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
due time to settle the other Constitutions agreable to the Model of England If therefore England had then Sheriffs we need not wonder to find them named in the Irish Modus tho they were not as yet establish'd amongst us for they were designed to be appointed soon after and before the Modus could be put regularly in execution and accordingly we find them establish'd in some Counties of Ireland in King Iohns Time This Irish Modus is said to have been in the Custody of Sir Christopher Preston of Clane in Ireland An. 6. Hen. 4. and by Sir Iohn Talboi Lord Lieutenant of Ireland under King Hen. 4. It was Exemplified by Inspeximus under the great Seal of Ireland and the Exemplification was sometimes in the Hands of Mr. Hackwel of Lincolns Inn and by him was Communicated to Mr. Selden The Tenor of which Exemplification runs thus Henricus Dei Gratia Rex Angliae Franciae Dominus Hiberniae omnibus ad quos presentes Literae pervenerint salutem Inspeximus Tenorem Diversorum Articulorum in quodam Rotulo Pergameneo Scriptorum cum Christophero Preston Milite Tempore Arrestationis suae apud Villam de Clare per Deputatum Dilecti Fidelis nostri Iohannes Talbot de Halomshire Chivaler locum nostrum Tenentis Terrae nostrae Hiberniae nuper factae inventorum ac coram nobis Concilio nostro in eadem terrae nostra apud Villam de Trim. Nono die Ianuarii ultimo praeteriti in haec verba Modus Tenendi Parliamentâ—… Henricus Rex Angliae Conquestor Dominus Hibernia Mittit have formam Archiepiscopis c. and so as before Et omnibus Fidelibus suis Terrae Hiberniae Tenendi Parliamentum Imprimis Summonitio c. and then follows the Modus agreeable in most things with that of England only fitted to Ireland Then the Exemplification concludes Nos autem tenores Articulorum praedictorum de Assensu praefati Locum tenentis Concilii praedicti tenore praesentium duximus Exemplificandum has Literas nostras fieri fecimus Patentes Teste Praefato Locum nostrum tenente apud Trim. 12 diae Ianuarii Anno Regni nostri sexto Per ipsum Locum tenentem Concilium Now we can hardly think it credible says the Bishop of Meath that an Exemplification could have been made so solemnly of it by King Henry the Fourth and that it should refer to a Modus transmitted into Ireland by King Henry II. and Affirm that it was produced before the Lord Lieutenant and Council at Trym if no such thing had been Done This were to call in question the Truth of all former Records and Transactions and make the Exemplification contain an Egregious Falshood in the body of it The Reverend Bishop of Meath in his fore-cited Preface does believe that he had obtain'd the very Original Record said by my Lord Cook to have been in the Hands of Sir Christopher Preston It came to that Learned Prelates Hands amongst other Papers and Manuscripts of Sir William Domviles late Attorney General in this Kingdom who in his Life-time upon an occasional Discourse with the Bishop concerning It told him that this Record was bestow'd on him Sir W. Domvile by Sir Iames Cuffe late Deputy Vice-Treasurer of Ireland that Sir Iames found it among the Papers of Sir Francis Aungier Master of the Rolls in this Kingdom and the present Earl of Longford Grandson to the said Sir Francis Aungier told the Bishop that his said Grandfather had it out of the Treasury of Waterford Whilst I write this I have this very Record now before me from the Hands of the said Bishop of Meath's Son my Nephew Samuel Dopping and I must confess it has a Venerable Antient Appearance but whether it be the True Original Record I leave on the Arguments produced for its Credit by the said Bishop This I am sure of that whether this be the very Record Transmitted hither by King Henry the Second or not yet 't is most certain from the Unanimous Concessions of all the fore-mentioned Antiquaries Cook Selden Pryn c. That we have had Parliaments in Ireland very soon after the Invasion of Henry II. For Pryn confesses that King Hen. II. after his Conquest of Ireland and the General Voluntary Submission Homages and Fealties of most of the Irish Kings Prelates Nobles Cities and People to him as to their Soveraign Lord and King Anno 1170 it should be 1172. held therein a General Council of the Clergy at Cashal wherein he Rectify'd many Abuses in the Church and Establish'd sundry Eclesiastical Laws agreeable to those in the Church of England Ecclesiae illius statum ad Anglicanae Ecclesiae formam Redigere Modis omnibus elaborando To which the Irish Clergy promis'd Conformity and to observe them for time to come as Giraldus Cambrensis who was then in Ireland and other Histoans relate Et ut in singulis Observatio similis Regnum Colligaret utrumque that is England and Ireland passim omnes unanimi voluntate communi Assensu Pari desiderio Regis imperio se subjiciunt omnibus igitur hoc modo Consummatis in Concilio habito apud Lismore Leges Angliae ab omnibus sunt gratantur receptae juratoriâ cautione praestitâ Confirmatae says Math. Paris Can any Concession in the World be more plain and free than this We have heard of late much Talk in England of an Original Compact between the King and People of England I am sure 't is not possible to shew a more fair Original Compact between a King and People than this between Henry the Second and the People of Ireland That they should Enjoy the like Liberties and Immunities and be Govern'd by the same Mild Laws both Civil and Ecclesiastical as the People of England From all which It is manifest that there were no Laws Imposed on the People of Ireland by any Authority of the Parliament of England nor any Laws introduced into that Kingdom by Henry the Second but by the Consent and Allowance of the People of Ireland For both the Civil and Ecclesiastical State were settled there Regiae sublimitatis Authoritate solely by the Kings Authority and their own good Wills as the Irist Statute 11 Eliz. C. 1. expresses it And not only the Laws of England but the manner of Holding Parliaments in Ireland to make Laws oâ—… their own which is the Foundatioâ—… and Bulwark of the Peoples Liberties and Properties was Directeâ—… and Established there by Henry the Second as if he were Resolveâ—… that no other Person or Persons should be the Founders of the Government of Ireland but himself and the Consent of the People who submitted themselves to him against all Persons whatsoever Let us now see by what farther Degrees the Government of Ireland grew up Conformable to that of England About the Twenty-third year of Henry the Second which was within Five years after his Return from Ireland he created his younger Son Iohn King of Ireland at a
Subordination proceeded in those days it did not arise from the Parliament of England it self For we have not one single Instance of an English Act of Parliament Expresly Claiming this Right of Binding us But we have several Instances of Irish Acts of Parliament Expresly Denying this Subordination as appears by what foregoes Afterwards by a Statute made in Ireland the 18th of Hen. VI. Cap. 1. All the Statutes made in England against the Extortions and Oppressions of Purveyors are Enacted to be holden and kept in all Points and put in Execution in this Land of Ireland And in the 32d year of Henry the Sixth Cap. 1. by a Parliament in Ireland 't is Enacted That all the Statutes made against Provisors to the Court of Rome as well in England as in Ireland be had and kept in force After this in a Parliament at Drogheda the 8th of Edward IV. cap. 1. it was Ratify'd That the English Statute against Rape made the 6th of Richard the Second should be of Force in Ireland from the 6th day of March last past And that from henceforth the said Act and all other Statutes and Acts made by Authority of Parliament within the Realm of England be Ratify'd and Confirm'd and Adjudged by the Authority of this Parliament in their Force and Strength from the said sixth day of March We shall hereafter have occasion of taking farther Notice of this Statute upon another Account Lastly In a Parliament held at Drogheda the 10th of Henry the Seventh cap. 22. it is Enacted That all Statutes late that is as the Learned in the Laws expound it before that time made in England concerning the Common and Publique Weal of the same from henceforth be Deem'd effectual in Law and be Accepted Used and Executed within this Land of Ireland in all Points c. And in the 14th year of the same Kings Reign in a Parliament held at Tristle-Dermot it was Enacted That all Acts of Parliament made in England for Punishing Customers Controulers and Searchers for their Misdemeanors or for Punishment of Merchants or Factors be of Force here in Ireland Provided they be first Proclaim'd at Dublin Drogheda and other Market-Towns Thus we see by what Steps and Degrees all the Statutes which were made in England from the time of Magna Charta to the 10th of Henry the Seventh which did concern the Common Publick Weal were Receiv'd Confirm'd Allow'd and Authoriz'd to be of Force in Ireland all which was done by Assent of the Lords Spiritual and Temporal and the Commons in the Parliament of Ireland Assembled and no Otherwise We shall next Enquire Whether there are not other Acts of the English Parliament both before and since the 10th of Henry the Seventh which were and are of Force in Ireland tho' not Allow'd of by Parliament in this Kingdom And we shall find That by the Opinion on of our best Lawyers there are divers such but then they are only such as are Declaratory of the Antient Common Law of England and not introductive of any New Law For these become of Force by the first General Establishment of the Common Laws of England in this Kingdom under Henry the Second King Iohn and Henry the Third and need no particular Act of Ireland for their Sanction As to those English Statutes since the 10th of Henry the Seventh that are Introductive of a New Law it was never made a Question whether they should Bind Ireland without being Allow'd in Parliament here till of very late years this Doubt began to be moved and how it has been Carried on and Promoted shall Appear more fully hereafter I say Till of very late years for the Antient Precedents which we have to the contrary are very numerous Amongst many we shall mention the following Particulars In the 21th of Henry the 8th an Act was made in England making it Felony in a Servant that runneth away with his Masters or Mistresses Goods This Act was not receiv'd in Ireland till it was Enacted by a Parliament held here in the 33d of Henry the 8th c. 5. Ses. 1. In the 21th of Henry VIII c. 19. there was a Law made in England That all Lords might Distrain on the Lands of them holden and make their Avowry not naming the Tenant but the Land But this was not of force in Ireland till Enacted here in the 33d of Henry VIII C. 1. Ses. 1. An Act was made in England anno 31. Henry VIII That Joint-Tenents and Tenents in Common should be compelled to make Partition as Coparceners were compellable at Common Law But this Act was not Receiv'd in Ireland till Enacted here An. 33. Henry VIII c. 10. Anno 27. Henry VIII c. 10. The Statute for Transferring Uses into Possession was made in England but not admitted in Ireland till 10. Car. 1. Ses. 2. In like manner the English Statute 33. Henry VIII c. 1. directing how Lands and Tenements may be dispos'd by Will c. was not of force in Ireland till 10. Car. 2. Ses. 2. The Act of Uniformity of Common Prayer and Administration of the Sacraments was made in England the 1st of Eliz. c. 2. but was not establish'd in Ireland till the 2d of Eliz. c. 2. And so that of England 14. Car. 2. c. 14. was not receiv'd in Ireland till 17. 18. Car. 2 c. 6. The Statute against Wilful Perjury made in England 5. Eliz. c. 9. was not Enacted in Ireland till 28 Eliz. c. 1. So the English Act against Witchcraft and Sorcery made 5 Eliz. c. 16. And another Act against Forgery 5 Eliz. c. 14. were neither of them in force in Ireland till the 28th of Her Reign Cap. 3 and 4. The English Statutes against Pirates was made the 28th of Hen. 8. c. 15. but not in Ireland till the 12th of King Iames c. 2. In England an Act was made the 27th of Eliz. c. 4 against Fraudulent Conveyances but it was not in force in Ireland till Enacted here the 10th of Charles c. 3. Ses. 2. In the 15th year of King Charles the 1st in a Parliament held at Dublin there were Six English Statutes made Laws of this Kingdom with such Alterations as best fitted them to the State thereof viz. 21 Iac. c. 14. For pleading the General Issue in Intrusions brought by the King by Chap. 1. of the Irish Statutes 31 Eliz. c. 2. For Abridging of Proclamations on Fines by Chap. 2. 2 and 3 Edw. 6. c. 8. Concerning Offices before the Escheator by Chap. 4. 31 Eliz. c. 1. Discontinuance of Writs of Error in the Exchequer Chamber by Chap. 5. 8 Eliz. c. 4. and 18 Eliz. c. 7. concerning Clergy by Chap. 7. 24 Hen. 8. c. 5. Concerning Killing a Robber by Chap. 9. There are Six English Statutes likewise passed in the time of King Charles the 2d upon and soon after the Restoration some of which were not passed into Laws in Ireland till a year two or three afterwards As will appear
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
Iudgment of Law Whether he means the Law of Nature and Reason or of Nations or the Civil Laws of our Commonwealths in none of which Senses I conceive will he or any Man be ever able to make out his Position Is the Reason of England's Parliament not Binding Ireland Because we do not send thither Representatives And is the Efficacy of this Reason taken off by our being Named in an English Act Why should sending Representatives to Parliament Bind those that send them Meerly because thereby the Consent of those that are Bound is obtain'd as far as those sort of Meetings can possibly permit which is the very Foundation of the Obligation of all Laws And is Ireland's being Named in an English Act of Parliament the least step towards obtaining the Consent of the People of Ireland If it be not then certainly my Lord Cook 's Parenthesis is to no purpose And 't is a wonder to me that so many Men have run upon this vain Imagination meerly from the Assertion of this Judge For I challenge any Man to shew me that any one before him or any one since but from him has vended this Doctrine And if the bare Assertion of a Judge shall Bind a whole Nation and Dissolve the Rights and Liberties thereof We shall make their Tongues very powerful and constitute them greater Lawgivers than the greatest Senates I do not see why my Denying it should not be as Authentick as his Affirming it 'T is true He was a great Lawyer and a powerful Judge but had no more Authority to make a Law than I or any Man else But some will say He was a Learned Judge and may be supposed to have Reason for his Position Why then does he not give it us And then what he Asserts would Prevail not from the Authority of the Person but from the Force of the Reason The most Learned in the Laws have no more power to make or alter a Constitution than any other Man And their Decisions shall no farther prevail than supported by Reason and Equity I conceive my Ld. Ch. Justice Cooke apply'd himself so wholly to the Study of the Common Laws of England that he did not enquire far into the Laws of Nature and Nations if he had certainly he could never have been Guilty of such an Erroneous Slip He would have seen demonstrably that Consent only gives Humane Laws their Force and that therefore the Reason in the Case he quotes is unanswerable Quia non mittunt Milites ad Parliamentum Moreover the Assertion of Cooke in this point is directly contrary to the whole tenour of the Case which he cites For the very Act of Parliament on which the Debate of the Judges did arise and which they deemed not to be of Force in Ireland particularly names Ireland So that here again Ld. Cooke's Error appears most plainly For this I refer to the Report as I have exactly delivered it before pag. 90 91. By which it appears clearly to be the unanimous Opinion of all the Judges then in the Exchequer Chamber That within the Land of Ireland the Parliaments of England have no Jurisdiction whatever they may have over the Subjects of Ireland on the open Seas And the reason is given Quia Hibernia non mittit Milites ad Parliamentum in Angliâ This Assertion likewise is inconsistent with himself in other parts of his Works He tells us in his 4th Inst. pag. 349. That 't is plain that not only King John as all Men allow but Henry the Second also the Father of King John did Ordain and Command at the Instance of the Irish That such Laws as had been in England should be Observ'd and of Force in Ireland Hereby Ireland being of it self a distinct Dominion and no part of the Kingdom of England was to have Parliaments holden there as in England And in pag. 12. he tells us That Henry the Second sent a Modus into Ireland directing them how to hold their Parliaments But to what end was all this if Ireland nevertheless were subject to the Parliament of England The King and Parliaments of these Kingdoms are the supream Legislators If Ireland be subject to Two its Own and that of England it has Two Supreams 't is not impossible but they may Enact different or contrary Sanctions which of these shall the People Obey He tells us in Calvin's Case fol. 17. b. That if a King hath a Christian Kingdom by Conquest as Henry the Second had Ireland after King John had given to them being under his Obedience and Subjection the Laws of England for the Government of that Country no succeeding King could alter the same without Parliament Which by the way seems directly contradictory to what he says concerning Ireland six lines below this last cited passage So that we may observe my Lord Cook enormously stumbling at every turn in this Point Thus I have done with this Reverend Judge and in him with the only Positive Opinion against us I shall now consider what our Law-Books offer in our Favour on this Point To this purpose we meet a Case fully apposite reported in the Year-Book of the 20th of Henry the 6th fol. 8. between one Iohn Pilkington and one A. Pilkington brought a Scire Facias against A. to shew Cause why Letters Patents whereby the King had granted an Office in Ireland to the said A. should not be repeal'd since the said Pilkington had the same Office granted to him by former Letters Patents of the same King to be occupied by himself or his Deputy Whereupon A. pleaded That the Land of Ireland time out of Memory hath been a Land separated and distinct from the Land of England and Ruled and Governed by the Customs of the same Land of Ireland That the Lords of the same Land which are of the King's Council have used from time to time in the absence of the King to Elect a Iustice who hath Power to Pardon and Punish all Felons c. and to call a Parliament and by the Advice of the Lords and Commonalty to make Statutes He alledged further That a Parliament was Assembled and that it was Ordain'd by the said Parliament That every Man who had an Office within the said Land before a certain day shall occupy the said Office by himself otherwise he should forfeit He shew'd that Pilkington Occupied by a Deputy and that therefore his Office was void and that the King had granted the said Office to him the said A. Hereupon Pilkington Demurr'd in Law and it was debated by the Judges Yelverton Fortescue Portington Markham and Ascough whether the said Prescription in relation to the State and Government of Ireland be good oâ—… void in Law Yelverton and Portington held the Prescription void But Fortescue Markham and Ascough held the Prescription good and that the Letters Patents made to A were good and ought not to be Repeal'd And in this it was agreed by Fortescue and Portington That if
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
Bench of Ireland to the Kings Bench of England But to this I answer 1. That 't is the Opinion of several Learned in the Laws of Ireland That this Removal of a Judgment from the Kings Bench of Ireland by Writ of Error into the Kings Bench of England is founded on an Act of Parliament in Ireland which is lost amongst a great number of other Acts which we want for the space of 130 years at one time and of 120 at another time as we have noted before pag. 65. But it being only a General Tradition that there was such an Act of our Parliament we only offer it as a Surmise the Statute it self does not appear 2. Where a Judgment in Ireland is Removed to be Revers'd in England the Judges in England ought and always do judge according to the Laws and Customs of Ireland and not according to the Laws and Customs of England any otherwise than as these may be of Force in Ireland but if in any thing the two Laws differ the Law of Ireland must prevail and guide their Judgment And therefore in the Case of one Kelly Removed to the Kings Bench in England in the beginning of King Charles the First one Error was assigned that the Praecipe was of Woods and Underwoods which is a manifest Error if brought in England but the Judges finding the Use to be Otherwise in Ireland judged it No Error So in Crook Charles fol. 511. Mulcarry vers Eyres Error was assigned for that the Declaration was of one hundred Acres of Bogg which is a word not known in England but 't was said It was well enough understood in Ireland and so adjudged No Error From whence I conceive 't is manifest that the Jurisdiction of the Kings Bench in England over a Judgment in the Kings Bench of Ireland does not proceed from any Subordination of one Kingdom to the other but from some other Reason which we shall endeavour to make out 3. We have before observed That in the Reign of K. Henry the Third Gerald Fitz-Maurice Lord Justice of Ireland sent four Knights to know what was held for Law in England in the Case of Coparceners The Occasion of which Message as before we have noted out of the Kings Rescript was because the Kings Justice of Ireland was ignorant what the Law was We may reasonably imagine that there were many Messages of this kind for in the Infancy of the English Government it may well be supposed that the Judges in Ireland were not so deeply versed in the Laws of England This occasioned Messages to England Before Judgment given in Ireland to be inform'd of the Law And After Decrees made Persons who thought themselves aggrieved by Erroneous Judgments apply'd themselves to the King in England for Redress Thus it must be that Writs of Error unless they had their Sanction in Parliament became in use Complaints to the King by those that thought themselves injur'd increased and at last grew into Custom and obtain'd the Force of Law Perhaps it may be Objected That if the Judges of the Kings Bench in England ought to Regulate their Judgment by the Customs of Ireland and not of England it will follow that this Original which we assign of Writs of Error to England is not right I Answer That this may be the Primary Original and yet consist well enough with what we have before laid down For tho' the Common Law of England was to be the Common Law of Ireland and Ireland at the beginning of its English Government might frequently send into England to be inform'd about it yet this does not hinder but Ireland in a long Process of Time may have some smaller Customs and Laws of its own gradually but insensibly crept into Practice that may in some measure differ from the Customs and Practice of England and where there is any such the Judges of England must regulate their Sentence accordingly tho' the first Rise of Writs of Error to England may be as we have here suggested In like manner where the Statute-Law of Ireland differs from that of England the Judges of England will regulate their Judgments by the Statute-law of Ireland This is the constant Practice and notoriously known in Westminster-Hall From which it appears that removing a Judgment from the Kings Bench of Ireland to the Kings Bench of England is but an Appeal to the King in his Bench of England for his Sense Judgement or Exposition of the Laws of Ireland But of this more hereafter 4. When a Writ of Error is Returned into the Kings Bench of England Suit is made to the King only The Matter lies altogether before Him and the Party complaining applies to No Part of the Political Government of England for Redress but to the King of Ireland only who is in England That the King only is sued to our Law-Books make Plain This Court is call'd Curia Domini Regis and Aula Regia because the King used to sit there in Person as Lambard tells us And every Cause brought there is said to be coram Domino Rege even at this very day Cooke 4 Inst. p. 72. Therefore if a Writ be returnable coram nobis ubicunque fuerimus 't is to be Return'd to the Kings Bench. But if it be Returnable coram Iusticiariis nostris apud Westm. 't is to be Return'd into the Common Pleas. This Court as Glavnil and other Antients tells us used to Travel with the King where-ever he went And Fleta in describing this Court says Habet Rex Curiam suam Iusticiarios suos coram quibus non alibi nisi coram semet ipso c. falsa Iudicia Errores revertuntur Corriguntur The King then as Britton says having Supream Jurisdiction in his Realm to judge in all Causes whatsoever therefore it is that Erroneous Iudgments were brought to him out of Ireland But this does not argue that Ireland is therefore Subordinate to England for the People of Ireland are the Subjects of the King to whom they Appeal And 't is not from the Country where the Court is held but from the Presence and Authority of the King to whom the People of Ireland have as good a Title as the People of England that the Praeeminence of the Iurisdiction does flow And I question not but in former times when these Courts were first Erected and when the King Exerted a greater Power in Judicature than he does now and he used to sit in his own Court that if he had Travell'd into Ireland and the Court had follow'd him thither Erroncous Judgments might have been removed from England before him into his Court in Ireland for so certainly it must be since the Court Travell'd with the King From hence it appears that all the Jurisdiction that the Kings Bench in England has over the Kings Bench in Ireland arises only from the Kings Presence in the former And the same may be said of the Chancery in England if it will assume
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
is the Brutal Force the Aggressor has used that gives his Adversary a Right to take away his Life as a noxious Creature But 't is only Damage sustain'd that gives Title to another Mans Goods It must be confess'd that the Practice of the World is otherwise and we commonly see the Conqueror whether Iust or Unjust by the Force he has over the Conquer'd compels them with a Sword at their Brest to stoop to his Conditions and submit to such a Government as he pleases to Afford them But we Enquire not now what is the Practice but what Right there is to do so If it be said the Conquer'd submit by their own Consent Then this allows Consent necessary to give the Conquerour a Title to Rule over them But then we may Enquire whether Promises Extorted by Force without Right can be thought Consent and how far they are Obligatory And I humbly conceive they Bind not at all He that forces my Horse from me ought presently to Restore him and I have still a Right to retake him So he that has forced a Promise from me ought presently to Restore it that is quit me of the Obligation of it or I may chuse whether I will perform it or not For the Law of Nature obliges us only by the Rules she prescribes and therefore cannot oblige me by the Violation of her Rules such is the Extorting any thing from me by Force From what has been said I presume it pretty clearly appears that an Unjust Conquest gives no Title at all That a Iust Conquest gives Power only over the Lives and Liberties of the Actual Opposers but not over their Posterity or Estates otherwise than as before is mentioned and not at all over those that did not Concur in the Opposition They that desire a more full Disquisition of this Matter may find it at large in an Incomparable Treatise concerning the True Original Extent and End of Civil Government Chap. 16. This Discourse is said to be written by my Excellent Friend IOHN LOCKE Esq Whether it be so or not I know not This I am sure whoever is the Author the Greatest Genius in Christendom need not disown it But granting that all we have said in this Matter is Wrong and granting that a Conquerour whether Iust or Unjust obtains an Absolute Arbitrary Dominion over the Persons Estates Lives Liberties and Fortunes of all those whom he finds in the Nation their Wives Posterity c. so as to make perpetual Slaves of them and their Generations to come Let us next Enquire whether Concessions granted by such a Victorious Hero do not bound the Exorbitancy of his Power and whether he be not Obliged strictly to Observe these Grants And here I believe no Man of Common Sense or Justice will Deny it None that has ever Consider'd the Law of Nature and Nations can possibly hesitate on this matter the very Proposing it strikes the Sense and Common Notions of all Men so forcibly that it needs no farther proof I shall therefore insist no longer on it but hasten to consider how far this is the Case of Ireland And that brings me naturally to the fourth Particular propos'd vizt To shew by Precedents Records and History what Concessions and Grants have been made from time to time to the People of Ireland and by what steps the Laws of England came to be introduced into this Kingdom We are told by Matth. Paris Historiographer to Hen. III. that Henry the Second a little before he left Ireland in a Publick Assembly and Council of the Irish at Lismore did cause the Irish to Receive and swear to be Govern'd by the Laws of England Rex Henricus saith he antequam ex Hibernia Rediret apud Lismore Concilium Congregavit ubi Leges Angliae sunt ab omnibus gratanter receptae Iuratoriâ cautione prestitâ Confirmatae Vid. Matth. Paris ad An. 1172. Vit. H. 2. And not only thus but if we may give Credit to Sir Edward Cook in the 4th Instit. Cap. 1. and 76. and to the Inscription to the Irish Modus Tenendi Parliamentum it will clearly Appear that Henry the Second did not only settle the the Laws of England in Ireland and the Jurisdiction Eclesiastical there by the Voluntary Acceptance and Allowance of the Nobility and Clergy but did likewise Allow them the Freedom of Holding of Parliaments in Ireland as a separate and distinct Kingdom from England and did then send them a Modus to Direct them how to Hold their Parliaments there The Title of which Modus runs thus Henricus Rex Angliae Conquestor Dominus Hiberniae c. Mittit hanc formam Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus Iusticiariis Vicecomitibus Majoribus Praepositis Ministris omnibus Fidelibus suis Terrae Hiberniae Tenendi Parliamentum In primis Summonitio Parliamenti praecedere debet per Quadraginta Dies And so forth This Modus is said to have been sent into Ireland by Hen. II. for a Direction to Hold their Parliaments there And the sense of it agrees for the most part with the Modus Tenendi Parl. in England said to have been Allowed by William the Conquerour when he obtain'd that Kingdom where 't is alter'd 't is only to fit it the better for the Kingdom of Ireland I know very well the Antiquity of this Modus so said to be Transmitted for Ireland by Hen. II. is question'd by some Learned Antiquaries particularly by Mr. Selden and Mr. Pryn who deny also the English Modus as well as this But on the other hand my Lord Chief Justice Cook in the 4th Instit. pag. 12. and 349. does strenuously Assert them both And the late Reverend and Learned Dr. Dopping Bishop of Meath has Published the Irish Modus with a Vindication of its Antiquity and Authority in the Preface There seems to me but two Objections of any Moment raised by Mr. Pryn against these Modi The One relates both to the English and Irish Modus the other chiefly strikes at the Irish. He says the Name Parliament so often found in these Modi was not a name for the great Council of England known so early as these Modi Pretend to I confess I am not prepared to Disprove this Antiquary in this Particular But to me it seems reasonable enough to Imagine that the Name Parliament came in with William the Conqueror 'T is a Word perfectly French and I see no reason to doubt it's Coming in with the Normans The other Objection affects our Irish Modus for he tells us That Sheriffs were not establish'd in Ireland in Henry II's time when this Modus was pretended to be sent hither yet we find the Word Vicecomes therein To this I can only Answer That Hen. II. intending to Establish in Ireland the English form of Government as the first and Chief step thereto he sent them Directions for Holding of Parliaments Designing afterwards by degrees and in
by consulting the Statute Books And in the First year of William and Mary Ses. 2. c. 9. an Act passed in England declaring all Attainders and other Acts made in the late pretended Parliament under King James at Dublin void But was not Enacted here in Ireland till the 7th year of K. William c. 3. And this was thought requisite to be done upon mature consideration thereon before the King and Council of England notwithstanding that the English Act does particularly name Ireland and was wholly design'd for and relates thereto The like may we find in several other Statutes of England passed since his present Majesties Accession to the Throne which have afterwards been passed here in Ireland with such Alterations as make them practicable and agreeable to this Kingdom Such as are amongst others the Act for Disarming Papists The Act of Recognition The Act for taking away Clergie from some Offenders The Act for taking Special Bail in the Country c. The Act against Clandestine Mortgages The Act against Cursing and Swearing These with many more are to to be found in our Statute Books in the several Reigns of Henry the 8th Edward the 6th Queen Elizabeth King Iames King Charles the 1st and 2d and King William But it is not to be found in any Records in Ireland that ever any Act of Parliament introductive of a new Law made in England since the time of King Iohn was by the judgment of any Court received for Law or put in Execution in the Realm of Ireland before the same was Confirmed and Assented to by Parliament in Ireland And thus I presume we have pretty clearly made out our Fourth Enquiry forementioned and shewn plainly the several steps by which the English form of Government and the English Statute Laws were received in this Kingdom and that this was wholly by the Peoples consent in Parliament to which we have had a very antient Right and as full a Right as our next Neighbours can pretend to or challenge I shall now consider the Objections and Difficulties that are moved on this Head drawn from Precedents and Passages in our Law-Books that may seem to prove the contrary First 't is urg'd That in the Irish Act concerning Rape passed anno 8 Edward 4 c. 1. 't is expressed That a Doubt was conceiv'd whether the English Statute of the 6th of Richard the 2d c. 6. ought to be of force in Ireland without a Confirmation thereof in the Parliament of Ireland Which shews as some alledg that even in those days it was held by some That an Act of of Parliament in England might bind Ireland before it be consented to in Parliament here But I concieve this Gloss is rais'd meerly for want of Expressing the Reason of the said Doubt in the Irish Statute of the 8th of Edward the 4th c. 1. which we may reasonably judge was this By the Statute of Westminster the 2d c. 34. a Woman that eloped from her Husband and lived with the Adulterer or a Wife that being first Ravish'd did afterwards consent and lived with the Ravisher she should loose her Dower This Statute of Westminster the 2d was made of force in Ireland by an Act passed here the 13th of Edward the 2d as we have seen before pag. 68 69. Afterwards by the English Statute of the 6th of Rich. the 2d c. 6. there was a farther addition made to the said Statute of Westminster the 2d to this effect That a Maiden or Wife being Ravished and afterwards consenting to the Ravishers as well the Ravisher as she that was Ravished shall be disabled to claim all Inheritance or Dower after the death of her Husband or Ancestor On this account the Doubt was here raised in Ireland in the 8th of Edward the 4th c. 1. Whether this latter English Statute of the 6th of Richard the 2d c. 6. were not in force in Ireland by virtue of the Irish Statute of the 13th of Edward the 2d which confirmed the Statute of Westminster the 2d c. 34. And for setling this Doubt the said Statute of the 8th of Edward the 4th c. 1. was passed in Ireland and we find very good reason for the said Doubt For the English Statute of the 6th of Richard the 2d c. 6. contained but a small addition to the Statute of Westminster the 2d c. 34. and we see that even this ad dition it self was judged not to be of force in Ireland till Enacted here For the said Irish Statute of the 8th of Edward the 4th c. 1. makes the said Statute of the 6th of Rich. 2d c. 6. of Force in Ireland only from the 6th of March then last past 'T is urg'd secondly That tho' perhaps such Acts of Parliament in England which do not Name Ireland shall not be construed to Bind Ireland yet all such English Statutes as mention Ireland either by the General Words of all his Majesty's Dominions or by particularly Naming of Ireland are and shall be of Force in this Kingdom This being a Doctrine first broach'd Directly as I conceive by Will. Hussey Lord Chief Justice of the Kings Bench in England in the first year of Henry the Seventh and of late Revived by the Lord Chief Justice Cook and strongly urged and much rely'd upon iâ—… these latter Days I shall take thâ—… Liberty of Enlarging thereon tho I venture thereby to swell this Pamphlet to a size greater than I desire or design'd First therefore As to such English Statutes as seem to comprehend Ireland and to Bind it under the General Words of all his Majesty's Dominions or Subjects whatever has been the Opinion of Private and Particular Lawyers in this Point I am sure the Opinions of the Kings of England and their Privy Council have been otherwise 'T is well known since Poyning's Act in Ireland the 10th of Henry the Seventh no Act can pass in our Parliament here till it be first Assented to by the King and Privy Council of England and Transmitted hither under the Broad Seal of England Now the King and his Privy Council there have been so far from surmising that an Act of Parliament of England mentioning only in General All the Kings Dominions or Subjects should Bind Ireland that they have clearly shewn the contrary by frequently Transmitting to Ireland to be pass'd into Laws here English Statutes wherein the General Words of all the Kings Dominions or Subjects were contain'd which would have been to no purpose but meerly Actum Agere had Ireland been Bound before by those English Statutes Of this I shall give the following Examples amongst many others The Act of Parliament in England against Appeals to Rome 24 Hen. 8. c. 12. by express words extends to all his Majesties Dominions yet the same was not in force nor receiv'd in Ireland till it was Enacted by Parliament there the 28th of Hen. 8. c. 6. In like manner the Statutes made in England concerning First Fruits
Encouraging Shipping and Navigation by express name Mentions and Binds Ireland and by the last Clause in the Act Obliges all Ships belonging thereto importing any Goods from our Foreign Plantations to touch first at England Fourthly The Acts Prohibiting the Exportation of Wooll from Ireland to any Country except to England do likewise strongly Bind us and by the 12 Car. 2. c. 32. it was made highly penal on us and by the 14th of Car. 2. c. 18. 't is made Felony To these three last Acts I must confess I have nothing to urge to take off their Efficacy Name us they do most certainly and Bind us so as we do not transgress them But how Rightfully they do this is the matter in Question This I am sure of that before these Acts in King Charles the Second's Time the Eldest of which is not over Thirty-Seven years there is not one positive full Precedent to be met with in all the Statute-Book of an English Act Binding the Kingdom of Ireland And on this Account we may venture to assert That these are at least Innovations on us as not being warranted by any former Precedents And shall Proceedings only of Thirty-Seven Years standing be urg'd against a Nation to Deprive them of the Rights and Liberties which they Enjoy'd for Five Hundred Years before and which were Invaded without and against their Consent and from that day to this have been constantly complain'd of Let any English Heart that stands so Iustly in Vindication of his own Rights and Liberties answer this Question and I have done I am now arriv'd at our Present Days under the Happy Government of His Majesty King WILLIAM the Third and I am sorry to reflect That since the late Revolution in these Kingdoms when the Subjects of England have more strenuously than ever Asserted their own Rights and the Liberty of Parliaments it has pleased them to bear harder on their Poor Neighbours than has ever yet been done in many Ages foregoing I am sure what was then done by that Wise and Just Body of Senators was perfectly out of Good Will and Kindness to us under those Miseries which our Afflicted Country of Ireland then suffered But I fear some Men have since that made use of what was then done to other Purposes than at first intended Let us now see what that was and consider the Circumstances under which it was done In the year 1689. when most oâ—… the Protestant Nobility Gentry and Clergy of Ireland were driven out of that Kingdom by the Insolencies and Barbarities of the Irish Papists who were then it Arms throughout the Kingdom and in all Places of Authority under King Iames newly Return'd to them out of France the only Refuge we had to fly to was in England where Multitudes continued for many Months destitute of all manner of Relief but such as the Charity of England afforded which indeed was very Munificent and never to be forgotten The Protestant Clergy of Ireland being thus Banish'd from their Benefices many of them Accepted such small Ecclesiastical Promotions in England as the Benevolence of well dispos'd Persons presented them with But this being directly contrary to a Statute in this Kingdom in the 17 and 18 of Charles the Second Cap. 10. Intituled An Act for Disabling of Spiritual Persons from holding Benefices or other Ecclesiastical Dignities in England or Wales and in Ireland at the same time The Protestant Irish Clergy thought they could not be too secure in avoiding the Penalty of the last mention'd Act and therefore Apply'd themselves to the Parliament of England and obtain'd an Act in the first year of King William and Queen Mary c. 29. Intituled An Act for the Relief of the Protestant Irish Clergy And this was the first Attempt that was made for Binding Ireland by an Act in England since his Majesty's Happy Accession to the Throne of these Kingdoms Afterwards in the same year and same Session Chap. 34. there pass'd an Act in England Prohibiting all Trade and Commerce with France both from England and Ireland This also binds Ireland but was during the Heat of the War in that Kingdom when 't was impossible to have a regular Parliament therein all being in the hands of the Irish Papists Neither do we complain of it as hindring us from corresponding with the King's Enemies for 't is the Duty of all Good Subjects to abstain from that But as Scotland tho' the King's Subjects Claims an Exemption from all Laws but what they Assent to in Parliament so we think this our Right also When the Banish'd Laity of Ireland observ'd the Clergy thus careful to secure their Properties and provide for the worst as well as they could in that Juncture when no other means could be taken by a Regular Parliament in Ireland they thought it likewise adviseable for them to do something in relation to their Concerns And accordingly they obtain'd the Act for the better Security and Relief of their Majesties Protestant Subjects of Ireland 1 W. and M. Ses. 2. c. 9. Wherein King Iames's Irish Parliament at Dublin and all Acts and Attainders done by them are declared void 'T is likewise thereby Enacted that no Protestant shall suffer any Prejudice in his Estate or Office by reason of his absence out of Ireland since December 25. 1685. and that there should be a Remittal of the Kings Quit-Rent from 25 December 1688. to the end of the War Thus the Laity thought themselves secure And we cannot wonder that during the Heat of a Bloody War in this Kingdom when it was impossible to Secure our Estates and Properties by a Regular Parliament of our own we should have recourse to this Means as the only which then could be had We concluded with our selves that when we had obtained these Acts from the Parliament in England we had gon a great way in securing the like Acts to be passed in a regular Parliament in Ireland whenever it should please God to re-establish us in our own Country For we well knew our own Constitution under Poynings Law That no Act could Pass in the Parliament of Ireland till approved of by the King and Privy Council of England And we knew likewise That all the Lords and others of his Majesties Privy Council in England are Members of the Lords or Commons House of Parliament there And that by obtaining their Assent to Acts of Parliament in Favour of the Irish Protestants they had in a manner pre-engaged their Assent to the like Bills when they should hereafter come before them as Privy Councellors in order to be regularly Transmitted to the Parliament of Ireland there to be passed into Laws of that Kingdom But instead of all this to meet with another Construction of what was done herein and to have it pleaded against us as a Precedent of our Submission and absolute Acquiescence in the Jurisdiction of the Parliaments of England over this Kingdom is what we complain
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