Grace The Fifth settles The Marshal's Fee in Ireland Perhaps you will say these Officers take more than their Fees therefore the Statute is no Act of Parliament Very probable they do that is a general Distemper where Offices have Fees annexed to them and yet it may be an Act of Parliament still The Sixth Chapter its Title is In what Cases the Justices of Ireland may grant Pardon of Felony and where not The Title of the Seventh Chapter is By what Seal Writs in Ireland shall be Sealed The Eighth and last is Adjournment of Assizes in Ireland Are these Parts of the Statute observed in Ireland or no I ask you this because if any one part is received the whole is received Obedience given to any part of this Law acknowledges the Jurisdiction of the Law-makers and you insist only on the First Chapter as if the rest were no part of the Law That 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 I have already given you my Definition what an Act of Parliament is and if this be no more than an Order of the King and his Privy-Council I must be of your Mind Let us therefore enquire farther into this matter you say it appears to be no otherwise as well from the Preamble of the said Ordinance as from the Observation likewise I assure you if this Proof hath not more weight in it than the other I shall think it an Act of Parliament still Let us therefore see what the Preamble is which I find to be this Edward by the Grace of God King of England Lord of Ireland Duke of Aquitain to all those who shall see or hear these Letters doth send Salutation Know you That for the Amendment of the Government of our Realm of Ireland and for the Peace and Tranquillity of our People of the same Land at Nottingham the Octaves of St. Martin in the Seventeenth Year of our Reign by the assent of our Council there being the points hereafter mentioned be made and agreed upon to the intent that they may be firmly observed in the same Realm Where please to note that the Words are not by assent of our Privy-Council but of our Council by which name the Parliament of England is often called It would be endless to give and account of the different Stiles under which Acts of Parliament past in those Days sometimes in the Name of the King only sometimes of the King and Great Men sometimes of the King and his Council sometimes of the King and his Common Council and sometimes of neither as he who will be at the trouble to inspect our Statute Books may see I will give some Instances instead of many The great Charters are only in the King's Name Henry by the Grace of God King of England c. and so Edward by the Grace of God King of England c. The Statute in the Twentieth of Henry III. made at Merton hath this Preamble It was provided in the Court of our Sovereign Lord the King holden at Merton on Wednesday the morrow after the Feast of St. Vincent the Twentieth Year of the Reign of King Henry the Son of King John before William Archbishop of Canterbury and other his Bishops and Suffragans and before the greater part of the Earls and Barons of England there being assembled for the Coronation of the said King and Helianor the Queen about which they were all called where it was treated for the Commonwealth of the Realm upon the Articles under-written Thus it was provided and granted as well of the aforesaid Archbishop Bishops Earls and Barons as of the King himself and others By which it appears that in those Days when the Great Men who were the Barons or Freeholders of England were called together they made Laws and did not so much regard the Stile as that they were made by a general Consent The Statute 51 Henry 3. Sect. 1. begins thus The King to whom all these Presents shall come greeting We have seen certain Ordinances c. Stat. 5. of the same Year begins thus The King commandeth that all manner of Bailiffs Sheriffs c. Stat. 6. of the same Year begins thus If a Baker or a Brewer be Convict because he hath not c. The Preamble of the Statutes 52 Henry 3. made at Marlbridge 18. November 1267. runs thus In the Year of Grace One thousand two hundred sixty seven the Fifty-second Year of the Reign of King Henry Son of King John in the Utas of St. Martin the said King providing for the better Estate of this Realm of England and for the more speedy Ministration of Justice as belongeth to the Office of a King the more discreet Men of the Realm being called together as well of the Higher as of the Lower Estate It was provided agreed and ordained That whereas the Realm of England of late had been disquieted with manifold Troubles and Dissentions for Reformation whereof Statutes and Laws be right necessary whereby the Peace and Tranquility of the People must be observed wherein the King intending to devise convenient Remedy hath made these Acts Ordinances and Statutes underwritten which he willeth for ever to be observed firmly and inviolably of all his Subjects as well High as Low The Preamble to the Statutes made the Third of Edward I. runs thus These be the Acts of King Edward Son to King Henry made at Westminster at his Parliament General after his Coronation on the Monday of Easter Utas the Third Year of his Reign by his Council and by the Assent of Archbishops Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm being thither Summon'd because our Lord the King had great Zeal and Desire to redress the State of the Realm in such things as required Amendment for the Common Profit of Holy Church and of the Realm and because the State of Holy Church hath been evilly kept c. the King hath Ordained and Established these Acts under-written which he intendeth to be necessary and profitable to the whole Realm The Preamble to the Statute made the Fourth of Edward the First call'd the Statute of Bigamy runs thus In the Presence of certain Reverend Fathers Bishops of England and others of the King's Council the Constitutions under-written were recited and after heard and published before the King and his Council Forasmuch as all the King's Council as well Justices as others did agree that they should be put in Writing for a perpetual Memory and that they should be stedfastly observed The Preamble to the Statutes made at Gloucester 6 Edw. 1. runs thus For the great Mischiefs Damages and Disherisons that the People of the Realm of England have heretofore suffer'd through default of the Law that fail'd in divers Cases within the same Realm Our Sovereign Lord the King for the amendment of the Land c. hath provided and
established these Acts under-written willing and commanding that from henceforth they be firmly observed within this Realm The Preamble of the Statute of Westminster made the 13th of Edward I. runs thus Whereas of late our Lord the King in the Quinzim of St. John Baptist the Sixth Year of his Reign calling together the Prelates Earls Barons and his Council at Gloucester and considering that divers of this Realm c. ordain'd certain Statutes right necessary and profitable for his Realm whereby the People of England and Ireland being Subjects unto his Power have obtain'd more speedy Justice c. Our Lord the King in his Parliament after the Feast of Easter holden the 13th Year of his Reign at Westminster caused many Oppressions of the People and Defaults of the Laws for the accomplishment of the said Statutes of Gloucester to be rehearsed and thereupon did provide certain Acts as shall appear here following Here I cannot but observe That the King and Parliament of England thought Ireland a part of this Realm and subject to their Legislative Power and that it was concerned in the Statutes of Gloucester before-mentioned though not named therein Now whose Judgement shall we take the King and Parliament who lived in those Days or yours Four hundred Years afterwards I shall only mention one more which is in the 21 Edward 1. we find there a Statute made De iis qui ponendi sunt in Assisis and at the end thereof I find this Sect. 6. Rex c. quia ad communem utilitat◠〈◊〉 â—opuli nostri Regni de communi Concilio ejusdem Regni Statuerimus c. Now all these are accounted Statutes or Acts of Parliament and so called in the Books which shows that it is not the Name but the Modus of passing them which is the essential part of a Statute Law Besides if you please to peruse your own Quotations p. 48 and 49. you there acknowledge the Parliament to be called Generale Concilium Commune Concilium Great Council or Parliament I now come to your last Argument against this Statute p. 89. That King Edward I. held no Parliament in the 17th Year of his Reign This seems very doubtful even to your self for it follows If this were a Parliament this Ordinatio pro Statu Hiberniae is the only Act thereof that is extant and may not that be Henry III. granted the Magna Charta in the Ninth Year of his Reign you allow this to be a Statute or Act of Parliament and yet we do not find any other Law past that Year and but one single Act in his Fourteenth Year One in the Ninth of Edward I. and many other Instances may be made of this nature But after all I do not see how the stress of the Matter lies on this Foundation suppose this to be no Act of Parliament as you say what then shall we want Antient Precedents which name Ireland What think you of the Statute of Merchants which I have mentioned before 13 Edw. 1. this was made before that of the Seventeenth Year which you so much contend about and Ireland is expresly named in that Statute The Sum is this you say it is not a Statute I say it is and the Books call it so I have also given my Reasons why I think it so not that I think it material to our Debate but because if Statutes should be rejected for the Reasons you reject this I fear a great part of our old Acts of Parliament and even Magna Charta it self must be expunged out of the Statute Book I come now to your third Antient Precedent the Staple Act made in the Second of Henry VI. Cap. 4. This is expired so I find only the Title in the Statute Book which is this All Merchandizes of the Staple passing out of England Wales and Ireland shall be carried to Calice as long as the Staple is at Calice The Reason you give why this Law doth not bind Ireland is grounded on the Opinion of the Judges of England whereof you give this account p. 90. That by the Year Book of the Second of Richard III. it doth appear that the Merchants of Waterford having Ship'd off some Wool and consign'd it to Sluce in Flanders the Ship by stress of Weather put into Calice and Sir Thomas Thwaits Treasurer there seized the said Wool as forfeited whereupon a Suit was commenced between the said Merchants and him which was brought before all the Judges of England into the Exchequer-Chamber where the Questions were two one of which was Whither this Staple Act binds Ireland I have Abbreviated what you Write but I think I have done it fairly to which the Judges gave this Answer p. 91. Quod terra Hibernia inter se habent Parliament ' omni modo Cur prout in Angl. per Idem Parliament ' faciunt Leges mutant Leges non obligantur per Statuta in Anglia quia non hic habent Milites Parliamenti c. But in p. 92. you confess from the Year Books of 1 Henry 7. That when the aforesaid Case came a second time under the Consideration of the Judges in the Exchequer-Chamber we find it Reported thus Hussy the Chief Justice said That the Statutes made in England shall Bind those of Ireland which was not much gainsaid by the other Judges notwithstanding that some of them were of a contrary Opinion the last Term in his Absence What a strange Argument is this The Judges say you gave their Opinion who were those Judges You name only Hussy and he was against it But you say all the Judges of England in the former Term it could not be all because Hussy was not there and afterwards he gave his Opinion quite contrary And as you confess p. 92. all the Judges submitted to it so that here is the Judges Opinion at one time against their Opinion at another and will you bring this to overthrow the Authority of the Legislative Power of England But suppose Hussy and the rest of the Judges had agreed with the first Opinion what would you draw from this Have the Judges Power to question the Parliament in the Exercise of their Legislative Authority I know they are often advised with in the making of an Act but when it is once past I presume their business is to give their Judgments according to it or to Explain it where the Sence is doubtful but not to go against the express Words of an Act much less to question the Parliaments Power to make it Your second Argument against this Statute's binding Ireland is a Note in a Book made by Brook in Abridging this Case That Ireland is a Kingdom of it self and hath Parliaments of its own p. 92. Certainly you have very light Thoughts of Parliaments if you think that Notes in Books should abridge their Power The third is a Comment of your own on the whole p. 93. wherein you draw a Comparison of Ireland with Scotland and conclude That
Civil and Ecclesiastical State were setled there Regiae sublimatis authoritate Solely by the King's Authority and their own good Wills as the Irish Statute 11 Eliz. Cap. 1. expresses it What the Irish Statutes express I think hath no great Weight in this Debate the Question is by what Power the People of Ireland for so I will now call them threw off that Subjection they once owed to the Legislative Power of England If they think their bare Denial is enough to warrant them free from such a Subjection the People of England may expect the like on the same Argument if because they are not present at our Elections I will answer that in the following Discourse We proceed now to pag. 39. To see â—â— what farther Degrees the Government of Ireland grew up conformable to that of England which are your own Words you say that about the twenty third year of Henry II. which was within five years after his return from Ireland he created his younger Son John King of Ireland at a Parliament held at Oxford and from this you would infer Page 40. That by this Donation of the Kingdom of Ireland to King John Ireland was most eminently set apart again as a separate and distinct Kingdom by it self from the Kingdom of England but you do not set forth that Grant and our Statute-Books are not so old this had been necessary for many reasons you say Page 40. That by this Donation King John made divers Grants and Chartes to his Subjects of Ireland does this alone shew a Regal Authority and might it not have been done by a Lord-Deputy still subject to the Crown of England Pray let me ask you was he at his return to England which you say was a little after his first going over received here by his Father as a Brother-King and did he take Precedence of his elder Brother Richard 'T is much this young King had not punished his Subjects of Ireland for being angry at his deriding their long Beards at which you say they took such Offence that they departed in much Discontent I say 't is much he had not punished their Undutifulness but rather chose to come away in a Pet and thereby to abdicate his new Kingdom for you do not shew that he left the Administration of the Government with any one else All that can be said in his Defence is that he was young about Twelve Years old pag. 39 and perhaps the obstinate Humour which the Barons of England afterwards found in him might grow up with him and become an Infirmity of Age and during King John's being in England did the Kingdom of Ireland govern its self For if his Father King Henry the Second sent over any other to succeed him all your Argument is lost But after all I find his granting Charters is not of such moment as to prove him a King for this he did to the City of Bristol whilst he was Earl of Moreton which I believe was long after the time you mention and I find by the exemplification of that Charter that his Son King Henry the Third in his Inspeximus confirms it as granted by his Father King John when he was Earl of Moreton without mentioning that he was then also King of Ireland and Princes do not use to abate any thing of their Titles especially when they are of so great Importance as this No body doth believe that King John whilst Earl of Moreton had such a Royal Authority in Bristol as to discharge it from an obediential Subjection to the Legislative Power of England The Statute Primo G. M. Cap. 9. ss 2. saith Ireland is annexed and united to the Imperial Crown of England as well by the Laws of this Kingdom as those of Ireland and I am sure there is a great deal of difference between being part of the Imperial Crown of England as Wales is and a separate Kingdom as Scotland is I find likewise that Henry the Third never wrote himself more than Lord of Ireland and 't is strange if Ireland was established a separate Kingdom in John Earl of Moreton and his Heirs that the Title had not been continued in his Son and how comes it to pass that we have ever since been at the Charge of supporting that Kingdom with our Treasure without keeping a separate Account of our Expences laid out on it which doubtless we should have done had we thought it a separate Kingdom But to proceed on searching Sir Richard Baker's Chronicle I cannot find that he takes any Notice of King Henry IId's sending over his Son John about the Twenty Third Year of his Reign as you say Page 39. which 't is much he should omit seeing it was on so memorable an Occasion as his being made King of a separate Kingdom by his Father in a Parliament at Oxford but he saith that in the Thirty First Year of his Reign he sent his Son John over to Ireland to be Governour there and afterwards in the Reign of Richard I. Son to Henry II. and Brother to this John he speaking of the great Kindnesses shewed by the said King Richard I. to his Brother John hath these Words To whom he made appear how much the Bounty of a Brother was better than the Hardnesses of a Father and afterwards he names the several Earldoms which he conferred on him viz. Cornwall Dorset Somerset Nottingham Darby and Lancaster then treating of Affairs in England during the King's Absence on his Voyage to the Holy Land saith he left William Longshamp Bishop of Ely in chief Place of Authority at which his Brother was disgusted whom he calls there Duke John and in another Place he says that the King after his Return from the Holy Land took from him all the great Possessions he had given him and afterwards the said John submitted himself to the King his Brother Now does this agree with the Honour and Dignity of a King who had a separate Kingdom or were the Grants of those several Earldoms from his Brother which you see were liable to be taken away again at the King's Pleasure to be accounted a greater Largess than the Bounty of his Father if he had made him King of a separate Kingdom and setled it in Parliament as you affirm Besides if any such thing was done by Henry II. in the Twenty Third Year of his Reign it appears if Baker be in the right that that Grant was recalled for he saith plainly that he sent him over in his One and Thirtieth Year to be Governor of Ireland How indeed saith to be Lord of Ireland but neither of them mention any thing of what was done in the Parliament at Oxford Well suppose it to be Dominus Hiberniae on which Word you seem to build so much pag. 40 41. Is this Title any thing greater than Lord Lieutenant or Lord Justice which hath for ought I can perceive been used ever since Does a Title granted in a Patent from the King
Item We Will and Grant that no Licence or Priviledge to make Passage by English-men Irish-men or Welch-men of Wools c. out of the same Realm and Lands c. Cap. 10. Sect. 2. We Will and Establish that one Weight one Measure and one Yard be through all the Land c. Here Ireland is comprehended under these words throughout all the Land which I suppose will without Objection be admitted to be the Kingdom of England if Ireland is not comprehended under those general Words then Wales is not and then one Weight and Measure was appointed for England and another permitted to be in Wales but if Wales is comprehended under them then Ireland is also And this you may know by considering what Weights and Measures are settled in Ireland and when Cap. 11. Item We have Ordained and Established That all Merchants c. that do bring Wines c. to the Staples Cities c. within our said Realm and Lands Cap. 12. Item no Merchant c. shall carry out of our Realm of England Wools Leather c. Here Ireland is again comprehended under the general Words our Realm of England or else Wales is not and the purport of the Act shows that for can it be thought that the People of Wales and Ireland had Liberty to export Wools Leather c. into Foreign Parts when this was denied to the People of England Cap. 13. Item We Will and Grant That if any Merchant Privy or Stranger be Robbed of his Goods upon the Sea and the Goods so Robbed come into any Parts within our Realm or Lands Cap. 14. Item We have Ordained That all Merchants Privy or Strangers may safely carry and bring within our said Realm and Lands Plate of Silver c. and in the next Sect. Provided always that no Money have common course within our said Realm and Lands but the Money of Gold and Silver of our Coin So in Cap. 17. the Words Realm and Lands are thrice expressed as comprehending England Wales and Ireland By all which it appears to me That in those Days there was no thoughts of Ireland's being a separate Kingdom or making Laws for themselves any other than By-Laws But they were supposed to be part of the Kingdom of England and under the Jurisdiction of the Legislative Power thereof and yet this was long after the pretended Grant of Henry II. to his Son John to be King of Ireland as a separate Kingdom which does confirm me in what I have said before that what is now call'd the Parliament of Ireland was formerly no more than a Summoning the Great Men of the Kingdom together and commanding them to obey the Laws made in England as you have it in the Writ sent over by King Henry the Third to Richard du Burgh mentioned before which is transcribed by you P. 53. Coram eis publice legi faciatis c. The Parliament of England in those days was very careful of their Power and did not easily part with their Jurisdiction they presently put in their Claim so soon as the Kings of England got any footing either by Conquest or Submission In the Statutes made at Westminster 27 September the 11th of Edward III. Anno 1337. I find Laws made to bind Scotland cap. 1 2 4. are repealed so I cannot see their Contents But cap. 3. runs thus Item It is accorded and established That no Merchant c. shall bring c. into the said Lands of England Ireland Wales and Scotland within the King's Power And cap. 5. runs thus Item it is accorded That all the Clothworkers of strange Lands c. which will come into England Ireland Wales or Scotland I do not find any Acts of this nature made either before that time or after which put me upon perusing the Histories and Chronicles of England about that time How saith That Anno Regni 5 Ed. 3. 1331. Edward Baliol who was Son to John Baliol sometime King of Scotland was by the Assistance of the said King Edward crowned King of Scots but afterward he resigned it to the said King Edward of England and remained under his Protection many years after Baker saith That to hold a good Correspondence with the King of England hereafter he doth him homage for his Realm of Scotland And no doubt had Scotland still continued so the guilded flourishes of a separate Kingdom would not have tempted the Parliament of England to have parted with their Authority of making Laws to govern it and can it be thought they should so easily let Ireland slip it doth not appear so by any Act of their own and for the Acts of others they can be no Precedents against them But to proceed There are yet other Reasons why Ireland should be more bound by the Statute-Laws of England then Scotland Ireland hath been always accounted so much a part of the Imperial Crown of this Kingdom that on the late Revolution when the Crown of England was settled on the then Prince and Princess of Orange Stat. primo Guil. Mar. cap. 2. They are declared King and Queen of Ireland as well as England and by that Recognition they had been so though the Parliament of Ireland had opposed it whereas the Case was not the same with Scotland The Rights and Priviledges of the People of Ireland were also settled by the same Statute equal to those of the People of England But the Rights and Priviledges of the People of Scotland were not Nor was this Recognition made in their Names they took their own time to do it and to settle the Rights and Priviledges of their own Kingdom as they pleased being a separate Kingdom without dependance on the Kingdom of England I wonder you hang so much in this Paragraph on Ireland's being a separate Kingdom in the Person of King John no Man of Sence who had examined that matter would make any dependance thereon and such I take you to be therefore it looks as if you had a mind to betray and give up the Cause did I not think you a Gentleman of greater sincerity you had certainly found a better Argument in your original Contract could you have made it out Page 85. You proceed to take into consideration such English Statutes as particularly name Ireland and these you divide into Ancient Precedents and Modern Instances and conclude That if the former do not make against you the latter are only Usurpations made upon you I think this fully answer'd before But I will take your own way and follow the Thred of your own Arguments though I think you spin it too long The Ancient Precedents of English Statutes designing to bind Ireland you say are first Statutum Hiberniae 14 Hen. 3. Secondly Ordinatio pro Statu Hiberniae 17 Edw. 1. Thirdly An Act concerning Staples 2 Hen. 6. pag. 85 86. And are these all What think you of the Statute of Merchants made at Westminster 13 Edw. 1. Anno 1258 wherein are these words Sect.
If not let me ask you Why should the Laws made by the Parliament of England have more force in Ireland than those made in Scotland There can be no other reason given for it but this That Ireland is subject to the Jurisdiction of the Parliament of England but is not subject to the Jurisdiction of the Parliament of Scotland Had you told us what Acts of Parliament these were we might have judged whether they were Declaratory or no but since you have omitted that I think the Answer I have given sufficient P. 77. You proceed to consider the Objections and Difficulties that are moved against this your Proposition that the English Laws become passable in Ireland only by the Consent of the People and Parliament thereof these you say arise from Precedents and Passages in your own Law Books that seem to prove the contrary which shews that as Cocksure as you are in this Particular it hath been disputed and doubted by your own Lawyers and in your own Parliaments too if I take the matter right The first you mention is in p. 78. you say That in the Irish Act concerning Rape passed Anno 8 Edvardi 4. 't is expressed that a doubt was conceived whether the English Statute of the Sixth of Richard the Second Chap. 6. ought to be of Force in Ireland without the Confirmation thereof in the Parliament of Ireland all the use I shall make of this is that your Parliaments then doubted this thing Your second Objection is p. 80. That though 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 his Majesty's Dominions or by particularly naming of Ireland are and shall be of force in this Kingdom These are your Words and This you say was a Doctrine first broached directly by William Hussy Lord Chief Justice of the King's-Bench in England in the First Year of Henry VIIth and of late revived by the Lord Chief Justice Cooke Pray Sir do you speak in earnest Was this Doctrine never broach'd before the Reign of Henry the VIIth What think you of the several Acts of Parliament made in the several Kings Reigns since Henry the Third down to Henry the Seventh in some whereof they mention Ireland in others they do not do you not believe those several Parliaments thought there was some difference in those Acts But when the Lord Chief Justice Hussy and Sir Edward Cook after him both Persons of great Station in the Law broach'd this Opinion what was done in the Parliament of Ireland thereon Did they ever by any publick Act declare these Oracles of the Law to be in the wrong I do not find by any thing you say that they did and do believe you would not have let such an Argument have lain asleep if you could have brought it therefore I conclude they did not but on the contrary it doth appear that all Laws of that Nature have ever since been observed and obeyed in Ireland and many of them of much later Dates and now I wonder you should come to dispute it by your private Opinion One hundred and fifty Years after the Death of Hussy when in all this time the Body of Ireland hath not undertaken it But I will examine your Arguments against this The first is That the King and his Privy-Council in England have often transmitted into Ireland to be passed into Laws there English Statutes wherein the general Words Of all His Majesty's Dominions or Subjects were comprehended from whence you conclude that they were of a contrary Opinion p. 81 82. Suppose this to be so the most you can conclude from it is that it obliquely shews the King and Privy-Councils Opinion and doth not the Parliaments passing such Acts as well shew the Opinion of the Legislative Power of England But what if the King and Privy-Council of England do as you say actum agere shall this make the Parliaments Intentions in making those Laws void No certainly no more than the Parliament of Ireland's confirming them shall prove they were not binding before for whither the Parliament of Ireland accept or refuse those Laws that are made by the Parliament of England with intention to bind Ireland they are never the more or less binding there P. 84. You proceed and tell us You see no more reason for binding Ireland by the English Laws under the general Words Of all His Majesty's Dominions or Subjects than there is for binding Scotland by the same Truly Sir I believe you else I should wonder to have seen you taking so much Pains But because I am of a different Opinion let me consider this Matter with you Ireland is by several Laws made both in this Kingdom and in that annexed and joined to the Imperial Crown of England but Scotland tho' it has been often sought for never yet obtained that favour Ireland you confess submitted it self to King Henry the Second and thereby became at first annexed to the Crown of England one of the Terms of which Submission was That it should be govern'd by the English Laws whereas Scotland was united to it in the Person of King James and since that by its voluntary Recognition of King William and Queen Mary still keeping its own Laws and leaving a possibility of its becoming a separate Kingdom again which Ireland never can be The People of Ireland I mean the English and Britains which you say p. 20. are a Thousand for One of the antient Irish were once subject to the Legislative Power of England which the People of Scotland never were but always a separate Kingdom The People in Ireland have all the Privileges of English Men and thereby under the easiest Government in Europe which the People in Scotland have not whilst they remain in that Kingdom The People in Ireland are governed by the Common Laws of England one part whereof is That thore Laws may be inlarged abridged or altered by the Parliament of England but the People in Scotland are and ever were governed by their own Laws Ireland is mentioned in several of our Statutes as part of the Kingdom of England and joined with Wales as a dependant thereon which Scotland never was thought to be viz. 27 Edward III. Sess 2. in the Preamble of that Statute are these Words Sect. 2. For the Damage which hath notoriously come as well to us and the Great Men as to the People of our Realm of England and of our Lands of Wales and Ireland Cap. 1. it goes on First that the Staple of Wools c. within our said Realm and Lands Cap. 2. Item to replenish the said Realm and Lands with Money and Plate c. Cap. 3. Item we Will and Grant that all Merchants c. through our Realm and Lands Cap. 4. Item for as much as no Staple can be profitable for us and for our Realm and Lands Cap. 7.
35. This Ordinance and Act the King willeth to be observed from henceforth through his Realm of England and Ireland What think you of the Statutes made at Westminster 11 Edw. 3. Anno 1337. which I recited before where cap. 3. all Foreign Clothes are prohibited to be brought into Ireland and cap. 5. Clothworkers are invited to settle in Ireland and are encouraged thereto by Franchises promised them What think you of the Statute of the Staple mentioned before made 27 Edw. 3. Anno 1353 In the Preamble of which Statute Ireland is mentioned and cap. 1. bears this Title Where the Staple for England Wales and Ireland shall be kept whether Merchandizes of the Staple shall be carried and what Customs shall be paid for them Which Chapter shews That the Parliament of England had Power of raising Money by laying Customs on Commodities in Ireland At this Sessions were made Twenty eight Acts or Chapters call them which you will and all point at Ireland But I cannot pass by this last Statute of 27 Edw. 3. without making observation on its Preamble which I here give you verbatim Edward by the Grace of God c. To our Sheriffs Mayors Bayliffs Ministers and other our faithful People to whom these present Letters shall come greeting Whereas good deliberation had with the Prelates Dukes Earls Barons and great Men of the Counties that is to say of every County one for all the County and of the Commons of our Cities and Boroughs of our Realm of England summoned to our great Council holden at Westminster the Monday next after the Feast of St. Matthew the Apostle the 27th Year of our Reign of England and of France the 14th For the damage that hath notoriously come as well to us and to our great Men as to our People of our Realm of England and of our Lands of Wales and Ireland because that the Staple of Woolls Leather and Wool-fells of our said Realm and Land have been holden out of our said Realm and Lands and also for the great Profits which should come to the said Realm and Lands if the Staple were holden within the same and not elsewhere to the Honour of God and in Relief of our Realm and Lands aforesaid and to eschew the Perils that might happen of the contrary in time to come by the Counsel and common Consent of the said Prelates Dukes Earls and Barons Knights and Commons aforesaid we have ordained and established the things under written Here the King is called King of England and France without mentioning Ireland but we find the Laws made in that Sessions to be binding to his Lands of Wales and Ireland as I have before observed The King also takes notice of the Summons sent to the Prelates Dukes Earls Barons and great Men of the Counties and Commons of Cities and Boroughs of his Realm of England summoned to his great Councel holden at Westminster c. without mentioning any thing of Ireland though it was bound by the Laws made in that Sessions By all which it doth appear to me That Ireland was lookt on in those days as an Appendix to the Kingdom of England all one as Wales and yet the Laws of that Sessions were received in Ireland Why did not the Parliament of Ireland if there was then any make an early Protestation against this irregular Proceeding and condemn it as an Encroachment on their Priviledges which had been much better then for you to undertake this Task three hundred and fifty years after But to proceed What think you of the Statute made at Westminster 34 Edw. 3. Anno 1360 the Preamble is These be the things which our Lord the King the Prelates Lords and Commons have ordained in this present Parliament holden at Westminster the Sunday next before the Feast of the Conversion of St. Paul to be holden and openly published through the Realm and yet the Title of cap. 17. is Merchandize may be carried into and brought out of Ireland By which it appears That the Parliament of England made Laws to regulate the Trade of Ireland in those early days and that the Bill relating to the Woollen Manufactures now depending before the present Parliament is not a Modern Instance of that Power Cap. 18. of that Sessions hath this Title They which have Lands in Ireland may carry their Goods thither and bring them again From both which I make this observation That the Preamble saith These are to be holden and published openly thorough the Realm and the 17th and 18th Chapters shew that Ireland is part of that Realm In the 4th of Henry 5. cap. 6. an Act was made but is now Ob so I find nothing but its Title in the Statute Book which is this If any Archbishop Bishop c. of Ireland Rebel to the King shall make collation of a Benifice to any Irish-man or bring any Irish-man to the Parliament to discover the â—ounsel of English-men to Rebels his Temporalities shall be seized until he hath made Fine to the King By which it doth appear That the Parliament of England took notice there was a Parliament in Ireland and made Laws to bind that Parliament All these Statutes bound Ireland and doubtless many more there are had I time to look after them but I mention these because they come within the compass of your old Precedents being before the Second of Henry 6. But before I speak to your old Precedents give me leave to mention one Statute more viz. 1 Hen. 6. cap. 3. which though I do not produce as a Precedent binding Ireland yet it will serve to show what opinion the Parliament of England had of Ireland in those days the words are these Forasmuch as divers Manslaughters Murders c. and divers other Offences now late have been done in divers Counties of the Realm of England by People born in the County of Ireland repairing to the Town of Oxford c. I will make no Paraphrase on them they are easie to be understood by any English Reader and this is a Modern Statute in respect to the time of Henry II. when you say Ireland was made a separate Kingdom and settled by him on his Son John in a Parliament at Oxon whereas this Parliament calls it a County Well then let us see what you say against these Ancient Precedents you have produced before we come to the Modern Instances as you call them These Statutes you say pag. 86. especially the two first meaning Statutum Hiberniae and Ordinatio pro Statu Hiberniae being made for Ireland as their titles import have given occasion to think that the Parliament of England have right to make Laws for Ireland without the consent of their chosen Representatives Surely every Body I think is of that Judgment that hath lookt into the matter no you dissent from it and for this gives several Reasons The first is pag. 86 87 88. which I am obliged here to transcribe 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 dispatched four Knights to the King in England to bring a Certificate from thence of the practice used there and what was the Common Law of England in that Case whereupon Henry III. in this his Certificate or Rescript which is called Statutum Hiberniae merely informs the Justice what the Law and Custom was in England viz. That the Sisters ought to hold of the chief Lord and not of the eldest Sister And the close of it commands That the foresaid Customs that be used within our Realm of England in this case be proclaimed throughout our Dominion of Ireland and be there observed Teste meipso apud Westminst 9 Febr. An. Reg. 14. From whence you infer That this Statute was no more then a Certificate of what the Common Law of England was in that case which Ireland by the original Compact was to be governed by And do you really speak your Thoughts herein Was it ever customary for the Judges to send to the King to expound Law to them and for the King by Certificates to direct them what they should give for Law I thought their Business had been to declare the Law impartially between the King and his Subjects and that if they doubted in any Points of the Common Law their Custom had been to advise one with another or with some other Learned Councel in the Law Is it to be thought the King knew Law better than his Judges I would not have you insist on this for the Honour of the Long Robe in Ireland But Sir there is more in this then perhaps at first you think for either this is a Statute Law and our Books call it so therefore in your favour I will believe it so or else the King had in those days an Absolute Power and Authority to impose on Ireland what Laws he thought fit For in the close of that Statute 't is said Therefore we command you That you cause the foresaid Customs that be used within our Realm of England in this case to be proclaimed throughout our Dominion of Ireland and to be straitly kept and observed If all our Acts of Parliament which declare the Common Law of England shall be called Certificates pray what will become of Magna Charta Charta Foresta and most of our old Laws which were generally Declarations of what was the Common Law of this Kingdom and what were the Rights and Liberties of the Subjects before the making of them I come now to your second old Precedent the Statute called Ordinatio pro Statu Hiberniae made at Nottingham 17 Edw. 1. Anno 1288. This you say pag. 88. was certainly never received or of force in Ireland And you further say That this is manifest from the very first Article of that Ordinance which prohibits the Justice of Ireland or others the King's Officers there to purchase Lands in that Kingdom or within their respective Bailiwicks without the King's Licence on pain of Forfeitures But that this has ever been otherwise and that the Lords Justices and other Officers here have purchased Lands in Ireland at their own Will and Pleasure needs no proof to those who have the least knowledge of this Country Is this a fair Argument against the Validity of a Statute That it hath not had due obedience rendred to it If this be Law I am afraid many of our late good Statutes have run the same fate but I never knew till now That the Peoples Obedience was an Essential part in a Statute I thought the Consent of King Lords and Commons given to it in Parliament had been enough But we will not let this Matter fall without further examining into your Argument That Statute consists of eight Chapters let us see which of those Chapters have not been received and obeyed you only mention the first viz. That the Lords Justices of Ireland and other Officers have purchased Lands in Ireland at their own Will and Pleasure as you recite it pag. 88. But the words in the Statute are these That the Justices of Ireland nor any other Officers of ours of the same Realm so long as they are in our Service there shall purchase any Land or Tenement within the List or bound of their Bailiwicks without our special Licence Which makes a great Alteration in the Matter for they might purchase Lands or Tenements both before and after they were in their Offices But we will take the Words as you give them how does it appear that this Law was not observed You say p. 89. It does not appear by any Inquisition Office or Record that any one ever forfeited on that account It may be so perhaps it was never broke and then there was no need of an Inquisition or the King might grant Licence as that Law does direct to his Justices and other Officers to purchase Lands during their being in their Offices or they might purchase them without the List or Bounds of their Bailiwicks and then the Terms of the Law were complied with But I am apt to think you will carry this farther and say That in later Years the Justices of Ireland and other the King's Officers have not taken notice of this Law perhaps so and what would you draw from this How many old Laws have we in England that are obsolete and disregarded by Time which though they fitted the Circumstances of the Times they were made in yet are not proper for our Days Witness the Statutes against going Arm'd the Statutes about Bows and Arrows and many others which were and still remain Statutes till repealed though perhaps 't will be thought hard to put them in Execution without giving publick Notice thereof sometime before to the Subject But after all how do you know but that these Officers you last mentioned may have Licences from the King to purchase Lands though I think it not at all to the matter whether they have or no. But to proceed That Statute as I said before consists of Eight Chapters you have taken notice only of the First therefore we will come to the next Chapter of that Statute The Title is In what Case only Purveyance may be made in Ireland Is that observed in Ireland or do the Justices or other the King's Officers by colour of their Offices take Victuals or any other things of any Person against his Will contrary to that Chapter The Third Chapter is about Transporting Merchandizes out of Ireland Do the Justices or any of the King's Ministers by colour of their Offices Arrest the Ships or other Goods of the People of Ireland The Fourth settles The Fees of a Bill of
by the same Argumentation Scotland it self may be bound by English Laws I confess I would gladly pay a great Respect to your Person but I would not willingly be drawn aside by your Opinion which I should be if I were thereby perswaded that the Parliament of England have no more Power to make Laws to bind Ireland than they have to bind Scotland since it does appear that they have done it from the first time of our Statutes being extant and long before it can be rationally concluded there was a Parliament there And yet I do not think they can make Laws to bind Scotland because they themselves never pretended to any such Power save in the Case aforementioned that ever I heard of England and Ireland are not two distinct Kingdoms as England and Scotland are Ireland is a Kingdom dependant on and annexed to the Imperial Crown of England and the Parliament of Ireland is likewise subordinate to the Parliament of England therefore the Laws made by the latter will bind the former This I hope I have prov'd notwithstanding what you say That the contrary will be denied by no Man As to what you say in relation to France pag. 94. Whether on this way of reasoning the People of England had not been subject to the King of France had our Kings continued the Possession of that Country and there kept the Seat of the Monarchy I answer No for those two Kingdoms had not been united as England and Ireland are but as England and Scotland However you will find That it was provided against by a Statute made 14 Edw. 3. Anno 1340. All I find of it in Keeble is this not being printed at large By a Statute it was ordained That the Realm of England and the People thereof shall not be subject to the King or Kingdom of France But you say pag. 94. That the Statute Laws of England have not received your Assent and you argue thence That the People of England will consider whether they also are not the King's Subjects and may therefore by this way of reasoning be bound by Laws which the King may assign them without their assent c. I shall have occasion to speak to this hereafter so I shall for the present wave it here And now I find you have done with your three Ancient Precedents the last of which was in the Second of Henry VI. and I have cited to you several other Statutes made before that time which do undoubtedly bind Ireland being intended by the Parliament so to do which I suppose you never saw or would not cite because you had nothing to say against them I shall next follow you to your Modern Instances which you likewise call Modern Precedents pag. 98 99. And here you assert That before the Year 1641. there was no Statute made in England introductory of a new Law that interfered with the Right which the People of Ireland have to make Laws for themselves except only those which you have before-mentioned Is this really so What think you of those I have before cited I am very unwilling to swell this Answer but I find my self obliged to follow wherever you will lead even to 41. Well then besides them What think you of these several Statutes under-mentioned viz. 32 Hen. 8. cap. 24. Whereby the Knights of St. John of Jerusalem in Ireland were dissolved 1 Edw. 6. cap. 1. Whereby the Sacrament is directed to be administred in both Kinds unto the People in Ireland 1 Edw. 6. cap. 2. Entituled an Act for Election of Bishops wherein Ireland is named 1 Eliz. cap. 1. Whereby the Queen hath power given her to assign over to any Person power to exercise Ecclesiastical Authority in Ireland 8 Eliz. cap. 3. Against exporting of Sheep from Ireland I think all these Laws bound Ireland But what you mean by Introductory of a new Law or Interfering with the Right which the People of Ireland have to make Laws for themselves I shall not labour to understand these seem to be nice Quibbles All I proposed was That the Parliament of England have and always had power to bind Ireland by their Statutes which you have denied and I hope I have proved And now I am come with you to 41 where you end your Assertion and acknowledge That in that Year and since some Laws have been made in England to be of force in Ireland I take your own words p. 99. These Acts you say are of 17 Car. 1. you do not name the Chapters but they are 33 34 35 37. which being expired are not to be found in the Statute-Book any more save the Titles therefore I must apply my self to what you say of them p. 100. The Titles say you of these Acts we have in Pulton 's Collection of Statutes but with this remark That they are made of no force by the Acts of Settlemement and Explanation passed in King Charles the Second's time in the Kingdom of Ireland And having gained this Advantage against the Parliament of England you make use of it to the utmost and presently conclude That they plainly shew that the Parliament of Ireland may Repeal an Act passed in England in relation to the Affairs of Ireland Sure I cannot think so for if the Parliament of Ireland can Repeal any one Act made by the Parliament of England they may Repeal all they make which cannot be except they have a Jurisdiction above them For the Power which any one Body or Society of Men hath to Repeal Laws made by another Body or Society must proceed from a Superiority that Body or Society hath over the other whose Laws it doth Repeal So that then if what you say be true it follows That the Parliament of Ireland is Superiour to the Parliament of England and then we have brought our Hogs to a fair Market instead of the Parliament of England's making Laws to bind Ireland the Parliament of Ireland may make Laws to bind England and likewise Repeal those Laws they have already made You Gentlemen of Ireland are angry That we will not give you leave to carry away our Trade and therefore you now undertake to prove That your Parliament can Repeal the Laws our Parliament makes 'T is very pretty truly but I hope you will not put this your Power in Execution and Repeal our Act of Navigation or our Plantation Acts and particularly that Act wherein is the Clause against landing Tobacco in Ireland This I am fond of for a certain reason therefore I beg your favour for it We will part with our Woollen Bill provided you will spare us the Acts already made It will be a great loss to the Kingdom of England if you should Repeal the Acts against planting Tabacco in Ireland 't would very much prejudice our Settlements in Virginia a Trade which besides the great Revenues it brings to the Crown whereof you pay a part does likewise encourage our Navigation expends our Manufactures and employs our