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 discharge any Persons or the Places they govern from Obedience to the Legislative Authority of England If
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.
't is to be found in the Collection of English Statutes is plainly thus The Judges in Ireland conceiving a doubt concerning Inheritances devolved to Sisters or Coheirs viz. whether the younger Sisters ought to hold of the eldest Sister and do homage unto her for their Portions or of the chief Lord and do homage unto him therefore Girald Fitz-Maurice the then Lord Justice of Ireland dispatched four Knights to the King in England to bring a Certificate from thence of the practice used there and what was the Common Law of England in that Case whereupon Henry III. in this his Certificate or Rescript which is called Statutum Hiberniae merely informs the Justice what the Law and Custom was in England viz. That the Sisters ought to hold of the chief Lord and not of the eldest Sister And the close of it commands That the foresaid Customs that be used within our Realm of England in this case be proclaimed throughout our Dominion of Ireland and be there observed Teste meipso apud Westminst 9 Febr. An. Reg. 14. From whence you infer That this Statute was no more then a Certificate of what the Common Law of England was in that case which Ireland by the original Compact was to be governed by And do you really speak your Thoughts herein Was it ever customary for the Judges to send to the King to expound Law to them and for the King by Certificates to direct them what they should give for Law I thought their Business had been to declare the Law impartially between the King and his Subjects and that if they doubted in any Points of the Common Law their Custom had been to advise one with another or with some other Learned Councel in the Law Is it to be thought the King knew Law better than his Judges I would not have you insist on this for the Honour of the Long Robe in Ireland But Sir there is more in this then perhaps at first you think for either this is a Statute Law and our Books call it so therefore in your favour I will believe it so or else the King had in those days an Absolute Power and Authority to impose on Ireland what Laws he thought fit For in the close of that Statute 't is said Therefore we command you That you cause the foresaid Customs that be used within our Realm of England in this case to be proclaimed throughout our Dominion of Ireland and to be straitly kept and observed If all our Acts of Parliament which declare the Common Law of England shall be called Certificates pray what will become of Magna Charta Charta Foresta and most of our old Laws which were generally Declarations of what was the Common Law of this Kingdom and what were the Rights and Liberties of the Subjects before the making of them I come now to your second old Precedent the Statute called Ordinatio pro Statu Hiberniae made at Nottingham 17 Edw. 1. Anno 1288. This you say pag. 88. was certainly never received or of force in Ireland And you further say That this is manifest from the very first Article of that Ordinance which prohibits the Justice of Ireland or others the King's Officers there to purchase Lands in that Kingdom or within their respective Bailiwicks without the King's Licence on pain of Forfeitures But that this has ever been otherwise and that the Lords Justices and other Officers here have purchased Lands in Ireland at their own Will and Pleasure needs no proof to those who have the least knowledge of this Country Is this a fair Argument against the Validity of a Statute That it hath not had due obedience rendred to it If this be Law I am afraid many of our late good Statutes have run the same fate but I never knew till now That the Peoples Obedience was an Essential part in a Statute I thought the Consent of King Lords and Commons given to it in Parliament had been enough But we will not let this Matter fall without further examining into your Argument That Statute consists of eight Chapters let us see which of those Chapters have not been received and obeyed you only mention the first viz. That the Lords Justices of Ireland and other Officers have purchased Lands in Ireland at their own Will and Pleasure as you recite it pag. 88. But the words in the Statute are these That the Justices of Ireland nor any other Officers of ours of the same Realm so long as they are in our Service there shall purchase any Land or Tenement within the List or bound of their Bailiwicks without our special Licence Which makes a great Alteration in the Matter for they might purchase Lands or Tenements both before and after they were in their Offices But we will take the Words as you give them how does it appear that this Law was not observed You say p. 89. It does not appear by any Inquisition Office or Record that any one ever forfeited on that account It may be so perhaps it was never broke and then there was no need of an Inquisition or the King might grant Licence as that Law does direct to his Justices and other Officers to purchase Lands during their being in their Offices or they might purchase them without the List or Bounds of their Bailiwicks and then the Terms of the Law were complied with But I am apt to think you will carry this farther and say That in later Years the Justices of Ireland and other the King's Officers have not taken notice of this Law perhaps so and what would you draw from this How many old Laws have we in England that are obsolete and disregarded by Time which though they fitted the Circumstances of the Times they were made in yet are not proper for our Days Witness the Statutes against going Arm'd the Statutes about Bows and Arrows and many others which were and still remain Statutes till repealed though perhaps 't will be thought hard to put them in Execution without giving publick Notice thereof sometime before to the Subject But after all how do you know but that these Officers you last mentioned may have Licences from the King to purchase Lands though I think it not at all to the matter whether they have or no. But to proceed That Statute as I said before consists of Eight Chapters you have taken notice only of the First therefore we will come to the next Chapter of that Statute The Title is In what Case only Purveyance may be made in Ireland Is that observed in Ireland or do the Justices or other the King's Officers by colour of their Offices take Victuals or any other things of any Person against his Will contrary to that Chapter The Third Chapter is about Transporting Merchandizes out of Ireland Do the Justices or any of the King's Ministers by colour of their Offices Arrest the Ships or other Goods of the People of Ireland The Fourth settles The Fees of a Bill of
established these Acts under-written willing and commanding that from henceforth they be firmly observed within this Realm The Preamble of the Statute of Westminster made the 13th of Edward I. runs thus Whereas of late our Lord the King in the Quinzim of St. John Baptist the Sixth Year of his Reign calling together the Prelates Earls Barons and his Council at Gloucester and considering that divers of this Realm c. ordain'd certain Statutes right necessary and profitable for his Realm whereby the People of England and Ireland being Subjects unto his Power have obtain'd more speedy Justice c. Our Lord the King in his Parliament after the Feast of Easter holden the 13th Year of his Reign at Westminster caused many Oppressions of the People and Defaults of the Laws for the accomplishment of the said Statutes of Gloucester to be rehearsed and thereupon did provide certain Acts as shall appear here following Here I cannot but observe That the King and Parliament of England thought Ireland a part of this Realm and subject to their Legislative Power and that it was concerned in the Statutes of Gloucester before-mentioned though not named therein Now whose Judgement shall we take the King and Parliament who lived in those Days or yours Four hundred Years afterwards I shall only mention one more which is in the 21 Edward 1. we find there a Statute made De iis qui ponendi sunt in Assisis and at the end thereof I find this Sect. 6. Rex c. quia ad communem utilitat◠〈◊〉 â—opuli nostri Regni de communi Concilio ejusdem Regni Statuerimus c. Now all these are accounted Statutes or Acts of Parliament and so called in the Books which shows that it is not the Name but the Modus of passing them which is the essential part of a Statute Law Besides if you please to peruse your own Quotations p. 48 and 49. you there acknowledge the Parliament to be called Generale Concilium Commune Concilium Great Council or Parliament I now come to your last Argument against this Statute p. 89. That King Edward I. held no Parliament in the 17th Year of his Reign This seems very doubtful even to your self for it follows If this were a Parliament this Ordinatio pro Statu Hiberniae is the only Act thereof that is extant and may not that be Henry III. granted the Magna Charta in the Ninth Year of his Reign you allow this to be a Statute or Act of Parliament and yet we do not find any other Law past that Year and but one single Act in his Fourteenth Year One in the Ninth of Edward I. and many other Instances may be made of this nature But after all I do not see how the stress of the Matter lies on this Foundation suppose this to be no Act of Parliament as you say what then shall we want Antient Precedents which name Ireland What think you of the Statute of Merchants which I have mentioned before 13 Edw. 1. this was made before that of the Seventeenth Year which you so much contend about and Ireland is expresly named in that Statute The Sum is this you say it is not a Statute I say it is and the Books call it so I have also given my Reasons why I think it so not that I think it material to our Debate but because if Statutes should be rejected for the Reasons you reject this I fear a great part of our old Acts of Parliament and even Magna Charta it self must be expunged out of the Statute Book I come now to your third Antient Precedent the Staple Act made in the Second of Henry VI. Cap. 4. This is expired so I find only the Title in the Statute Book which is this All Merchandizes of the Staple passing out of England Wales and Ireland shall be carried to Calice as long as the Staple is at Calice The Reason you give why this Law doth not bind Ireland is grounded on the Opinion of the Judges of England whereof you give this account p. 90. That by the Year Book of the Second of Richard III. it doth appear that the Merchants of Waterford having Ship'd off some Wool and consign'd it to Sluce in Flanders the Ship by stress of Weather put into Calice and Sir Thomas Thwaits Treasurer there seized the said Wool as forfeited whereupon a Suit was commenced between the said Merchants and him which was brought before all the Judges of England into the Exchequer-Chamber where the Questions were two one of which was Whither this Staple Act binds Ireland I have Abbreviated what you Write but I think I have done it fairly to which the Judges gave this Answer p. 91. Quod terra Hibernia inter se habent Parliament ' omni modo Cur prout in Angl. per Idem Parliament ' faciunt Leges mutant Leges non obligantur per Statuta in Anglia quia non hic habent Milites Parliamenti c. But in p. 92. you confess from the Year Books of 1 Henry 7. That when the aforesaid Case came a second time under the Consideration of the Judges in the Exchequer-Chamber we find it Reported thus Hussy the Chief Justice said That the Statutes made in England shall Bind those of Ireland which was not much gainsaid by the other Judges notwithstanding that some of them were of a contrary Opinion the last Term in his Absence What a strange Argument is this The Judges say you gave their Opinion who were those Judges You name only Hussy and he was against it But you say all the Judges of England in the former Term it could not be all because Hussy was not there and afterwards he gave his Opinion quite contrary And as you confess p. 92. all the Judges submitted to it so that here is the Judges Opinion at one time against their Opinion at another and will you bring this to overthrow the Authority of the Legislative Power of England But suppose Hussy and the rest of the Judges had agreed with the first Opinion what would you draw from this Have the Judges Power to question the Parliament in the Exercise of their Legislative Authority I know they are often advised with in the making of an Act but when it is once past I presume their business is to give their Judgments according to it or to Explain it where the Sence is doubtful but not to go against the express Words of an Act much less to question the Parliaments Power to make it Your second Argument against this Statute's binding Ireland is a Note in a Book made by Brook in Abridging this Case That Ireland is a Kingdom of it self and hath Parliaments of its own p. 92. Certainly you have very light Thoughts of Parliaments if you think that Notes in Books should abridge their Power The third is a Comment of your own on the whole p. 93. wherein you draw a Comparison of Ireland with Scotland and conclude That
all was well in Ireland p. 44. you say That on the Death of King Richard I. King John in the Twelfth Year of his Reign went again into Ireland Anno 1210 and then it was that Mat. Paris saith the 20 Reguli came to him to Dublin and did him Homage p. 45. you say That Henry III. came to the Crown Anno 1216 and the same Year sent over the Charter from Bristol the 12th of November And in p. 46. you say He sent them another in the February following from Gloucester p. 52. you say That Henry III. in the Twelfth Year of his Reign sent over a Writ to Hugo de Burgh to Summon the States of Ireland In all this time we hear nothing of Wars Tumults Heats or Rebellions but quite contrary For p. 49 and 50. you set forth a Writ which you have from Mr. Petit or rather a Letter written by King Henry III's Queen Anno 38. of his Reign wherein she desires his Subjects of Ireland to assist the King with Men and Money to defend his Land of Vascony which was then Invaded by the King of Castile Thus far I quote you from your own Book and now you tell us p. 96. That the People of Ireland could not Assemble with conveniency to make Laws at Home by reason of Heats of Rebellions or Confusion of Times and that this caused them to come to England to do it as appears by the Writ you mention p. 95. which was in the Ninth Year of Edward I. who succeeded his Father Henry III. Really Sir you have given me so much trouble to run over your Book again to shew how inconsistent you are in your Discourse about this Matter that I could almost be angry with you But I am willing to take this pains not to convince you that you are in an Error I imagine that will be labour lost a Gentleman of your Parts must needs know it already but to make it plain lest any Body else should be drawn aside by what you write Well then on the Credit of this Writ I will grant you that Ireland came to England for Laws in the Ninth of Edward I. And then I hope you will not oppose this Ancient Precedent because it is of your own producing But to get clear of this you tell us p. 96. That these Laws were made by your own Representatives And to prove that this was so in the Reign of Edward III. for you say its plain 't was so in Edward I.'s time you tell us There were Knights Citizens and Burgesses elected in the Shires Cities and Buroughs of Ireland to serve in Parliament in England and so served accordingly And to prove this you tell us p. 97. That amongst the Records of the Tower of London Rot. Claus 50 Edw. 3. Parl. 2. Membr 23. We find a Writ from the King at Westminster directed to James Butler Lord Justice of Ireland and to R. Archbishop of Dublin his Chancellor requiring them to issue Writs under the Great Seal of Ireland to the several Counties Cities and Boroughs for satisfying the Expences of the Men of that Land who last came over to serve in Parliament in England And in another Roll the 50 Edw. 3. Memb. 19. on complaint to the King by John Draper who was chosen Burgess of Cork by Writ and served in the Parliament of England and yet was denied his Expences by some of the Citizens care was taken to reimburse him Pray what use will you make of these Records to prove that the Kingdom of Ireland is not subject to the Legislative Power of the Parliament of England I think you have brought the Matter home and have mistaken the side for instead of proving that it is not you have proved positively that it is and particularly that from the Ninth of Edward the First to the Fiftieth of Edward the Third the Representatives of Ireland came over to sit in the Parliament of England and how long before or how long after they did so I cannot tell The Writ you mention of Edward I. hath reference to Statutes made before that time at Lincoln and York which I judge must be in the Days of Henry II. Richard I. or King John because I do not find that any Parliament was held in either of these Places from the beginning of our Statute-Books and then where is your separate Kingdom of Ireland under King John And why have you so often asserted That there was never any Law made in England to bind Ireland till the Modern Instances you mention Pray what means all the Clamour you have made against our late Kings and the Parliaments of England for infringing your Liberties and breaking through the very design of setling Communities and putting you in a worse Condition than you were in the state of Nature You are very much beholding to the ingenious Mr. Lock for the fineness of your Argument about the State of Conquest c. in the former part of your Book which I do not at all blame you for because I think no Man can handle a Subject smoothly whereon he hath treated that doth not follow his Copy but I blame you for not applying those excellent Arguments more fitly But to return to the Matter P. 58. You confessed there was no Parliament in Ireland before King Henry III.'s time and you have not any where shewn that it was settled there during his Reign and now you acknowledge that Ireland sent Representatives to sit in the Parliament of England in the Reigns of Edward I. Edw. II. and Edward III. his Successors where Laws were made to bind it Pray then why do you exclaim against their putting this Power in Execution still To this you say p. 97. It must be allowed that the People of Ireland ought to have their Representatives in the Parliament of England And this you believe they would be willing enough to embrace but this is a Happiness you cannot hope for I have before told you that you are represented there already but you are willing some Representatives should come over from Ireland to sit there you say they did so once and you are willing they should do it again pray why did you not continue that great Happiness you now so much prize To this you Answer p. 98. This sending of Representatives out of Ireland to the Parliament in England on some occasions was found in process of time to be very troublesome and inconvenient I cannot but observe what a Hodge-podge you would make by the wrong Inferences you endeavour to draw from every thing only because you would cloud the Truth you allow you once sent Representatives to the Parliament here but you would now have this to be only upon some occasions I hope it was not on occasion of Wars and Tumults during the prosperous Reigns of Edw. I. and Edw. III. if it was you do not tell us what Wars and Tumults they were 'T is much that Edward III. who extended his Arms to
France and Scotland could not keep in quiet his County of Ireland as it is called in the Statute 1 Hen. 6. quoted before and now you tell us the Reason why it was then called so viz. because they formerly sent Representatives to serve in Parliament here If this was not the Reason why they sent them only on some occasions and you give no other then I am apt to think either that they sent none at all or that they sent them to every Parliament for I can't believe that Laws were made in England and in Ireland at the same time by two Parliaments that stood on equal footing one with the other This is not probable for what if their Laws should clash the Parliament of England would not submit to have their Laws repealed by the Parliament of Ireland that were unjust because the same Power that made them was not at the repealing of them Ireland had Representatives in the Parliament of England but England had not in the Parliament of Ireland Nor is it probable That the Parliament of Ireland would have stoopt to the Parliament of England if they had any colourable Argument of their side for you see how loath they are to do it now though they have none at all at least you who have undertaken this Contest in their favour have produced none but you have fairly quitted the Field and confest That Ireland did formerly for 100 years together send their Representatives to the Parliament of England Well then to return to this Happiness why did not Ireland continue it You tell us pag. 98. They found it very troublesome and inconvenient What makes you then to desire it again I do not see how it will be less troublesome now and I assure you it will be attended with as many inconveniencies if not to you in Ireland yet to us in England and I hope you will consider your Neighbours inconveniencies as well as your own But as inconvenient and troublesome as it is you are willing to have this Happiness restored Here the nature of the Argument is altered for now it is not Whether the Parliament of England have Power to make Laws to bind Ireland and whether what they have done in that Matter for 500 years past hath been done de jure but whether Ireland shall be restored to its former Priviledges of sending Representatives to sit in the Parliament of England I confess I have no Authority to treat with you about this Affair it is reserved for a higher Power to determine But suppose you are denied to have this Happiness restored the question then will be Whether you have any wrong done you If I was to be Judge I should give it against you For seeing you have given up your Rights so many hundred years since and submitted your selves to your English Representatives without sending any from Ireland I do not see how you can insist on it now And in this I believe you have Neighbours Fair for I doubt not there are many Corporations both in England and Wales who either did send more Members to Parliament in former days or might have done it had not the Charge or Trouble put them on seeking to be excused Particularly I observe a Clause to this purpose in the Charter granted to the City of Bristol by King Edward III. when he made it a County whereof I have before me an English Copy which runs thus And moreover we have granted for us and our Heirs to the said Burgesses and their Heirs and Successors for ever that the said Town of Bristol by any means shall not be charged to send to the Parliament of Vs or our Heirs but only two Men as heretofore hath been accustomed the which two Men as well Knights of the County of Bristol as Burgesses of the Town and Borough of Bristol for the same Town and Borough shall be bound to make answer Which shews that this was then granted as a favour to that City at their request to avoid the trouble and charge of sending two Knights as well as two Burgesses to represent them in Parliament which if they would now retrieve they cannot And this was about the same time that you say Ireland being discouraged by the Troubles and Inconveniencies that attended it forbore to send Representatives to sit in Parliament in England But whatever was the Reason that made them do this I cannot agree with what you say pag. 98. This we may presume was the reason that afterwards when times were more settled we fell again into our old Track and regular course of Parliaments in our own Country Pray what Regular Course of Parliaments do you mean you have not yet proved that you ever had any but rather confessed the contrary you say you sent Representatives to sit in the Parliament of England But what then Does it therefore follow that you might leave that off and set up Parliaments of your own at your pleasure No sure you might quit your Priviledges of being part of the Parliament of England but it doth not therefore follow that you had Power to establish a Parliament in Ireland independent on the Parliament of England no more then if the People of Cornwal being unwilling to put themselves to the trouble of attending the Parliament at Westminster should therefore without farther warrant erect one of their own nearer home and then expect it should be clothed with full Power and be Superiour to that of Westminster with relation to what concerns the County of Cornwal For to talk of your Old Track and Regular course of Parliaments after what you have said on this Matter is a Jest and deserves no answer We are now come to your fifth Particular pag. 115. The Opinions of the Learned in the Laws relating to this Matter The first you mention is the Lord Chief Justice Cook 's in his Seventh Report in Calvin's Case pag. 116. and he is against you But you blame him for his unfaithful broken Citations which I agree with you to be an ill way of deceiving a Reader into a good opinion of an Argument but must tell you that you have been too frequently guilty of the same Fault in this Book yet I cannot see how the Lord Chief Justice Cook hath been unfaithful in this his Citation for I take the whole sence of the Transcript you mention to be included therein You say That after he had declared Ireland to be a Dominion separate and divided from England for which he quotes out of the Year-Books the Case of the Merchants of Waterford and the proceedings thereon which you have mentioned pag. 91. He concludes Nostra Statuta non ligant eos c. yet with this Parenthesis which is to be understood unless they be especially named What you say against this his Opinion p. 117. That it is down-right Magisterial and point blank against the irrefragable Reason of the Book he quotes I think will appear to be very severe if the Point he was
then upon be considered which was this as I find it in his Abridgment pag. 271. R. C. by his Guardian bringeth an Assize the Defendants say the Plaintiff ought not to be answered quia est Aliagena natus 5 Novemb. An. Dom. Regis Angliae c. tertio apud E. infra Regnum Scotiae ac insra ligeanciam Domini Regis Regni sui S. ac extra ligeanciam Regni sui Angl. Here the Debate being about a Post natus in Scotland Sir Edward Cook brought the Quotation you mention for the sake of the last words thereof sed personae eorum sunt subjecti Regis sicut Inhabitantes in Calesia Gasconia Guyan who had been ever accounted Denizens and makes the Note you mention viz. which is to be understood unless they be especially named on the other part of that quotation Nostra Statuta non ligant c. because he would not be thought of Opinion with the former Judges Et non obligantur per Statuta in Anglia which you mention pag. 91. And this having no relation to the Case he was then upon he thought it needless to give the Reasons for this his dissent in Opinion from them which makes you call him Magisterial c. But afterwards pag. 117. you say that in another place of the same Report he gives this colour of Reason for his former Assertion That though Ireland be a distinct Dominion from England yet the Title thereof being by Conquest the same by Judgment of Law might by express words be bound by the Parliaments of England From this you would raise an Argument p. 118. between the Opinion given by the Judges in the Exchequer Chamber pag. 91. and the now Opinion of the L. Chief Justice Cook But I shall leave you to reconcile those venerable Judges and proceed to my own Argument because I think I have already spoken to every thing you therein mention only I can't but stand amazed at your what shall I call it in this Assertion pag. 118. I challenge any Man to shew me that any one before him or any one since but from him hath vended this Doctrine when your self had told us before pag. 92. That the Lord Chief Justice Hussy and the other Judges were of the same Opinion when the Case of the Merchants of Waterford which is the same you now quote was argued the second time in the Exchequer Chamber And in pag. 80. you tell us This was a Doctrine first broached directly by Will. Hussy Lord Chief Justice of the King's Bench in England in the first year of Henry VII and of late revived by the Lord Chief Justice Cook I wonder how you can make such bold Challenges which need no farther trouble then perusing your own Book to answer I hope I have now vindicated my Lord Chief Justice Cook whose Name you say pag. 116. is of great veneration with the Gentlemen of the Long Robe if so I may likewise hope they will give me thanks for doing it so many years after his death The next Case you mention is that of Pilkinton 20 Hen. 6. pag. 122. This you say is for you It is too long to transcribe but the Substance of it is this There were Letters Patents granted by the King to A. for an Office in Ireland formerly granted to P. by the same King's Letters Patents whereupon P. brings a Scire Facias against A. to shew cause why his Letters Patents should not be repealed A. pleads That Ireland had time out of mind been a Land separate and distinct from England was govern'd by its own Customs had a Parliament and made Statutes and by one of those Statutes P. had forfeited his Office Hereupon P. demur'd in Law and it was debated by five of the Judges of England who differ'd in their Opinions about it Well what will you infer from this doth any one doubt whether Ireland hath a Parliament and Customs among themselves that govern them Did the Jurisdiction of the Parliament of England come any way to be called in question here if not 't is nothing to our Matter Yes you say pag. 124. Two of the Judges said That if a Tenth or a Fifteenth be granted the King by the Parliament of England that shall not bind Ireland c. Perhaps it may not 't is according as the Act is worded we see our ordinary Acts for raising Taxes are not extended to Ireland But doth this show that the Parliament of England hath not Power to make Laws which shall bind Ireland Besides suppose two Judges of five had positively said they could not was their Opinion to be taken against that of the Parliament of England shewn by their constant practice for Five hundred years I profess I cannot see how this Case reaches the Matter we are upon As to the Merchants of Waterford's Case pag. 125. it hath been spoken to before so I shall pass it by now The next is the Prior of Lanthonies in Wales 5 Hen. 6. This you say is for you pag. 125. I think 't is not but it lyes on me to give my Reasons therefore I will abreviate it The Prior of Lanthony brought an Action in the Common Pleas of Ireland against the Prior of Mollingar Judgment went against the Prior of M. who brought a Writ of Error in the King's Bench of Ireland where the Judgment was affirmed He then appeals to the Parliament of Ireland who revers'd both Judgments The Prior of L. removes all into the King's Bench in England but the King's Bench refused to intermeddle having no Power over what had passed in the Parliament of Ireland he then appealed to the Parliament of England where you say it doth not appear by the Parliament Roll that any thing was done on this Appeal save receiving the Petition Well what would you draw from this I think it proves nothing to our Matter if it doth the Conclusion must be against you For it appears by this quotation That the Prior of L. two hundred and seventy years since thought that an Appeal lay from the Parliament of Ireland to the Parliament of England and it doth likewise appear That the Parliament of England received his Petition But as to your Inference against the Power of the Parliament of England because nothing was done therein it may as well be concluded That they cannot judge Appeals brought before them by a Writ of Error out of the King's Bench of England because many times no Proceedings follow thereon which every Body knows may be let fall after the Petition is received at the Pleasure of the Parties concerned As to what you say of the Civil and Ecclesiastical State of Ireland p. 127 128 129. I think I have given a full Answer to it already so shall not repeat I will only add That 't is a wrong method to draw Arguments against the Power of the Parliament of England from Acts made by the Parliament of Ireland No doubt the Titles of those Kings and Queens you
Grace The Fifth settles The Marshal's Fee in Ireland Perhaps you will say these Officers take more than their Fees therefore the Statute is no Act of Parliament Very probable they do that is a general Distemper where Offices have Fees annexed to them and yet it may be an Act of Parliament still The Sixth Chapter its Title is In what Cases the Justices of Ireland may grant Pardon of Felony and where not The Title of the Seventh Chapter is By what Seal Writs in Ireland shall be Sealed The Eighth and last is Adjournment of Assizes in Ireland Are these Parts of the Statute observed in Ireland or no I ask you this because if any one part is received the whole is received Obedience given to any part of this Law acknowledges the Jurisdiction of the Law-makers and you insist only on the First Chapter as if the rest were no part of the Law That this Ordinatio pro Statu Hiberniae is really in it self no Act of Parliament but meerly an Ordinance of the King and his Privy-Council in England I have already given you my Definition what an Act of Parliament is and if this be no more than an Order of the King and his Privy-Council I must be of your Mind Let us therefore enquire farther into this matter you say it appears to be no otherwise as well from the Preamble of the said Ordinance as from the Observation likewise I assure you if this Proof hath not more weight in it than the other I shall think it an Act of Parliament still Let us therefore see what the Preamble is which I find to be this Edward by the Grace of God King of England Lord of Ireland Duke of Aquitain to all those who shall see or hear these Letters doth send Salutation Know you That for the Amendment of the Government of our Realm of Ireland and for the Peace and Tranquillity of our People of the same Land at Nottingham the Octaves of St. Martin in the Seventeenth Year of our Reign by the assent of our Council there being the points hereafter mentioned be made and agreed upon to the intent that they may be firmly observed in the same Realm Where please to note that the Words are not by assent of our Privy-Council but of our Council by which name the Parliament of England is often called It would be endless to give and account of the different Stiles under which Acts of Parliament past in those Days sometimes in the Name of the King only sometimes of the King and Great Men sometimes of the King and his Council sometimes of the King and his Common Council and sometimes of neither as he who will be at the trouble to inspect our Statute Books may see I will give some Instances instead of many The great Charters are only in the King's Name Henry by the Grace of God King of England c. and so Edward by the Grace of God King of England c. The Statute in the Twentieth of Henry III. made at Merton hath this Preamble It was provided in the Court of our Sovereign Lord the King holden at Merton on Wednesday the morrow after the Feast of St. Vincent the Twentieth Year of the Reign of King Henry the Son of King John before William Archbishop of Canterbury and other his Bishops and Suffragans and before the greater part of the Earls and Barons of England there being assembled for the Coronation of the said King and Helianor the Queen about which they were all called where it was treated for the Commonwealth of the Realm upon the Articles under-written Thus it was provided and granted as well of the aforesaid Archbishop Bishops Earls and Barons as of the King himself and others By which it appears that in those Days when the Great Men who were the Barons or Freeholders of England were called together they made Laws and did not so much regard the Stile as that they were made by a general Consent The Statute 51 Henry 3. Sect. 1. begins thus The King to whom all these Presents shall come greeting We have seen certain Ordinances c. Stat. 5. of the same Year begins thus The King commandeth that all manner of Bailiffs Sheriffs c. Stat. 6. of the same Year begins thus If a Baker or a Brewer be Convict because he hath not c. The Preamble of the Statutes 52 Henry 3. made at Marlbridge 18. November 1267. runs thus In the Year of Grace One thousand two hundred sixty seven the Fifty-second Year of the Reign of King Henry Son of King John in the Utas of St. Martin the said King providing for the better Estate of this Realm of England and for the more speedy Ministration of Justice as belongeth to the Office of a King the more discreet Men of the Realm being called together as well of the Higher as of the Lower Estate It was provided agreed and ordained That whereas the Realm of England of late had been disquieted with manifold Troubles and Dissentions for Reformation whereof Statutes and Laws be right necessary whereby the Peace and Tranquility of the People must be observed wherein the King intending to devise convenient Remedy hath made these Acts Ordinances and Statutes underwritten which he willeth for ever to be observed firmly and inviolably of all his Subjects as well High as Low The Preamble to the Statutes made the Third of Edward I. runs thus These be the Acts of King Edward Son to King Henry made at Westminster at his Parliament General after his Coronation on the Monday of Easter Utas the Third Year of his Reign by his Council and by the Assent of Archbishops Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm being thither Summon'd because our Lord the King had great Zeal and Desire to redress the State of the Realm in such things as required Amendment for the Common Profit of Holy Church and of the Realm and because the State of Holy Church hath been evilly kept c. the King hath Ordained and Established these Acts under-written which he intendeth to be necessary and profitable to the whole Realm The Preamble to the Statute made the Fourth of Edward the First call'd the Statute of Bigamy runs thus In the Presence of certain Reverend Fathers Bishops of England and others of the King's Council the Constitutions under-written were recited and after heard and published before the King and his Council Forasmuch as all the King's Council as well Justices as others did agree that they should be put in Writing for a perpetual Memory and that they should be stedfastly observed The Preamble to the Statutes made at Gloucester 6 Edw. 1. runs thus For the great Mischiefs Damages and Disherisons that the People of the Realm of England have heretofore suffer'd through default of the Law that fail'd in divers Cases within the same Realm Our Sovereign Lord the King for the amendment of the Land c. hath provided and
mention had been good to Ireland though not recognized in the Parliament there And as for the Church of Ireland its subjection to the Parliament of England doth not at all show that Holy Church is not free for the Freedom there mentioned doth not imply an exemption from the Parliaments Power no more then the Grants and Charters made to the Church of England discharge her from the like Subjection and yet she is declared free by Magna Charta and I hope you do not believe that the Kings of England gave greater Immunities to the Church of Ireland then they did to the Church of England The next Case you mention is pag. 129. 14 Edw. 2. The Parliament at Westminster you say moved the King 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 enjoyed the same Whence you conclude p. 130. That the Parliament of England did not take upon them to have any Jurisdiction in Ireland for then they would have made a Law for Ireland to this effect A strange Inference Is it not known that they did make Laws to bind Ireland long before Edward the Second's time You your self confess p. 96. That Ireland sent Representatives to sit in Parliament here in the Reign of Edward the First Besides the Quibble you make on the word moved which is only a mannerly Expression used by your Author between the King and his Parliament suppose he had said they represented it to the King had this altered the matter But you say They made no Law to this effect themselves pray what need was there of a new Law when you have so often told us before That by the original Compact settled in Ireland on their first Submission to the Kings of England they were to be governed by the Laws of England whereof this was part In your former Case of Coparcencers p. 87. you say The Justice of Ireland dispatch'd four Knights to the King in England to bring a Certificate what was the Common Law of England in that Case here the Parliament of England signifie to the King what was the Rights of the Irish Natives of Ireland all the difference is the former might not be stated before and therefore required an Act but this you say was and therefore required none But still methinks there is something more under this Head The Parliament say you moved the King that the Irish Natives of Ireland might enjoy c. which shews they had a Jurisdiction there else they would never have concerned themselves where they thought they had nothing to do It likewise shews that the original Compact above-mentioned was made with their advice and consent otherwise why should they concern themselves to see it put in Execution I come now to your next Case pag. 130. viz. A Writ of Error 's lying from the King's Bench of England on a Judgment given in the King's Bench in Ireland from whence you say it is insisted on that there is a subordination of the Parliament of Ireland to the Parliament of England pag. 131. This you acknowledge to have been the Constant practice But you say first This is grounded on an Act of Parliament made in Ireland which it seems is also unluckily lost How then do you know there was such an Act and if you do not know it how come you to offer your bare Surmises as Arguments against the Power of the Parliament of England But secondly you say on those Removals by Writs of Error the Judges in England always judge according to the Laws and Customs of Ireland You mention several Cases wherein the Errors assigned were words used in Ireland but not in England What is all this to the purpose if things are called by one name in Yorkshire and another in Cornwal shall they not pass in Yorkshire by the names used there and in Cornwal by the names whereby they are commonly called there The Conclusion you draw from hence pag. 133. seems to me very strange viz. Hence 't is manifest that the Jurisdictions of the King's Bench in England over a Judgment in the King's Bench of Ireland does not proceed from any subordination of one Kingdom to the other Pray from whence is this made manifest to any Body else besides your self Does it appear that because Writs of Error have been brought from the King's Bench in England on Judgments given in the King's Bench in Ireland that therefore Writs of Error do not lye from the one Bench to the other and if they do does not this show a Subordination of the one Court to the other and consequently of the one Kingdom to the other But you say This Subordination of the Court of King's Bench in Ireland doth not proceed from a Subordination of the Kingdom but from some other reason which you will endeavour to make out I am sure your third Reason pag. 133 134. viz. the Case of Coparceners cannot be it I have spoken to it before all I shall now add is That you must not bring Arguments against the Power of the Parliament of England drawn from reasonable Imaginations as you call them I cannot imagine what Reasons you can offer from the Stories you tell there either against the Authority of the King's Bench or more especially against that of the Parliament of England All that follows p. 134 135. is only perhaps and it may be which I am not bound to answer but with the same stile perhaps and it may not be What you alledge of certainty is That Writs of Error have lain from the King's Bench of England to the King's Bench of Ireland time out of mind which seems to me proof enough for it and if you have no better Argument against the Jurisdiction of that Court then this I am afraid you will lose your Labour with any English Reader But you proceed to your fourth Reason pag. 136. and tell us That when a Writ of Error is returned into the King's Bench of England suit is made to the King only the Matter lyes altogether before him and the Party complaining applys to no part of the Political Government of England for redress but to the King of Ireland only who is King in England Also p. 137. you say For the People of Ireland are the Subjects of the King to whom they Appeal And after that you proceed thus I question not but in former times when these Courts were first erected c. that if the King had travelled into Ireland and the Court had followed him thither erroneous Judgments might have been removed from England before him into his Court in Ireland What strange Suppositions are here have you ever seen any Precedent of this Nature If yea why did you not produce it if no why did you suppose it But admit you had produc'd such a Precedent what would it have signified more than to have prov'd that the Judges of England going over