assembly of English Senators how inconvenient it may be to England to do that which may make the Lords and People of Ireland think that they are not Well Used and may drive them into Discontent The Laws and Liberties of England were granted above five hundred years ago to the People of Ireland upon their Submissions to the
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
it but with all possible Gratitude Acknowledge the Mighty Benefits Ireland has often receiv'd from England in helping to suppress the Rebellions of this Counâ—…ry To England's Charitable Assistance our Lives and Fortunes are owing But with all humble Submission I desire it may be considered whether England did not at â—…he same time propose the Prevention of their own Danger that would necessarily have attended our Ruine if so 't was in some measure their own Battels they fought when they fought for Ireland and a great part of their Expence must be reckon'd in their own Defence Another thing alledged against Ireland is this If a Foreign Nation as France or Spain for instance prove prejudicial to England in its Trade or any other way England if it be stronger redresses it self by Force of Arms or Denouncing War and why may not England if Ireland lies cross their Interests restrain Ireland and bind it by Laws and maintain these Laws by Force To this I answer First That it will hardly be instanced that any Nation ever Declared War with another meerly for over-topping them in some signal Advantage which otherwise or but for their Endeavours they might have reaped War only is Justifiable for Injustice done or Violence offer'd or Rights detain'd I cannot by the Law of Nations quarrel with a Man because he going before me in the Road finds a Piece of Gold which possibly if he had not taken it up I might have light upon and gotten 'T is true we often see Wars commenced on this Account under-hand and on Emulation in Trade and Riches but then this is never made the Open Pretence some other Colour it must receive or else it would not look fair which shews plainly that this Pretence of being Prejudicial or of reaping Advantages which otherwise you might partake of is not Iustifiable in it self But granting that it were a good Justification of a War with a Foreign Nation it will make nothing in the Case between England and Ireland for if it did why does it not operate in the same manner between England and Scotland and consequently in like manner draw after it England's binding Scotland by their Laws at Westminster We are all the same Kings Subjects the Children of one Common Parent and tho' we may have our Distinct Rights and Inheritances absolutely within our selves yet we ought not when these do chance a little to interfere to the prejudice of one or t'other side immediately to treat one another as Enemies fair Amicable Propositions should be proposed and when these are not hearkened to then 't is time enough to be at Enmity and use Force The last thing I shall take Notice of that some raise against us is That Ireland is to be look'd upon only as a Colony from England And therefore as the Roman Colonies were subject to and bound by the Laws made by the Senate at Rome so ought Ireland by those made by the Great Council at Westminster Of all the Objections raised against us I take this to be the most Extravagant it seems not to have the least Foundation or Colour from Reason or Record Does it not manifestly appear by the Constitution of Ireland that 't is a Compleat Kingdom within it self Do not the Kings of England bear the Stile of Ireland amongst the rest of their Kingdoms Is this Agreeable to the nature of a Colony Do they use the Title of Kings of Virginia New-England or Mary-Land Was not Ireland given by Henry the Second in a Parliament at Oxford to his Son Iohn and made thereby an Absolute Kingdom separate and wholly Independent on England till they both came United again in him after the Death of his Brother Richard without Issue Have not multitudes of Acts of Parliament both in England and Ireland declared Ireland a Compleat Kingdom Is not Ireland stiled in them All the Kingdom or Realm of Ireland Do these Names agree to a Colony Have we not a Parliament and Courts of Judicature Do these things agree with a Colony This on all hands involves so many Absurdities that I think it deserves nothing more of our Consideration These being the only remaining Arguments that are sometimes mention'd Against us I now proceed to offer what I humbly conceive Demonstrates the Justice of our Cause And herein I must beg the Reader 's Patience if now and then I am forced lightly to touch upon some Particulars foregoing I shall Endeavour all I can to avoid prolix Repetitions but my Subject requires that sometimes I just mention or refer to several Notes before delivered First therefore I say That Ireland should be Bound by Acts of Parliament made in England is against Reason and the Common Rights of all Mankind All Men are by Nature in a state of Equality in respect of Jurisdiction or Dominion This I take to be a Principle in it self so evident that it stands in need of little Proof 'T is not to be conceiv'd that Creatures of the same Species and Rank promiscuously born to all the same Advantages of Nature and the use of the same Faculties should be Subordinate and Subject one to another These to this or that of the same Kind On this Equality in Nature is founded that Right which all Men claim of being free from all Subjection to Positive Laws till by their own Consent they give up their Freedom by entring into Civil Societies for the common Benefit of all the Members thereof And on this Consent depends the Obligation of all Humane Laws insomuch that without it by the Unanimous Opinion of all Iurists no Sanctions are of any Force For this let us Appeal amongst many only to the Iudicious Mr. Hooker's Eccles. Polity Book 1. Sec. 10. Lond. Ed it 1676. Thus He. Howbeit Laws do not take their Constraining force from the Quality of such as Devise them but from that Power which doth give them the strength of Laws That which we spake before concerning the Power of Government must here be applied to the Power of making Laws whereby to Govern which Power God hath over All and by the Natural Law whereunto he hath made all subject the Lawful Power of making Laws to command whole Politick Societies of Men belongeth so properly unto the same entire Societies that for any Prince or Potentate of what kind soever upon Earth to exercise the same of himself and not either by express Commission immediately and personally receiv'd from God or else by Authority derived at the first from their Consent upon whose Persons they impose Laws it is no better than meer Tyranny Laws they are not therefore which Publick Approbation hath not made so But Approbation not only they Give who Personally declare their Assent by Voice Sign or Act but also when others do it in their Names by Right Originally at the least derived from them As in Parliaments Councils c. Again Sith Men Naturally have no full and perfect Power to command whole Politick
shall be Taken or Levy'd by Us or Our Heirs in Our Realm without the Good Will and Assent of Archbishops Bishops Earls Barons Knights Burgesses and other Freemen of the Land The like Liberties are specially Confirm'd to the Clergy the 14th of Edward the 3d. And were these Statutes and all other Statutes and Acts of the Parliament of England Ratified Confirmed and Adjudged by several Parliaments of Ireland to be of Force within this Realm And shall the People of Ireland receive no Benefit by those Acts Are those Statutes of Force in England only And can they add no Immunity or Priviledge to the Kingdom of Ireland when they are received there Can the King and Parliament make Acts in England to Bind his Subjects of Ireland without their Consent And can he make no Acts in Ireland with their Consent whereby they may receive any Priviledge or Immunity This were to make the Parliaments of Ireland wholly Illusory and of no Effect If this be Reasonable Doctrine To what end was Poyning's Law in Ireland that makes all the Statutes of England before that in Force in this Kingdom This might as well have been done and again undone when they please by a single Act of the English Parliament But let us not make thus light of Constitutions of Kingdoms 't is Dangerous to those who do it 't is Grievous to those that suffer it Moreover Had the King or his Council of England in the 10th year of Hen. VII in the least dreamt of this Doctrine to what end was all that strict Provision made by Poyning's Act Irish Stat. cap. 4. That no Act of Parliament should pass in Ireland before it was first Certified by the Chief Governour and Privy Council here under the Broad Seal of this Kingdom to the King and his Privy Council in England and received their Approbation and by them be remitted hither under the Broad Seal of England here to be pass'd into a Law The design of this Act seems to be the Prevention of any thing passing in the Parliament of Ireland Surreptitiously to the Prejudice of the King or the English Interest of Ireland But this was a needless Caution if the King and Parliament of England had Power at any time to revoke or annul any such Proceedings Upon this Act of Poynings many and various Acts have pass'd in Ireland relating to the Explanation Suspension or farther Corroboration thereof in divers Parliaments both in Henry the Eighth's Phil. Mary's and Q. Eliz. Reigns for which see the Irish Statutes All which shew that this Doctrine was hardly so much as Surmised in those Days however we come to have it raised in these Latter Times Fourthly 'T is against several Charters of Liberties Granted unto the Kingdom of Ireland This likewise is clearly made out by what foregoes I shall only add in this place That in the Patent-Roll of the 17 Rich. 2. m. 34. de Confirmatione There is a Confirmation of several Liberties and Immunities granted unto the Kingdom and People of Ireland by Edw. III. The Patent is somewhat long but so much as concerns this Particular I shall render verbatim as I have it Transcribed from the Roll by Sir William Doâ—…vile Attorny General in Ireland during the whole Reign of King Charles II. Rex omnibus c. Salutem Inspeximus Literas Patentes Domini Edwardi nuper Regis Angliae Avi nostri fact in haec verba Edwardus Dei Gra. Rex Angliae Franciae Dominus Hiberniae Archiepiscopis Episcopis Abbatibus Prioribus Ministris nostris tam Majoribus quam Minoribus quibuscunque aliis de Terra nostra Hiberniae fidelibus nostris ad quos Praesentes Literae pervenerint Salutem Quia c. Nos haec quae sequuntur Ordinanda Duximus firmiter observanda c. Imprimis vizt Volumus Praecipimus quod Sancta Hibernicana Ecclesia suas Libertates Liberas Consuetudines illesas habeat eis Libere gaudeat Utatur Item volumus praecipimus quod nostra ipsius Terrae Negotia presertim Majora Ardua in Consiliis per Peritos Consiliaros nostros ac Praelatos Magnates quosdam de Discretioribus Probioribus Hominibus de partibus vicinis ubi ipsa Concilia teneri Contigerit propter hoc evocandos in Parliamentis vero per ipsos Conciliaros nostros ac Praelatos Proceres aliosque de terra predicta prout Mos Exegit secundum Iusticiam Legem Consuetudinem Rationem tractentur deducantur fideliter timore favore odio aut praetio post positis discutiantur ac etiam terminentur c. In Cujus Rei Testimonium has Literas nostras fieri fecimus Patentes Teste meipso Apud Westminst 25 die Octob. Anno Regni nostris Angliae 31 Regni vero Franciae 18. Nos autem Ordinationes Voluntates Praecepta Praedicta ac omnia alia singula in Litteris praedictis Contenta Rata Habentes Grata Ea pro nobis Haeredibus nostris quantum in nobis est Acceptamus Approbamus Ratificamus Confirmamus prout Literae praedictae rationabiliter testanter In Cujus c. Test. Reg. apud Westminst 26 die Iunii Fifthly It is inconsistent with the Royalties and Praeeminence of a Separate and Distinct Kingdom That we are thus a Distinct Kingdom has been clearly made out before 'T is plain the Nobility of Ireland are an Order of Peers clearly Distinct from the Peerage of England the Priviledges of the one extend not into the other Kingdom a Lord of Ireland may be Arrested by his Body in England and so may a Lord of England in Ireland whilst their Persons remain Sacred in their respective Kingdoms A Voyage Royal may be made into Ireland as the Year-Book 11 Hen. 4. 17. fol. 7. and Lord Cook tells us and King Iohn in the 12th year of his Reign of England made a Voyage Royal into Ireland and all his Tenants in Chief which did not attend him in that Voyage did pay him Escuage at the Rate of Two Marks for every Knights Fee which was imposed super Praelatis Baronibus pro Passagio Regis in Hibernia as appears by the Pipe-Roll Scutag 12 Iohannis Regis in Scaccario Angl. Which shews that we are a Compleat Kingdom within our selves and not little better than a Province as some are so Extravagant as to Assert none of the Properties of a Roman Province agreeing in the least with our Constitution 'T is Resolved in Sir Richard Pembrough's Cafe in the 44th of Edw. III. That Sir Richard might lawfully refuse the King to serve him as his Deputy in Ireland and that the King could not Compel him thereto for that were to Banish him into another Kingdom which is against Magna Charta Chap. 29. Nay even tho Sir Richard had great Tenures from the King pro servitio Impenso Impendendo for that was said must be understood within the Realm of England Cooks 2d Inst.