A VINDICATION OF THE Parliament of ENGLAND In answer to a BOOK WRITTEN By WILLIAM MOLYNEUX of Dublin Esq INTITULED The Case of Irelands being bound by Acts of Parliament in England stated By JOHN CARY Merchant in Bristol Nolumus Leges Anglicanas mutari LONDON Printed by Freeman Collins and are to be sold by Sam. Crouch in Cornhill and Eliz. Whitlock near Stationers-Hall 1698. To the Right Honourable John Lord Somers Baron of EVESHAM And Lord High Chancellor of ENGLAND I Humbly make bold to Present Your Lordship with this little Tract being an Answer to a Book Entituled The Case of Ireland 's being bound by Acts of Parliament in England stated Written by William Molyneus of Dublin Esquire The Reason which induced me to intermeddle in a thing so much out of my Profession as Matters of Law are was that I had formerly amongst other things discours'd on the State of Ireland in my Essay on Trade and offer'd it as my Opinion That except that Kingdom was bound up more strictly by Laws made in England it would soon destroy our Woollen Manufactory here Wherefore I proposed to reduce it with respect to its Trade to the state of our other Plantations and Settlements Abroad which I supposed the only Means we had left to help our selves and to render Ireland more useful to this Kingdom This I humbly presented to the King 's Most Excellent Majesty and also to the Honourable the Commons of England then sitting in Parliament which I presumed to do because I thought I had Faithfully and Impartially discoursed on the Subjects I undertook at least I knew I had endeavoured to do so and supposing that Book might give some beginning to the Bill for Encouraging the Woollen Manufactures in England and restraining the Exportation of the Woollen Manufactures from Ireland I found my self obliged to consider the Arguments which might be brought against Ireland 's being bound by Statute Laws made in England What Success that Bill will have I know not but I very much fear if something of that nature be not done we shall soon loose that part of our Woollen Manufacture now left which will tend to the Ruining our Poor the Lessening the Value of the Lands of England and depriving us of a great Number of People who will be necessitated to leave this Kingdom and go over to Ireland to follow their Employments there and all this without rendring the Gentlemen of Ireland any sort of Advantage that may not be made up to them another way This I humbly conceive may be done and Ireland encouraged on another Manufacture no way Detrimental to the Interest of England and carried on by such Methods as may become profitable to both Kingdoms Till this be done I very much fear both will be uneasie I humbly beg your Lordship's Pardon for my Presumption and that you will be pleased to accept what I here offer as from a Person who truly Honours your Lordship and so much the more because you have always Asserted the Rights and Powers of Parliaments I am with all Dutiful respect Right Honourable Your Lordship 's most Humble and most Obedient Servant JOHN CARY A VINDICATION of the Parliament of England 's Power to Bind Ireland by their Statute-Laws in Answer to a Book written by William Molyneux of Dublin Esq SIR YOUR Book Entituled The Case of Ireland 's being bound by Acts of Parliament in England Stated I have seen and read over with some thought and because I cannot agree with you in your Opinion I design this as an Answer to shew you the reason why I differ from you But before I proceed farther I shall premise and grant with you That Ireland hath long had a Parliament and I am apt to think that your mistake arises from this that you Build too much on the Name not considering the Power that Parliament Legally hath For this is no more then our Foreign Plantations and great Corporations in England have in the former the Governours represent the King the great Men or Council the Lords and the Commons are represented by such as they elect and send from their several Districts In the latter these three Estates are likewise Represented by the Mayor Aldermen and Common Council of the several Cities or Corporations these make Laws for their better Order and Government yet all subservient to the great Council or Parliament of this Nation from whose Jurisdiction those Priviledges do not in the least set them free but they pay a due Obedience to their Laws especially those made with an Intention to bind them The Dispute now between you and me is Whither Ireland can be bound by our English Acts of Parliament This you deny and I affirm I will therefore proceed to enquire into your Arguments And because I intend as much Brevity as possible I can I will pass by all that in your Book which I apprehend doth not concern the Matter in Dispute Your Stile is good and your Language like a Gentleman but with this fault that under that you sometimes endeavour to cloud your Design and represent it to the Reader quite different from your own Intention Page 4 You tell us That the Subject of your present Disquisition shall be how far the Parliament of England may think it reasonable to intermeddle with the Affairs of Ireland and bind you up by Laws made in their House This you might have informed your self from our Statute-Books which begin with the Laws of Henry III. about Five hundred years since and you will find that in that King's Reign and ever since in the Reigns of his Successors the Parliament of England have thought it reasonable to Bind up Ireland by Laws made here so often as they saw there was occasion and no doubt they did the same or at least had Power so to do in the Reigns of Henry II. Richard I. and King John who all preceded King Henry III. and Reigned after Ireland came under the English Government Now were that all the Question in Dispute I could soon answer you that what the Parliaments of England did Five hundred years past and have done ever since the present Parliaments think reasonable to suppose themselves impowered to do because they make Precedents of former times their Rule and Government so that 't is not the Will but the Power of the Parliament of England in this Matter that you Dispute and this appears more plainly in your next Paragraph where you call it a pretended Right founded only on the imaginary Title of Conquest or Purchase or on Precedents and Matters of Record I do not think it very material for me to consider on which of these imaginary Titles as you call them they pretend to this Power the Question will not turn on that 't is enough if I assert and prove that the Parliaments of England did exercise this Power ever since Ireland hath been under the English Government and I think it will lye on you to
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
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.
did not you set it forth in your Petition to the Parliament of England and endeavour with them to have got it mentioned in their Act which might also have been a salvo to the Priviledge of the Parliament of Ireland hereafter But I cannot think it was so because you very well knew by a long Experience that Acts of Parliament made in England wanted not the Authority of the Parliament of Ireland to confirm them and consequently you needed it not in this Nor was there any reason to fear this Act 's being pleaded against you as a Precedent of your Submission and absolute acquiescence in the Jurisdiction of the Parliaments of England over the Kingdom of Ireland which you complain of p. 110. for I should take the Authority of the Parliament of England to be very young if it depended thereon But now you have done with this Act give me leave to take it up You say That therein King James his Irish Parliament at Dublin and all Acts and Attainders done by them are declared void p. 109. I find then that King James had a Parliament in Ireland which Parliament must be lawfully Assembled if Ireland is a separate Kingdom and not subject to the Statute-Laws of England For though he had abdicated the Kingdom of England and that it was so declared by the Parliament here who had settled the Crown on King William and Queen Mary yet supposing Ireland to be a separate Kingdom that Declaration would no more have reached it than it did Scotland till the same was done by the Parliament there Hence then it follows either that you did tacitely confess Ireland to be no separate Kingdom or that the Parliament of England had Power to declare void an Irish Parliament and all Acts and Attainders done by them for you say That you obtained this Act for your better Security and Relief Please to consider whether I am not in the right as to this Matter The next Act you mention is p. 111. viz. An Act for Abrogating the Oath of Supremacy in Ireland and appointing other Oaths 3. 4. Gul. Mar. This you say binds Ireland and to this and the forementioned Acts you say you conformed your selves because they were in your Favour and you hope that a voluntary Submission to the Commands of another who hath no Jurisdiction over you as you suppose the Parliament of England hath not because they are pleasing to you shall give him no Authority to command you ever after as he pleases p. 112. If this were the Case I confess you have reason on your side but seeing it is not but that the Parliament of England hath made Laws to bind Ireland ever since it was united to the Imperial Crown thereof I hope the Obedience you paid to these Statutes shall not be called a Voluntary Submission which you have Power to throw off when you please except you are of Opinion with what follows viz. That Subjects ought not to obey longer than they see it convenient for them unless they be forced to it which Force they are to free themselves from as soon as they can I am apt to think the Parliament of England will not like this Principle and I do not see how the Parliament of Ireland can neither for if this be allowed pari ratione you may throw off their Jurisdiction also when you please But I will return to this last Act which you say p. 111. was made 3 4 Gul. Mar. It hath slipt my Collection so I can observe nothing from it save what you say your self viz. That the Parliament convened at Dublin Anno 1692. under Lord Sidney and that likewise Anno 1695 under Lord Caple paid an entire Obedience to it From whence I conclude that those two Parliaments thought it their Duty so to do else it would seem very imprudent in them because they could not but conclude that it would be interpreted an Acknowledgment of the Jurisdiction of the Parliament of England over them not that I urge it against them for a Precedent in favour of the Parliament of England 't will imply a weakness in their Authority if they wanted it which they do not by your own Confession for you say p. 64. That several English Acts of Parliament were allowed in the Parliament of Ireland held 10 Hen. 7. tho' I think that allowance utterly unnecessary and rather an Incroachment on the Jurisdiction of the Parliament of England But why did the Parliament of England Anno 3 4 Gul. Mar. make this Law at a time when the Parliament of Ireland was so near sitting which you say was Anno 1692 Truly though I cannot give their Reasons for it and it will not be good Manners for me to ask them yet I will adventure my Thought which is That they knew they had Power to make it and that the Parliament of Ireland whenever they met was bound to pay Obedience to it And now it comes into my mind let me ask you Gentlemen of Ireland this Question Did you think King William and Queen Mary King and Queen of Ireland before the Calling of that Parliament or did you not if you did not how came that Parliament to meet by Vertue of their Writs For if Ireland be an Independant Kingdom the Declaration of the Parliament of England as I said before was nothing to you but if you did it must be by Vertue of the Act of Recognition made in the Parliament of England if so then that Act also reached Ireland though you do not mention it and then it follows that here is a New Original Compact whereby Ireland is become a Dependant on the Kingdom of England and your Parliament on the Parliament thereof I do not see how you will get over this Argument though there is no need to make use of it in favour of the Parliament of England yet I may with much more Reason draw this Conclusion from hence then you can from the supposed Donation of King Henry II. to his Son John that Ireland was then made a separate Kingdom But I go forwards p. 113. you come to your Arguments drawn from the Liberty of the People and tell us 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 alienated or given up by any Body of Men whatsoever I confess my self intirely of this Opinion and I cannot think the People of Ireland ought to be deprived of that which I would not lose my self much less can I Argue for it So that you see I am no Friend to Slavery or any thing that looks like it when I cannot defend my Argument without subjecting Ireland to this State I will give up the Gantlet But let us rightly distinguish in this Matter and since we agree in the main let us consider what you mean by giving Consent