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 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
under the three first Kings of Ireland of the Norman Race the Laws and Liberties of the People of England were granted to the People of Ireland And that neither of these three Kings Established those Laws in Ireland by any Power of the Parliament of England but by the free Consent Allowance and Acceptance of the People of Ireland Hen. II. first introduced the Laws of England into Ireland in a Publick Assembly of the Irish at Lismore and Allowed them the Freedom of Parliaments to be held in Ireland as they were held in England King John at the Request and by the Consent of the Irish did appoint the Laws of England to be of Force in Ireland and tho' he did not this till the Twelfth year of his Reign of England yet he did it not as King of England but as Lord of Ireland For the Crown of England came to him by Descent from his Brother Richard who had no Regal Power in Ireland and what his Brother had not could not descend to him Henry the Third in the first year of his Reign gave Ireland a Magna Charta and in the Twelfth year of his Reign did provide That all the Laws of England should be observ'd in Ireland and that the Charter granted to the Irish by his Father King Iohn under his Seal when he was in that Kingdom should be kept inviolably And from the Days of these Three Kings have England and Ireland been both Govern'd by the like Forms of Government under one and the same Supreme Head the King of England yet so as both Kingdoms remain'd Separate and Distinct in their several Jurisdictions under that One Head as are the Kingdoms of England and Scotland at this day without any Subordination of the One to the Other It were endless to mention all Records and Precedents that might be quoted for the Establishment of the Laws of England in Ireland I shall therefore enter no farther into that Matter but therein refer to Lord Chief Justice Cook Pryn Reyly c. If now we Enquire What were those Laws of England that became thus Established in Ireland Surely we must first reckon the Great Law of Parliaments which England so justly Challenges and all Mankind have a Right to By the Law of Parliament I mean that Law where by all Laws receive their Sanction The Free Debates and Consent of the People by Themselves or their Chosen Representatives That this was a main Branch of the English Law Established in this Kingdom and the very Foundation of our Future Legislature appears manifest from Parliaments being so early convok'd in Ireland as the fore-mention'd Precedents express Mr. Pryn acknowledges one in Hen. II's time pag. 259. against the 4th Instit. but makes a very false Conclusion that there appears no Footsteps of a Parliament afterwards till the third year of Edward the Second because the Acts of that Parliament are the first that are Printed in our Irish Statute-Book For so we may argue the Parliaments of England to be of later Date than pretended when we find the first Printed Acts in Keeble to be no older than the 9th of Hen. III. Whereas 't is most certain that Parliaments have been held in England some Ages before that After this Great Law of Parliaments we may reckon the Common Law of England whether it relates to Regulating and Setling of Property and Estates in Goods or Land or to the Iudiciary and Executive parts of the Law and the Ministers and Process thereof or to Criminal Cases These surely were all Establish'd in this Country by the three first Kings of Ireland of the Norman Race Let us now consider the state of the Statute Laws of England under these three Kings and their Predecessors For by the Irish Voluntary Submission to and Acceptance of the Laws and Government of England we must repute them to have submitted themselves to these likewise till a Regular Legislature was Establish'd amongst them in pursuance of that Submismission and Voluntary Acceptance And here we shall find that in those Times viz. from the Norman Conquest to Henry the Third's time inclusive the Statute-Laws of England were very few and slender 'T is true that before the 12th of Hen. III. we find amongst the English Historians frequent mention of the Laws of Edward the Confessor William the Conquerour Hen. I. Hen. II. King Iohn and Hen. III. All which are only Charters or several Grants of Liberties from the King which nevertheless had the force of Acts of Parliament and laid as great Obligations both upon Prince and People as Acts of Parliament do at this day Whereof we may read several Proofs in the Princes Case Cook 's 8th Report But these were only so many Confirmations of each other and all of them Sanctions of the Common Laws and Liberties of the People of England ab Antiquo Usitatae comprohatae per totam terram in quibus ipsi eorum Patres nati nutriti sunt as the words of the Manuscript Chronicle of Litchfield express it The Laws of Edward the Confessor held in so great Veneration in Antient Times per universum Regnum corroboratae confirmatae prius inventae Constitutae fuerunt Tempore Regis Edgari Avi sui Verum tamen post mortem ipsius Regis Edgari usque ad Coronationem Sancti Regis Edwardi which was 67 years praedictae Leges Sopitae sunt penitus intermissae Sed postquam Rex Edwardus in Regno sublimatus fuit Consilio Baronum Angliae Legem illam sopitam Excitavit Excitam Reparavit Reparatam Decoravit Decoratam Confirmavit confirmatae vocantur Lex Sancti Regis Edwardi non quod ipse primus eam ad invenisset sed quod Reparavit Restituitque as the said Litchfield Chronicle has it These Laws of Edward the Confessor were transcribed by Ingulphus Abbot of Croy land under William the Conqueror and are annexed to his History The Laws of William the Conqueror are but a Confirmation of the Laws of Edward the Confessor with some small alterations as the very Letter of those Laws themselves express it Hoc quoque praecipimus ut omnes habeant teneant Leges Edwardi Regis in omnibus Rebus adauctis his quas constituimus ad Utilitatem Anglorum The Laws of Henry I. which are in the Red Book of the Exchequer in the custody of the Kings Remembrancer in England are but a summary confirmation both of the Laws of Edward the Confessor and William the First as the Charter it self expresses it Lagam Regis Edwardi vobis Reddo cum illis emendationibus quibus Pater meus emendavit Consilio Baronum suorum The Laws of Henry II. called Constitutiones Clarendoniae and the Assize of Clarendon in the 2d part of Cooks Inst. p. 6. are all but confirmations and vindications of the King 's just Prerogative against the Usurpations of the Pope and
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
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
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
of as an Invasion we humbly conceive of that Legislative Right which our Parliament of Ireland claims within this Kingdom The next Act pass'd in the Parliament of England Binding Ireland is that for Abrogating the Oath of Supremacy in Ireland and Appointing other Oaths 3 and 4 William and Mary c. 2. To this the Parliament convened at Dublin Anno 1692. under Lord Sydney and that likewise Anno 1695. under Lord Capel paid an intire Obedience And by this 't is alledged we have given up our Right if any we had and have for ever acknowledged our Subordination to the Parliament of England But let us a little consider the force of this Argument I readily grant that this and the other fore-mentioned Acts in England since the Revolution when they were made were look'd upon highly in our Favour and for our Benefit and to them as such we have conform'd our Selves But then in all Justice and Equity our Submission herein is to be deem'd purely voluntary and not at all proceeding from the Right we conclude thereby in the Legislators If a Man who has no Iurisdiction over me command me to do a thing that is pleasing to me and I do it it will not thence follow that thereby he obtains an Authority over me and that ever hereafter I must Obey him of Duty If I voluntarily give my Money to a Man when I please and think it convenient for me this does not Authorize him at any time to command my Money from me when he pleases If it be said this allows Subjects to Obey only whilest 't is convenient for them I pray it may be considered whether any Men Obey longer unless they be forced to it and whether they will not free themselves from this Force as soon as they can 'T is impossible to hinder Men from desiring to free themselves from Uneasiness 't is a Principle of Nature and cannot be eradicated If Submitting to an Inconvenience be a less Evil than endeavouring to Throw it off Men will Submit But if the Inconvenience grow upon them and bâ—… greater than the hazard of getting rid of it Men will Offer at puting it by let the Statesman or Divine say what they can But I shall yet go a little further and venture to Assert That the Right of being subject Only to such Laws to which Men give their own Consent is so inherent to all Mankind and founded on such Immutable Laws of Nature and Reason that 't is not to be Alien'd or Given up by any Body of Men whatsoever For the End of all Government and Laws being the Publick Good of the Commonwealth in the Peace Tranquility and Ease of every Member therein whatsoever Act is contrary to this End is in it self void and of no effect And therefore for a Company of Men to say Let us Unite our selves into a Society and let us be absolutely Govern'd by such Laws as such a Legisâ—…ator without ever Consulting us shall devise for us 't is always to be understood Provided we find them for our Benefit For to say We will be Govern'd by those Laws whether they be Good or Hurtful to us is absurd in it self For to what End do Men joyn in Society but to avoid Hurt and the Inconveniencies of the State of Nature Moreover I desire it may be considered whether the General Application of the Chief part of the Irish Protestants that were at that time in London to the Parliament at Westminster for obtaining these Laws may not be taken for their Consent and on that Account and no other these Acts may acquire their Binding Force I know very well this cannot be look'd upon as a Regular and Formal Consent such as might be requisite at another more favourable Juncture But yet it may be taken talis qualis as far as their Circumstances at that time would allow till a more convenient Opportunity might present it self I am sure if some such Considerations as these may not plead for us we are of all his Majesties Subjects the most Unfortunate The Rights and Liberties of the Parliament of England have received the greatest Corroborations since his Majesties Accession to the Throne and so have the Rights of Scotland but the Rights of the People of Ireland on the other hand have received the greatest Weakening under his Reign by our Submission as 't is alledg'd to these Laws that have been made for us This certainly was not the Design of his Majesty's Glorious Expedition into these Kingdoms That we are told by Himself whom we cannot possibly mistrust was to Assert the Rights and Liberties of these Nations and we do humbly presume that his Majesty will be graciously pleased to permit us to Enjoy the Benefits thereof And thus I have done with the Fourth Article proposed As to the Fifth viz. The Opinions of the Learned in the Laws relating to this Matter 't is in a great measure dispatch'd by what I have offered on the Fourth Head I shall therefore be the more brief thereon And I think indeed the only Person of Note that remains to be considered by us is the Lord Chief Justice Cook a Name of great Veneration with the Gentlemen of the Long Robe and therefore to be treated with all Respect and Deference In his Seventh Report in Calvin's Case he is proving that Ireland is a Dominion Separate and Divided from England for this he quotes many Authorities out of the Year-Books and Reports and amongst others he has that which I have before mention'd pag. 91. 2 R. 3. f. 12. which he Transcribes in this manner Hibernia habet Parliamentum faciunt Leges nostra Statuta non ligant eos quia non mittunt Milites ad Parliamentum and then adds in a Parenthesis which is to be understood unless they be specially named sed Personae eorum sunt subjecti Regis sicut inhabitantes in Calesia Gasconia Guyan The first thing I shall observe hereon is the very unfaithful and broken Citation of this Passage as will manifestly appear by comparing it with the true Transcript I have given thereof before pag. 91. Were this all 't were in some measure pardonable But what cannot be excused is the Unwarrantable Position in his Parenthesis without the least colour or ground for it in his Text. Herein he concludes down right Magisterially So it must be this is my Definitive Sentence as if his Plain Assertion without any other Reason ought to prevail nay even point blank against the irrefragable Reason of the Book he quotes I confess in another place of Calvin's Case viz. fol. 17. b. he gives this Assertion a Colour of Reason by saying That tho' Ireland be a Distinct Dominion from England yet the Title thereof being by Conquest the same by Iudgment of Law might by Express Words be bound by the Parliaments of England How far Conquest gives a Title we have Enquired before But I would fain know what Lord Cook means by