King's Realm of England and of Ireland And it enacts the form of a Writ upon that Statute which was to be current in Ireland upon several accounts 1. By the Letter of that Law which was ordain'd for the Benefit of Merchants in Ireland as well as in England 2. If it had not been named the being transmitted to Ireland from a Parliament here was a sufficient ground for their observing it 3. Such observance was included in the terms of their Submission above one Hundred Years before 4. The Writ without any particular Provision became a legal and current Writ in Ireland by virtue of an Act of Parliament here 30 H. 3. which for the common Profit of the Land of Ireland and unity of the King's Lands provided that the Common Law Writs should have the same currency in Ireland that they have here Without enquiring what Records they have in Ireland of Statutes Staple from the 13 th of E. 1. when this Statute which settled them was sent thither 't is certain that from that time the English in Ireland were bound by it and so held to be in subsequent Statutes of this Realm confirming this Statute or supplying its defects But what pity 't is that neither Judge Bolton nor Mr. M. thought of an Act of Parliament in Ireland to confirm that Statute 12 E. 1. This was enacted in the Year 1284. which was above 350 Years before that fatal Aera of Innovations 1641 from whence it seems Calamities of all kinds are to be dated But I should think here is at least one positive Precedent before that time of an English Act of Parliament's binding the Kingdom of Ireland And to me it seems as plain that in the Judgment of the Parliament 13 E. 1. Ireland tho not named was bound by a Statute made here for which I shall refer him to the Interpretation then made of the extent of the Statutes of Gloster which had been enacted in the 6 th of that King's Reign Some would think those Statutes to have been no more than Ordinances made by the King and his Counsel only and that our Kings thus made Ordinances of that kind some may gather from Fleta who speaks of the King's Counsel in which not only erroneous Judgments were corrected but new Remedies provided yet Fleta speaks this of the King's Counsel in his Parliaments and thus tho' the Statute of Westm 2. seems to restrain the making that of Gloster to the King and his Council the Statute of Gloster it self shews that the Counsel was to be taken as acting in conjunction with the Prelates Earls and Barons and that under the word Barons the Commonalty were included as as lower Nobility or dignified by their Election to Parliament accordingly the Statute of Gloster says suitably to latter Writs of Summons the more discreet of the Kingd as well Great as Small were Summon'd So that the Statutes of Gloster were made as other Statutes 3 E. 1. by that King's Counsel and by assent of the Commonalty where the Lords were manifestly included under the word Counsel agreeably to the ancient form of Writs of error or other Writs returnable into Parliament before us and our Counsel in our Parliament or at our next Parliament after or at such a time there to do what the King shall think fit to ordain by advice of his Counsel For evidence that this did not exclude the Lords I may refer to the Roâ—â—s of Parliament of several Reigns and particularly to those of the 20 th and 21 st of E. 3. In the 20 th the Commons are desired to deliver such Petitions as were then ready to the Clerk of the Parliament which Petitions are said to be brought before the Great Men of the Counsel That they were but of the nature of a Committee to inform the King and Lords of the Bills or Petitions which came from the Commons appears by the Proceedings of the next Year when the Commons having made Petitions of an extraordinary nature the King answers He will advise with the Lords To return to the Statute of Gloster there the King by such advice as I have shewn made Laws for the amendment of his Realm and for the plenary exhibition of Right as the profit of the Regal Office requires and to remedy mischiefs dammages and disherisons suffer'd by the People of the Realm of England without the least mention of Ireland And yet we have the judgment of the Parliament in the 13 th of that King that Ireland was within the remedy of that Statute as part of the Realm of England as appears by this Preamble Where of late our Lord the King in the Quinzisme of St. John Baptist the Sixth of his Reign calling together the Prelates Earls Barons and his Counsel at Gloucester and considering that divers of this Realm were disherited by reason that in many cases where remedy should have been had there was none provided by him nor his Predeceâ—sors ordained certain Statutes right necessary and profitable for his People whereby the People of England and Ireland under his Government have obtained more speedy justice in their oppressions than they had before and certain Cases wherein the Law failed remain undetermined and some remained to be enacted that were for the reform of the oppressions of the People Our Lord the King in his Parliament after the Feast of Easter holden the 13 th of His Reign at Westminster caused many Oppressions of the People and defaults of the Laws for the supply of the defects of the said Statutes of Gloster to be rehearsed and made Statutes as will appear here following This rehearsal of the Grievances was for certain by the Petition of the Commons of this Realm and the Statutes there made as the Register of Writs has it were by the Common Counsel of the Kingdom And this Counsel not only declared Laws which were binding to Ireland but made new tho' Mr. Molineux will have it that from the time of Magna Chata to the 10 th of H. 7. no Laws were or are in force in Ireland unless allowed of by Parliament in that Kingdom except only such as are Declaratory of the Common Law of England and not Introductive of any new Law And whereas he is pleas'd to say 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 says he the Opinions of the Kings of England and their Privy Council have been otherwise I may say upon much better grounds if any King and His Privy Council did any thing to Warrant this Assertion the Judgment of E. 1. and His Council in Parliament was to the contrary and is of greater Authority And 't is to be remembred as I before shewed that
to be Governed and an assurance that they should have no Laws imposed upon them in any other manner than upon such of the English here as had no Votes in the making Laws But one end at least of the sending over that Charter must needs have been suitable to the declared end of a Subsequent sending King John's Charter when the Justice of Ireland was required to Summon not only the Great Men but the Free-holders of every County who after the Laws had been read to them were to swear to the observance of them beside which they were to be Proclaim'd in the several Counties 5. Admit the Charter sent to Ireland 1. H. 3. had given the Irish Liberty to hold Parliaments with Representatives from all parts of that Land according to the English Form This Liberty was derived from a Convention of the States of the Kingdom of England or Parliament in the Minority of a King who had no Judgment of his own was under the Government of a Subject whom the States had set over him and the Kingdom and that King was manifestly Chosen by them to the setting aside Eleanor who had the Right of Descent as far as that could avail So that the King could have no pretence to the imaginary divine Right of Succession and therefore that Charter must have been derived from the Grant of the People of England And besides the Record shews that this tho' sent by the advice of all the King 's faithful People was thought to want some Formality to make it a Parliament the Assembly in which it was advised being held by a Regent may be thought to have occasioned the reference to a greater or more solemn Council However such reference shews that 't was not their Intention to be concluded by what was then done and when a Charter is afterwards sent over in full Form then there 's not a word of Concession but an absolute Command that the Laws be publish'd and obey'd However take the Charter sent them 1. H. 3. in the utmost extent imaginable 't is not to be thought that while the English Parliament gave those of the English Pale or others in Ireland Liberty to hold Parliaments they divested themselves of that Authority by which they gave such Liberty To use the Words of the great Man Grotius Se per modum legis id est per modum superioris obgare nemo potest Et hinc est quod legum Auctores habent jus leges suas mutandi Potest tamen quis obligari suâ lege non directè sâ—d per reflectionem ex aequitate naturali quae partes vult componi ad rationem integri No Man can bind himself by way of Law that is as a Supâ—rior And hence â—tis that Law-makers have Right to change their Laws Yet one may be bound by his own Law not directly but by reflexion from natural Equâ—ty which requires the parts to be compos'd with respect to the whole 6. Admit the Charter sent 1. H. 3. being by consent of the States of the Kingdom of England should be taken for an absolute departure from Power before vested in them then it ought to be taken Strictiâ—juris and to confer no Rright beyond what is express'd And therefore 1. The Men of Ireland had a Grant only of such Liberties as were sent them distinctly reduced into Writing And unless the usual Practice of sending over the Laws made here be taken to explain this or they shew the very Charter then sent 't is to be supposed that only such Liberties were Expressed and Granted them as were proper for an Appendage to the Crown of England 2. If all King John's Charter were sent them which I may well admit according to the explanation of the following usage unless they can prove as we can here that before that time they had Common Councils of all the Land of Ireland for all Matters of Publick concern and that the Maxim here had obtain'd there Those things which concern all ought to be treated of by all the only end of Common Councils of the Kingdom of England expressed in King John's Charter being in relation to the principal Grievance about the raising of Aids to the Crown the Grants to Ireland could extend no further than a Liberty to have such a Council for the raising Aids And there 's no doubt but more Money may be rais'd by such National Consent than can be in the most Arbitrary way which abates the force of the Argument from H. 3. his desiring the Archbishops Bishops Abbots Priors Earls Barons Knights Freemen Cities and Burroughs of the Land of Ireland to Aid him as much as they could with Men and Money And hence tho' 't would have been no breach of King John's Charter for the King to raise Aids of his Tenents in Chief for making his Eldest Son a Knight without calling for them to any Council that being one of the exceptions out of the Liberties expressed in that Charter yet H. 3. writ to the Archbishops Bishops Abbots Priors Earls Barons Knights and all his Freemen of the Land of Ireland intreating them to give him such an Aid 6. After all to shew how little there is in his mighty Argument from the Writ 1. H. 3. Let him take his choice either that the English in Ireland had a Parliament granted or confirmed to them by the Charter sent along with the Writ 1. H. 3. or they had not If they had then those Laws which were made here after such Establishment in pursuance of the desire of them from Ireland shew that neither the Parliaments of England nor they of Ireland thought they had any Power to make Laws there If there was no Grant or Confirmation of any Parliament there then the Concession of English Laws and Liberties was no more than a Declaration that they should be governed by the Laws made and to be made by Parliament in England or receiv'd there by the consent of the People giving Force and Authority to their own approved Customs But since after all Mr. M.'s learned Flourishes about the Setling of Parliaments in Ireland by the Modus sent over in the time of H. 2. and subsequent Grants he admits that under the 3 Kings H. 2. King John and H. 3. and their Predecessors we must repute them to have submitted to the Laws made here in those Reigns for want of a regular Legislature establish'd among them And since whatever he admits there 's no Colour of such an Establishment by the end of H. 3. Let 's see what can be found in the next Reign E. 1. having in his absence from England upon the Death of H. 3. his Father been Elected and Declared King of England in a full Convention of the States of this Kingdom in a Writ sent by those States to Ireland 't is affirm'd that the Government of England and the Dominion or Lordship of the Land of Ireland belonged to
be executed even in Palatinates nor does it appear that the King's Council in Parliament disallowed of their Proceeding â— for nothing was done upon this â—etâ—tion any more than referring it to the next Parliament In the Case of one Allen Fitzwaren they Ordered a Writ from the Chancellor of England to require the Justice of Ireland to examine whether a Judgment about Title of Land had been given while a Man was absent and under the King's Protection requiring that if any thing was done contrary to Protection it should be amended in due manner And as the Lords in Parliament then exercis'd a Jurisdiction over Ireland it appears that out of it the High Admiral of England had Conuâ—ance of all maritime Causes as well throughout Ireland as England from the time then beyond the memory of Man which must relate to the general Prescription which is at this day as far since as the beginning of R. 1. Son to H. 2. That during the Reign of E. 1. Irel. was govern'd as a part of England or appurtenant to it and that the Laws made here wanted no other Publication than what was in obedience to the Great Seal of England affixed to Writs and Charters or Exemplifications of our Acts of Parliament by Authority from hence I think may be beyond dispute which might excuse my not dwelling upon the unfortunate Reign of E. 2. and yet there are some evidences not to be neglected of England's being then possess'd of its ancient Authority over Ireland and that tho' at least from the 3 d. of that King's Reign Mr. M. supposes that they had a regular Legislature in Ireland In the 10 th of that King the English in Ireland petitioned him for a Constitution that a Parliament should be holden there once a Year Upon this and other things then desired the King under the Great Seal of England commands the Justice of Ireland to Summon a Parliament there to consider what was sit to be done and to certifie the result into England upon which the King declared that he would by the advice of his Counsel ordain what should be sitting but nothing more appears of that matter which was the farthest step towards settling an Annual Parliament in Ireland In the 12 th of that King an Act of Parliament was made in England with this Preamble Forasmuch as divers People of the Realm of England and of the Land of Ireland have hereto fore many times suffered great Mischiefs Damage and Disherisons by reason that in some Cases where the Law failed no Remedy was ordained and also forasmuch as some points of the Statutes heretofâ—re made had need of Exposition our Lord King Edward Son to King Edward desiring that full Right may be done to his People at his Parliament holden at York the third Week after the Feast of St. Michael the 12th Year of his Reign by the Assent of the Prelates Earls Barons and the Commonalty of his Realm there assembled hath made these Acts and Statutes following the which he willeth to be observ'd in his said Realm and Land Though Ireland is in some sense part of the Realm of England yet here 't is distinguished as a Land intended to be bound tho it had no Commonalty of its own to represent it in Parliament and there is new Remedy provided where the Law had failed as well as the explaining what was Law before that part at least which creates a Forfeiture of Wine and Victuals sold by any Officer appointed to look after the Assises of them was absolutely new This Statute was transmitted to Ireland by the following Writ under the Great Seal of England and the Name of the Party who received it is enter'd upon Record Rex Cancel suo Hibern ' Salutem Quaedam statuta per nos in Parl. nostro nuper apud Ebor ' convocato de assensu Prel Com. Bar. totius Communitatis regni nostri ibid ' existentis ad Commun util regni nostri ac terrae Hibern ' edita vobis sub sigillo nostro mittimus consignata Mandantes quod Stat illa in dicta Cancel lariâ custodiri ac in rotulis ejusd Cancel irrotulari sub sigillo nostro quo utimur in Hiberniâ in forma patenti exemplificari ad singulas placeas nostras in ter praed singuloâ— comitat ejusd ter mitti facias brevia nostra sub dicto sigillo minist nostris placearum illar Vicecom dict Com. quod statuta illa coram ipsis publicari ea in omnibus singulis suis artic quantum ad eor singulos pertinet â—irmiter faciant observari Teste R. apud Clarendon 10 die Sept. An. quarto decimo The King to his Chancell of Ireland Greeting We send you under our Great Seal certain Statutes made by us in our Parliament lately called together at York with the Assent of the Prelates Earls Barons and all the Commons of our Kingdom there assembled for the Common Vtility of our Kingdom and Land of Ireland Commanding you that those Statutes be kept in the Rolls of the said Chancery to be enroll'd and exemplified in the Form of a Patent under our Seal which we use in Ireland and thaâ— you cause it to be sent to every one of our Places in the said Land and every County of the same And our Writs under our said Seal commanding our Officers of those Places and Sheriffs of the said Counties to cause those Statutes to be published before them and in all and singular their Articles which to every one of them appertain to be firmly observ'd Teste the King at Clarendon the 10th of Sept. in the 14th of his Reign In the same Roll there 's another Writ of the same Form dated at Nottingham 20 Nov. sending to the Chancellor of Ireland the Stature of York and another made before at Lincoln These Entries explain the general Transmissions and shew what was to be done by the Justice of Ireland in order to the publication of Laws made in Parliaments here and sent to him but yet he had no need nor authority to call a Parliament in Ireland for the publishing any Law made here unless particularly required under the Great Seal of England Yet I cannot but admire the force of Mr. M's Imagination in framing an Argument on that very Year that those Statutes were sent to Ireland That the Parliament of England did not take upon them to have any jurisdiction in Ireland because the King sent his Letters-Patents to the Lord Chief Justice of Ireland commanding that the Irish Natives might enjoy the Laws of England concerning Life and Member to which he had been moved by his Parliament at West-minster which is as much as to say they used no Jurisdiction because they did That after this time that King and his Parliament exercised Jurisdiction over Ireland appears by the Ordinance made for the State of Ireland in a Parliament held on the Octaves of St. Martin in the
Kingdom of England neither was this any diminution to the Prerogative of the Crown The instance of Chester I may well bring to this point being authorized by the Learned Judg Shardlow in the time of E. 2. In an Action of Debt in the King's-Bench here upon a Bond seal'd at Chester that learned Judg says Chester is out of our Jurisdiction here insomuch that there is not any Minister in that County answerable here for what he has done Of a Deed done out of the Jurisdiction here or out of the Realm as at Paris or elsewhere beyond Sea I ought not to answer The Counsel urges that the Power here extends throughout the Realm of England and to a Deed done within the Realm of England you ought to answer and Chester is within England But Shardlow insists upon his former Judgment and adds IRELAND IS WITHIN THE REALM and to a Deed committed there I shall not answer here Also Duresm is within England yet I shall not answer at all here because the Court cannot try the Fact if denied This shews plainly that at that time Ireland was as much part of this Realm as Chester that the distinction of Jurisdictions was not for want of Superiority This has been maintain'd over Chester and Ireland by Writs of Error upon Judgments in Law The reason of which is given by Chief Justice Vaughan that otherwise they may insensibly alter the Law appointed or permitted or give judgment to the lessening the Superiority Mr. Molineux will have it th◠this removal of a Judgment from the King's Bench of Ireland by Writ of Error into the King's Bench of England dos not infer the subordination of Ireland to the Kingdom of England but that this was a method appointed by an Act of Parliament of Ireland which is lost among a great number of other Acts which they want for the space of 130 years at one time and 120 a◠another 'T is easily supposed by him that they had Parliaments of their own for the most of those times but others will believe that they were generally governed by the Laws of England according to the Tenour of their submission to H. 2. and the interpretation then put upon that submission But methinks the force of his Argument in relation to the ordinary Jurisdictions the King's Bench of England exercises over that of Ireland is not to be fear'd He is pleased to say erroneous Judgments might have been removed from England into the King's Court in Ireland for so certainly it must be since the Court travelled with the King For which I need only mind him of his own quotation of Sir Richard Pembrough's Case according to which for the King to have required the attendance there of the Tenants in chief who were the Judges in his Court here would have bin a banishment But 't is certain this could be no part of their Duty declared by the constitutions of Clarendon 10 H. 2. in affirmance of the antient customs of the Realm of England under that clause which requires 'em to be at the Trials and Judgments of the King's Courts Besides I shall shew that the King's Court in England which when not meant of the Parliament did manifestly in those antient times relate either to a Counsel chosen in Parliament and acting out of it by Authority from thence or to the Body of the Tenants in chief the Great Lords for whose easing themselves of such troublesome attendances the later Jurisdiction of the present King's Bench has sprung up was possess'd of the Superiority of ordinary Jurisdiction over Ireland before Mr. M. can shew that they had any Acts made in Ireland of any kind except that wherein they first gave themselves up to obey and depend on the English Legislature and unless they can produce Acts of their Parliaments for raising Aids to the Crown of England In the 37 th of H. 3. one Baret complain'd to the King of injustice done him by Justices itinerant at Limbrick Upon which the Justices of Ireland were commanded to send the Record before the King Where the Record was commanded hither per saltum without any regard to the King's Bench of Ireland And another Record in the same Year before Shardlow and other Justices at Dublin as I take it of the Common Pleas there was by Writ of Error from hence transmitted to the Justice of Ireland Without which it seems he was then held to have no Authority to proceed in Ireland In the 20 th of E. 1. a Writ of Error had removed out of Ireland a Record of a Judgment of Felony Which indeed was remanded not for want of Jurisdiction to correct the Error of the Judges in Ireland But 1. Because there was no notice to the King's Attorney General for Ireland or at least he did not attend 2. Because 't was a question of Fact Quia nullus venit ex parte Regis ad sequendum pro ipso qui veritatem sciverit ideo haec non potest ad examinationem set magis expedit domino Regi quòd in partibus Hiberniae ubi feloniae praed perpetrari debent examinentur modo debito terminentur Because no body who may know the truth comes of the part of the King to prosecute for him Therefore this cannot proceed to examination but 't is expedient for the King that the said Felonies should be examined and duly determined in Ireland where the said Felonies are suppos'd to have been committed However Mr. M. conceives it manifest that the Jurisdiction of the King's Bench in England over a Judgment in the King's Bench of Ireland dos not proceed from any subordination of one Kingdom to the other because the Judges in England ought and always do judg 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 1. 'T is evident that the Judges neither will nor can judg according to any Law or Custom of Ireland which is contrary to the Rules of our Law or which has not been allowed there as no way prejudicial to the Law here According to his instance of a Declaration for an Acre of Bog a word not known in England but well enough understood in Ireland Which I may answer with a parallel case lately adjudged in the Exchequer of England One having spoken scandalous welsh words in Wales or in a part of England where the Welsh Tongue is used was libel'd against in the Ecclesiastical Court there Upon which the Court of Exchequer was moved for a Prohibition because the Words were insensible and of no signification But no Prohibition was granted because they were understood where they were spoken And thus 't is in relation to the particular Instances of Mannors or inferiour Courts Therefore 2. By the same reason that the judging according to the Law used in Ireland would
him by Hereditary Succession not that he was held to be King by a meer Right of Descent but as the Ritual of the Coronation of H. 1. and the Writ for Proclaiming the Peace of E. 1. in England and Authors of the time shew the Election of the States of England placed him in the Inheritance of the Crown therefore the States of England declare to the Subjects of Ireland that they were bound to take the like Oath of Allegiance as the English had done and this is required of them by the States here under the Great Seal of England nor is there colour to believe that there was any Summons to Ireland for any from thence to come to that Conâ—ention nor indeed was there time for such Summons and return before that meeting notwithstanding Mr. M's assertion of this Reign in particular that the Laws made in England and binding them were always enacted by their proper Representatives meaning Representatives chosen in Ireland the reason for which he there brings from supposed instances in the Reign of E. 3. seeming not to rely upon his Quotation from the White Book of the Exchequer in Dublin but the Page before which 9 E. 1. mentions Statutes made by the King at Lincoln and others at York with the assent of the Prelates Earls Barons and Commonalty of his Kingdom of Ireland Which if it implyed the presence of the Commonalty of Ireland would be an Argument that all their Rights were concluded by the Tenants in chief who had Lands in Ireland but were Members of the English Parliament by reason of their Interest here but in truth this shews no more than that at the request of those of Ireland the Parliament of England had enacted those Laws and the Record in their white Book is only a Record of the transmission from hence and proves that suitably to the practice both before and after that time they in Ireland had no Parliaments for enacting Laws but were forc'd to Petition to have them enacted here and what was enacted upon their Petition was truly with their Assent But then the Question will be whether in the Laws made in that King's Reign with intention to bind Ireland their Consent is generally expressed or implyed any otherwise than from the nature of their former submission to be govern'd by the English Laws But if our Acts of Parliament and Records concerning them are clear in any thing they certainly are in this that the Parliament of England then had and exercis'd an undoubted Right of binding Ireland without their immediate consent by any Representatives chosen there Mr. M. indeed tho' as I have before observ'd he admits that Ireland was bound by Acts of Parliament here till the end of the Reign of H. 3. for want of a regular legislature among themselves yet suitably to his usual inconsistencies upon the enquiry where and how the Statute Laws and Acts of Parliament made in England since the 9 th of H. 3. came to be of force in Ireland will have it that none of them made here without Representatives chosen in Ireland were binding there till receiv'd by a suppos'd Parliament 13 E. 2. yet it falls out unluckily that they have Statutes in Print 3 E. 2. which speak not a word of Confirming the Laws before that time made in England and yet no Man will question but Statute Laws of England made in the Reign of E. 1. were a Rule which the Judges in Ireland went by before the time of E. 2. And that all Judgments given in Ireland contrary to any Law transmitted thither under the Great Seal of England must upon Writs of Error have been set aside here as Erroneous But let 's see whether our Parliaments in the time of E. 1. had such a defference to the Irish Legislature or that the English in Ireland then made any such pretensions as Mr. M. advances If we Credit Judge Bolton our Statute Westm 1st which was 3 E. 1. was first confirm'd in Ireland 13 E. 2. and till then according to Mr. M.'s Inferences from their receiving or publishing Laws made here that Statute was of no force in Ireland being Introductory of a new Law in several particulars as among other things in Subjecting Franchises to be seized into the King's Hands for default of pursuing Felons and in Enacting not only the Imprisoning and Fining Malefactors in Parks and Vivaries but forcing them to Abjure the Realm if they could not find Sureties for their good Behaviour This Act does not Name Ireland but the King Ordain'd and Establish'd it by His Council and by the assent of the Archbishops Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm thither Summoned for the mending the Estate of the Realm for the Common profit of the holy Church of the Realm and as Profitable and Convenient for the whole Realm However that Ireland as part of the Realm was bound by this Law and by other Laws made 11 12 and 13 E. 1. without any regard to Parliamentary Confirmations in Ireland and that for enforcing Obedience to those Laws 't was enough to send them thither by some proper Messenger under the Great Seal of England if not without appears by the Proceedings of the Parliament at Winchester holden the Oct. after the Parliament of Westim 2. Mem. quod c. Mem. that on Friday in the Feast of the Exaltation of the Holy Cross in the 13 th Year of the King at Winchester there were deliver'd to Roger Brâ—ton Clerk to the Venerable Father William Bishop of Waterford then Justice of Ireland certain Statutes made and provided by the King and His Council viz. The Statutes of Westminster made soon after the King's Coronation and the Statutes of Gloster and those made for Merchants and the Statute of Westm provided and made in the King's Parliament at Easter to be carried to Ireland and there to be Proclaimed and Observed It appears that among the Statutes delivered to the Chief Justices Clerk in order to their being published and observed in Ireland one was the Statute concerning Merchants 12. E. 1. for the enforcing and improving a Statute made at Acton Burnel 11. of that King that of Acton Burnel provides a remedy for Debts to Merchants to be had by calling the Debtor before the Mayor of London York or Bristol or before the Mayor and a Clerk to be appointed by the King which as it seems 't was intended that the King should have Power to appoint in other Cities or Towns within his Kingdom Accordingly the Statute 12. E. 1. says the King had commanded it to be firmly kept throughout his Realm and that Parliament 12. for declaring or explaining some of the Articles of the former Statute names the Mayor of London or the Chief Governour of that City or of other good Town This Statute expresly Ordains and Establishes that it be thenceforth held throughout the
the Statutes of Gloster which do not Name Ireland and the Statutes of West â— which do were both delivered to the Clerk of the Justice of Ireland in order to their being published and observed there And 't is evident that Ireland's being bound by Parliaments in England without any consent expressed in Ireland was not merely the Judgment of the times above referred to but the setled Judgment of that King and His Council in His Parliaments Thus in the 8 th of that King there 's a Writ taking notice that the Irish had desired to be governed by the Laws of England upon which the King requires all the English of the Land of Ireland to Certifie whether this might be granted without pre judice to them declaring that the King would make such Provision as should seem expedient to Himself and His Council which plainly enough referred to His Council in Parliament If upon their Certificate a general Law had passed to grant the Irish their Request the mentioning the consent of the English there could not be thought to derogate from the Legislature here the Authority of which was intimated in that very reference and was fully asserted in that Kings Reign by an Act of Parliament made here after that time and the Proceedings thereupon both in England and Ireland By the Case of mixt Monies in Ireland we are informed that 29 E. 1. when by the King 's sepecial Ordinance the Pollards and Crochards were cry'd down and made of no Value the same Ordinance was transmitted into Ireland and Enrolled in the Exchequer there as is found in the Red Book of the Exchequer there And agreeably to this it appears by the Statute Roll here that this Ordinance which in truth was an Act of Parliament or else an other of the same kind was sent to John Wogan then Chief Justice of Ireland or to his Lieutenant This is only a short Entry referring to the known usage But the very next Record of a transmission to Ireland of a Statute made here which was that about Juries is more express Mem. quod istud Statutum de verbo ad verbum missum suit in Hib. T. R. aput Kenynt 14. die Aug. Rni sui 27. Et mandatum fuit J. Wogan Justic Hib. quod praed Stat. per totam Hib. in locis quibus expedire videret legi publicè proclamari firmiter teneri faciat Mem. That that Statute word for word was sent into Ireland Teste the King at Kenynton 14. Aug. in the 27th of his Reign Command was gito John Wogan Chief Justice of Ireland to cause it to be read in those places in which he shall think it expedient and to be publickly Proclaimed and Observed This Statute does not name Ireland nor has general words which seem to include it But it seems some years after to have been Enacted that this Statute should be transcribed and sent to Ireland for a Law given them by Parliamentary Authority In the 35 th of E. 1. Will. De Testa was Impeach'd in Parliament for grievous Oppressions and Extortions upon the People by Colour of Authority from the See of Rome This upon the Petition of the Earls Barons and other Great Men and the Commonality of the whole Realm of England occasioned general Law and Provision for the State of the King's Crown and also of His Lands of Scotland Wales and Ireland The Remedy was Enacted by the Assent of the King and the whole Council of Parliament and 't was Enacted that for the future such things should not be permitted within the Realm That Ireland was then included as part of the Realm appears not only by the intention before declared but agreeably thereunto The Statute then made is by Authority of Parliament sent to the Justice of Ireland as well as to the Chief Governors of other the King's Dominions enjoyning them to enquire and proceed against those who had offended in that kind and to cause the Provision Agreement and Judgment of that Parliament to be Firmly and Inviolably observed in those Lands Mr. M. having as he thinks answer'd an Objection from the Ordinance for the State of Ireland Printed in our Statute-Books not only that of 1670. but even in others much more Ancient as made 17 E. 1. I shall shew him some new Matter which may deserve his farther Consideration and yet tho' he thinks he has prov'd 1. That this Ordinance was never receiv'd in Ireland 2. That 't was meerly an Ordinance of the King and His Privy Council in England it might be enough to observe That the Clause which he Instances in forbidding the King's Officers to purchase Lands there upon pain of Forfeiture has an Exception for the King's Licence and tho' he has not been at the pains to examine whether there were any such Licences from England I can shew him in the very next Year a confirmation under the Great Seal of England of a grant of Land 's there before made from hence which were sufficient security against the forfeiture 2. If 't were admitted that the Ordinance were made by the King and his Privy Counsel 't would be very difficult for him to prevail upon many to believe that a Land or Kingdom which in all the principal Parts of Government was under the controul of the Great Seal of another Kingdom was as he pretends a complete Kingdom within it self or a Kingdom regulated within it self the contrary of which appears in numerous instances of the time of which we are at present enquiring as of leave from hence to chuse Ecclesiastical Governors Pardons Directions for the Proceedings of the Courts of Justice and Council in Ireland the appointing distinct Courts of Judicature Grants of Lands Offices Liveries out of the King's Hands of Lands held in Chief of the Crown of England Licences of alienation and the like Further than all this there 's a Precedent of taxing Communities by Authority from hence It must be agreed that 't was frequent for Kings to grant to Cities and Towns in England power to raise Customs or Duties for Murage the building or repairing their Walls to be levyed upon Goods and Merchandizes brought thither in these Grants there was no mention by what advice or consent they issued but 't is to be presumed that the Great Seal was not rashly affixed nor were they extended farther than to the Walls which secured the Persons and Goods of those who paid the Duty yet the Great Seal of England has been applyed much more absolutely to the binding the property of the Subjects in Ireland as may appear by this Record R. Ballivis probis hominibus sâ—is Dublin Salutem Cum in subsidium villae claudendae vobis nuper per literas postras Pat. concesserimusquod quasdan consuetudines usque ad certum tempâ—s de singulis rebus venalibus ad eandem villam
17th of his Reign and not of E. 1. for which I shall refer not only to what I before observed which may give reasonable satisfaction that no such Ordinance could have been made in the 17th of E. 1. but to the Statute-Rolls where this is entered among the Statutes of the time of E. 2. next above the Statutes of the time of E. 3. For maintaining the Jurisdiction of England that Statute of Nottingham ordains That no Pardon for Felony be granted by the Justice of Ireland nor Seal'd with the King's Seal there without special Command of the King under some one of his Seals of England 1. It being so manifest from undoubted Records that the Parliaments of England to the 17 th of E. 2. exercised an Authority in making Laws to bind Ireland and that there was a plain and known Method for publishing those Laws in Ireland by virtue of the Great Seal of England I hope it will be allowed that the Authority of Sir Richard Bolton's Marginal Note in an Edition of the Irish Statutes is not enough to induce Men to believe that in the 13 th of E. 2. the Statute of Merton 20 th H. 3. and some other Statutes made in England were confirmed in Ireland as being of no force there till then And that no other Statutes made in England were of force in Ireland till confirm'd there Can any Man think that no part of the Statute of Merton was received for Law in Ireland till the 13 th of E. 2. particularly will even Mr. M. believe that notwithstanding the Record 21. H. 3. of Transmission of so much at least of the Statute of Merton as relates to the Limitation of Writs yet till the 13 th of E. 2. the descent in a Writ of Right was to be lay'd from an Ancestor of the time of H. 1. which is 200 Years within One Or does he think that the Justice of Ireland for the time being would not have been turn'd out if not impeached had he not caused the Statutes of West 1. and 2. and the Statutes of Gloucester to have been Proclaimed and Observed in Ireland after they had been delivered to his Clerk in the Parliament at Winchester and yet if there be any thing in Mr. M s Quotation from Sir Richard Bolton these were not received for Laws in Ireland till 13. E. 2. But since 't is manifest that those and the other Statutes afterwards sent over in the time of E. 1. and E. 2. must needs have been put in Execution there if there were any such Act of Parliament 13. E. 2. as Mr. M. takes for granted upon no Authority in comparison with the Records which I have cited as to so much of any Acts of Parliament made here as was not transmitted in the form above shewn the Enacting them in in Ireland might be the first Publication there But as to what was contained in the Patent or Charter sent thither it could be no more than a Declaratory Law or rather Republication Sometimes there might have been a special form of Transmission which as one means of publishing the Laws might require their Parliament to meet to hear Laws read to them which would bind them whether they consented or no or by Writ from hence a Law or Charter pass'd there might be so republished Thus 't was beyond Contradiction 12. H. 3. when a Charter of King John's Sworn to by the Irish was either sent back or republished after it had lain there Rex dilecto fideli suo Ric. de Burgo Justic suo Mandamus vobis â—irmiter praecipientes quatenus certo die loco faciatis venire coram vobis Arch. Ep. Ab. Pr. Com. Bar. Mil. libere tenentes Ballivos singulor Comitat coram eis publice legi faciatis cartam Dni J. Regis Patris nri cui Sigillum sum appensum est quam fieri fecit jurari à Magnatibus Hib. de legibus consuetud Anglicis observandis praecipiatis exparte nostrâ quod leges illas consuetudines in carta praed contentas de caetero firmiter tenennt Et hoc idem per singulos Comitatus Hib. clamari faciatis teneri Prohibentes firmiter exparte nostrâ super forisfactur nostram ne quis contra hoc Mandatum venire presumat The King to his Beloved and Faithful Subject Richard de Burgh his Justice of Ireland we command you firmly requiring that at a certain day and place you cause to come before you the Arch-Bishops Bishops Abbots Priors Earls Barons Knights Freeholders and the Bailiffs of every County and before them cause publickly to be read the Charter of King John our Father to which his Seal is affixed which he caused to be made and sworn by the great Men of Ireland concerning the observing in Ireland the Laws and Customs of England And command them from us that they for the future firmly keep and observe the Laws and Customs in the said Charter contained And cause this same to be Proclaimed thro' every County of Ireland firmly Prohibiting in our Name and under our Forfeiture that no person presume to the contrary of this our Command All must agree that this Publication in so formal a Parliament and after that in the several Counties was not necessary to give Sanction to that Charter for that it had before And could be no more than a reminding them of their Duty or a more solemn Publication of the Law But that being a Law made here was held sufficient to make it a Law to the English in Ireland and that being transmitted thither under the Great Seal of England it became a Rule to the Judges there even in matters happening before the transmission appears by the following Precedents A Man having been redisseis'd after the Statute of Merton 20. H. 3. which had made a Redisseisour lyable to Imprisonment A Party who had been so injured applies to the King for Remedy and as the Writ to the Justice of Ireland has it Ideo vobis mittimus sub sigillo nostro constitutionem nuper factam coram nobis Magnatibus nostris Angliae de praedicto casu similiter de aliis artiâ—ulis ad emendationem rni nri Mandantes quat de consilio venererab Pat. L. Dublin Arch. constitutionem illam in Curiâ nostra Hib. legi de caetero firmiter observari faciatis secund eandem praed querenti plene justitiam exhiberi faciatis Therefore we send you under our Seal the Constitution lately made before us and our great Men of England concerning that Case and other Articles for the Amendment of this our Kingdom commanding That with the Counsel of the venerable father L. Arch-Bishop of Dublin you cause that Constitution to be read in our Court of Ireland and for the future to be firmly observed and that you fully dojustice to the Complainant according to the same In the Sense in which the Parliament
12. of H. 3. was to receive the Charter of King John and the King's Court or Bench in Ireland was to receive the Statute of Merton I will agree that Parliaments in Ireland may have received Laws in the time of E. 2. but there 's no colour to believe that they then pretended to more in relation to Acts of Parliament sent over to them at large under the Great Seal of England The Reign of E. 3. I may divide into Three Periods 1. Before 2. At 3. After the main and most express Charter for a Parliament in Ireland of any yet cited or appearing 1. In the Statute Roll of the beginning of E. 3. there are several entries in Latin of this kind Mem. that those Statutes were sent into Ireland in the form of a Patent with a certain Writ here following But the entry of the Writ is sometimes omitted it being look'd on as matter of common form In the 2 d. of that King a Statute was made at Northampton giving a command about Fairs to all Sheriffs of England and other Parts In the 6 th a Statute was made supplying the Defects of that Statute and creating the Forfeiture of double the Value of what should be sold in any Fair or Market beyond the time limited for them in the Charters In the 6 th of that King this last Statute and all other Statutes made in his Reign to that time are sent in the form of a Patent to Anthony de Lucy Justice of Ireland requiring that those Statutes and all the Articles therein contained be Proclaimed in the King's Land of Ireland as well within Liberties as without and that he should cause so much of them as concern'd the Justice and the People of that Land to be firmly kept and observed A Statute 11. of E. 3. provides That except the King and his Children no Person great nor small within England Ireland and Wales or so much of Scotland as was then under the King's power should wear any Cloth but what was made in England Ireland Wales or such part of Scotland upon pain of Forfeiture of the Cloth and being Punish'd at the King's pleasure And whereas Mr. M. according to the use which he makes of publications in or by Parliaments in Ireland of Laws made in Parliaments of England would infer that no Statutes made here against Provisors could be of force in Ireland till the 32 d. of H. 6. when 't was Enacted there That all those Laws made in England as well as in Ireland be had and kept in force 't is evident that E. 3 d's Parliament and his Council acting in Parliament held that there was no need of other publishing and enforcing those Laws than was usual by virtue of the Great Seal of England The Commons Petitioned that the Provisions and Ordinances made in the Parl. 17. of that King concerning Provisions and Reservations from the See of Rome be affirmed by a Statute to endure for ever And particularly that if any Arch-Bishop or other Spiritual Patron do not present within Four Months after Voidance by a Man's accepting any Benefice from the See of Rome the Right of Patronage should accrue to the King And they pray that Commissions and Writs be sent to all ports of England Wales and Ireland and other Places within every County as there should be occasion to Apprehend all those who should carry any of the Bulls Process or Instruments then complained of The Answer in French is thus 'T is accorded and assented by the King the Earls Barons Justices and other Sages of the Law that the Things above-written be done and in reasonable form according to the prayer of the Commons Upon which there 's no doubt but either a Writ was sent to Ireland with this Act of Parliament in the form of a Charter to warrant Commissions for that purpose in Ireland or otherwise Commissions might issue from hence to apprehend such Offenders as should be found there The Statute of the Staple 27. E. 3. taking notice of the Damages to the People of the King's Realm and of his Lands of Wales and Ireland because the Staples had been held out of the said Realm and Lands appoints places for the Staple in Ireland as well as in England and Wales and creates a Forfeiture of the Wool and other Staple Commodities which any English Irish or Welsh should carry out of the said Realm and Lands with the like Penalty if they should receive Gold or Silver for them elsewhere than at the respective Staples At which Staples 't is to be observed that there were paid Duties and Customs granted by Parliament in England Another Statute of the same Year appoints That all Wines in England Ireland and Wales be Gauged on pain of Forfeiture and further Punishment at the King's pleasure And but Two Years before the Statute of Treasons which does not name Ireland was made for a Law to the whole Realm and for Ireland as part of it But none of the King's Subjects in Ireland were within that Law unless they were to be adjudged Subjects of the Realm of England And yet this Statute is ordered to be published and observed in Ireland as well as England in this manner To the Sheriff of Kent greeting We send you under our Seal certain Statutes made in our Parliament assembled at Westminster on the Feast of St. Hillary last past by us the Prelates Dukes Earls Barons and others of the Commonalty of our Realm of England to the said Parliament summoned Commanding that you cause the said Statutes to be read in your full County and that they be firmly observed and kept Teste the King at Westm the 6 th day of May. The like Writs of the same Date are sent to the Justice of Ireland what ought to be changed being changed But if the Parliaments of England had or exercised any Jurisdiction or Authority over Ireland hitherto at least 't is to be thought that 't was all taken from 'em by a Charter of E. 3. part of which he transcribes out of Mr. Prynn but for his satisfaction I shall give him more of it from the Record now to be seen in the Tower 't is a Charter of R. 2. of an Ordinance for the State of Ireland reciting and confirming the Charter 31. E. 3. beginning thus Quia ex frequenti side dignor insinuatione accepimus quod terra nra Hiberniae ecclesiaque Hibernica ac clerus populus ejusdem nobis subditus ob defectum boni regiminis ac per negligentiam in curiam Ministror regior ibin tam major quam minor hactenus turbati fuerint multipliciter gravati Marchiaeque terrae ipsius juxta hostes positae per hostiles invasiones vastatae occisis Marchionibus depraedatis eorum habitationibus enormiter concrematis caeterisque coactis loca propria deserere
quibusdam videlicet ad hostes caeteris ad loca extranea fugientibus Diversaeque partes dictar Marchiar taliter desolatae derelictae per hostes eosdem occupatae nostraque ejusdem terrae negotia incongruè inutiliter leges approbatae consuetudines minus debite observatae populo nro bonis rebus suis contra justitiam legem formam Statutor inde editor diversimode spoliat paxque nostra laesa minime custodita Ac proditores Latrones Malefactores non sicut convenit castigati Quorum malorum aliorumque occasione majora damna irreparabillia evenire quod absit timentur nisi praemissis opportunis reme diis occurrat Nos desiderantes utili regimini quieti eorund terrae populi providere quae sequuntur propterea deassensu consili nostri ordinanda duximus firmiter observanda In prim viz. volumus praecipimus quod sancta Hibernica ecclesia suas libertates liber consuetudines illaesas habeat eis liberè gaudeat utatur Item volumus praecipimus quod nostra ipsius terrae negotia ardua in consiliis per peritos consiliarios nostros ac praelatos magnates quosdam de discretioribus probatioribus hominibus de Partibus Vicinis ubi ipsa consilia teneri contigerit propter hoe evocandos In Parliamentis vero per ipsos Consiliarios nros ac Prelatos Proceres aliosque de terra nostra proutmos exigit secundum justitiam legem consuetudinē rationem tractentur deducantur fideliter timore favore odio aut pretio postpositis discutiantur etiam terminentur Because from the frequent Relations of Persons to be credited we understand that our Land of Ireland and the Irish Church and the Clergy and People subject to us thro' defect of good Government and by the negligence and carelesness of the King's Officers there both great and small has hitherto been manifoldly troubled and aggriev'd and the Marches of that land plac'd against the Enemies wasted the Marches being kill'd and despoil'd their Houses enormously burnt and the rest being forc'd to forsake their habitations some flying to the Enemies and others to Foreign Parts And divers parts of the said Marches so desolated and forsaken have been possess'd by those Enemies and the Affairs of us and that Land are incongruously and unprofitably and the Laws and approved Customs not duly observed our People being in divers manners spoil'd of their Goods and things contrary to Justice Law and the form of Statutes in those cases provided And our Peace is broken and not in the least kept And Traytors Robbers Malefactors not punish'd as they ought By occasion of which and other Evils greater irreparable Damages which God forbid are feared as likely to happen unless the Premises meet with opportune Remedies We desiring to provide for the convenient Government Quiet of that Land People therefore we by the consent of our Council have thought fit to provide these following Particulars to be ordain'd and observ'd In the first place that the Holy Irish Church have its Liberties free Customs unhurt and enjoy usethem freely Also we will and command That the Affairs and Arduous Matters of us and that Land in Councils by our Learned Counsellors and Prelates and great Men and some of the more Discreet Honest of the parts neighbouring upon the place where those Counsels shall happen to be held to be summoned for this purpose But in the Parliaments by those our Counsellours and Prelates Peers and others of our Land as custom requires be according to Justice Law Custom and Reason brought and faithfully Fear Favour Hatred or Price being disregarded discussed and also determined Then particular Provisions are made here notwithstanding the Allowance of Parliaments there Among which 1. That Men guilty of Broakage should be Punished by the Justice and Council of Ireland and fined and amoved from their Offices as should seem reasonable to the Justice and Counsel 2. That no Purveyance be taken contrary to the form of Statutes and Articles made and published for the profit of his People in Parliaments and other great Councils But if there be any force in Mr. M's way of Arguing the Statutes against Purveyors were not binding to Ireland till 18. H. 6. when 't is Enacted By a Statute made in Ireland that all the Statutes made in England against the Extortions and Oppressions of Purveyers are to be holden and kept in all points and put in Execution in this Land of Ireland 3. It provides against Robberies and for Hue-and-Crys according to the Statute of Winchester 4. That no Pardon be pass'd but in Parliaments or Councils by the assent and counsel of the said Parliaments and Counsellors And that there be no general Pardon but that the Offences be specified and expressed according to the tenor of a certain Statute by the King and his Council of England publish'd and sent to Ireland to be observed 5. The Charter taking Notice that false intelligence us'd to be sent from Ireland to England forbids it under grievous Forfeiture declaring that if for the future the Prelates the great Men Commonalty or any other should misinform the King and his Council they should be duly Punished 6. Whereas they us'd to Exhibit against one another several scandalous and vexatious Libels and Bills it provides that they being reduced to Writing be under the Seal of the Chancellor for the time being transmitted to the King's Justice Chancellor and Treasurer of Ireland who are thereby impowered to do Justice but this is by virtue of the great Seal of England 7. It Impowers the Justice calling to him the Chancellor and Treasurer with some Prelates and Earls whom he shall know to be fit or that they ought to be summoned to determine the Differences between the English of Irish Extractions and which were or should afterwards be of English 8. It requires the Justice and his Associates when there was any special Cause to certifie to the King his Council of England the Names of all Persons guilty and their Offences Since Mr. M. having as he fancied clearly made it out that for Ireland to be bound by Acts of Parliament of England is against several Charters of Liberties granted unto the Kingdom of Ireland thinks he had no need to add any other Authority than a piece of that Charter of the substance of which I have given an Account with all the distinguishing Expressions I might well enough close here and leave it to himself to consider whether when a Parliament is granted or allowed to the Land of Ireland in the fullest terms that ever it was in any King's Reign that can be shewn there was not at the same time a full exercice of the Power of the Crown and Kingdom of England in making Laws and requiring the Execution of others made in England without any
desire or expectation of a Ratification there And whether even their Parliaments are not threatned if they send false intelligence to England For full proof that in this Ordinance the Authority of the Parliament of England was reteâ—â—â—d and asserted I must observe to Mr. M. that this Noble Charter to Ireland is but according to the usual Methods of Publishing Acts of Parliament put under the great Seal and thereby made a Patent or Charter but 't was an Ordinancâ— or Act of Parliament for the State of Ireland as may be seen by the Statute Roll. 3. After this Statute mentioning Parliaments in Ireland the Parliament here exercised the same Authority in making Ordinances and Laws for Ireland and the King and his Council held Ireland to be bound by those Laws as part of the Realm of Eng land A Statute made in the 36 th of that King provides that no Lord of England nor any other Person of the Realm except the King and Queen take purveyance on pain of Life and Member and takes from Mayors and Constables of Staples all Jurisdiction in Criminal Causes but I do not find any mention of Ireland and yet that both King and Council judged that the publishing them in Ireland would avail as much as the publishing them in England appears by the Writ to the Sheriff of Essex and Hertfordshire requiring him to publish the Statutes and Ordinances then made by the King with the common assent of the Prelates great Men and Commonalty in his full Parliament at Westminster and to return the Writ with an Account of the Execution of it to the King in his Chancery This Writ is tested by the King And in the same manner commands are sunt to the Justice of Ireland But notwithstanding this Transmission to Ireland of Statutes made here one of which is about Purveyance which is at least the Second of this kind made to bind Ireland Mr. M. may if he pleases hold that this was not Law in Ireland till 18. H. 6. But after all I would intreat the favour of Mr. M. to inform me whether according to himself such Acts of Parliament in Ireland were needful to Confirm Laws made here when if he puts a right construction upon the Record above cited 9 E. 1. and of the Record 50 E. 3. of a Writ from hence for the Expences of the Men of Ireland who last came over to serve in Parliament in England The Men of Ireland us'd to send their Representatives hither to the making the Laws by which they were to be bound till this sending of Representatives out of Ireland to the Parliaments of England was found in process of time to be very troublesome and inconvenient But whatever Mr. M. may imagin in this matter that sort of representation of Ireland in the Parliaments of England was no more than they had in the time of H. 3. and have 't is likely generally had to this day of persons entrusted to sollicit the Affairs of Ireland upon their numerous Petitions to the King and his Council in Parliament for which Receivers and Triers used to be appointed or other matters of concern to them But whether they were chosen by their Parliaments when they had them or elsewhere their Expences as appears by the Record cited by Mr. M. were levied by Authority under the Great Seal of England But I will shew a Record of the time of H. 3. when I will agree that they had Nuntii Messengers deputed as 't is likely from a Parliament in Ireland H. 3. in his Writ or Letter to the Barons of Ireland takes notice that by the advice of his People he had given a favourable answer to some of their requests made known by persons deputed from them But because those persons alledged that their Instructions were to insist upon all the particulars of their Requests the King sends a Precept to the Justice of Ireland under the Great Seal of England requiring him as it seems to summon a Parliament for he was carefully to open the matters before the Barons of Ireland and to know what they would give for the Liberties they desired The Justice had no Authority to have those Liberties setled in a Parliament there but was to signify their Answer to the King upon which the King would do what should be fitting without taking any Right from them That this was to be done in Parliament here and that the Messengers from Ireland were no Members of that Council of the King's People which sent the Answer is beyond dispute nor is there colour to believe that any of their Deputies or Representatives had in any King's Reign more to do here than those of the time of H. 3. had But surely no Man but Mr. M. will conclude that such Instances or the mention of the Consent or Petition of the Irish in some Particulars manifestly shew that the King and Parliament of England would not enact Laws to bind Ireland without the concurrence of the Representatives of that Kingdom Since therefore I have proved to the contrary from H. 2's first acquisition till towards the latter end of E. 3. and Mr. M. declares that he will consider the more antient Precedents of English Statutes which particularly name Ireland and are therefore said to be of force in that Kingdom I might rest here did not Mr. M. take notice of the Statute of the Staple 2 H. 6. and the Resolution of the Judges upon it 1 H. 7. in such a manner as makes it requisite to be set in a truer Light The Merchants of Waterford pursuant to the Licence granted them by E. 3. and confirmed by E. 4. had carried Wool contrary to the ordinary provision of the Statute 2 H. 6. which being seized by the Treasurer of Calâ—is as forfeited part to the King and part to himself as discoverer The Merchants by Bill in the Exchequer here pray restitution 'T is to be observed that the Act upon which the Wool was seized tho it creates a forfeiture of the value of Wool Butter Cheese and other staple Commodities carried from England Ireland and Wales to other parts than Calais and gives the Informer a 4 th of what shall be carried contrary to that Act from any County of the Realm makes no mention of Ireland as to the Informers share and therefore his Interest could bear no debate unless Ireland had been included and the Counties of Ireland were Counties within the Realm of England But Mr. M. says the 2 d Question was Whether the King could grant his Licence contrary to the Statute and especially where the Statute gives half the Forfeiture to the Discoverer But he might have observed that the Statute has an express saving of the King's Prerogative which goes thrô the whole and certainly related to the King 's granting Licences to the contrary in some particular
Cases Notwithstanding which 't was the opinion of the Parliament the next year that this saving was not sufficient and therefore the King at the grievous complaint of the Commons impowers the Chancellor of England to give Licences for Butter and Cheese at his discretion As to the question Whether Ireland was bound by the Stat. 2 H. 6. Mr. M. pretends to transcribe verbatim what relates to it in the Year-Book 2 R. 3. The matter as he observes was brought before all the Judges of England in the Exchequer Chamber but after ibi he omits the word dicebatur it was said not per curiam but at the most only by some Judg or Judges and might have been only by one of the Counsel for the Merchants Whoever then held that Ireland was not bound by that Act might have spoken it in relation to the Informer who could claim no share of any Forfeiture incur'd from Ireland unles the Counties of Ireland were taken to be Counties within the Realm of England But even as to this matter they were soon convinced of their mistake in thinking Ireland was not bound by that Statute Mr. M. might have learn'd from the Year-Book 1 H. 7. that this was so far from the resolution of the Court 2 R. 3. that there was no Judgment but the Bill fell upon the demise of that King which till the Statute 1 E. 6. was a discontinuance of all real personal and mix'd Actions commenced in any of his Majesty's Courts and other Courts of Record And therefore 1 H. 7. the Suit was begun again as if commenced in that King's Reign and then the question coming before all the Judges in the Exchequer Chamber Hussey the chief-Chief-Justice delivering the Judgment of the Court declared with the assent of the rest of the Judges that Ireland was bound by that Act and I leave to Mr. M. to make it out that this was directly contrary to the Judges opinion in the 2 d of R. 3. or that they were all positive that within the Land of Ireland the Authority of the Parliament of England will not affect them If there had been any such opinion 't was not delivered as the Judgment of the Court and however the Resolution 1 H. 7. has setled the Point another way This Case is abridg'd and the Resolution receiv'd for Law by Brook a Learned Judg in the Reign of H. 8. without any query which is usual where he doubted his tamen nota that Ireland is a Kingdom by it self and has Parliaments of its own implies no more than that this tho objected 2 R. 3. was of no weight to alter that judgment and is as much as to say a Kingdom may be distinct from the Crown of a Kingdom to which it is annexed and have Parliaments at home and yet be govern'd by the Statute Laws of that other Kingdom as subordinate to it And tho the naming that subordinate Kingdom in an Act of Parliament here or the otherwise manifesting an intention to bind it is no step towards obtaining a Parliamentary consent in Ireland yet 't is towards the submission and acquiescence of the People to those Laws by which they and their Forefathers had consented to be governed I may now leave it to Mr. M. to answer his own Questions Shall Ireland receive Charters of Liberties and be no partakers of the freedoms therein contained or do these words signify in England one thing and in Ireland no such thing Nor need I much fear his terrible Expostulation Whether it be not against natural Equity and Reason that a Kingdom regulated within it self and having its own Parliaments should be bound without their consent by the Parliament of another Kingdom But I should hope that he will admit it to be against natural Reason to go away with a Conclusion without some colour of proving the Premises and therefore before he had laid it home to English hearts to consider Whether Proceedings only of thirty seven years standing shall be urged against a Nation to deprive them of the Rights and Liberties which they enjoyed for five hundred years before He would have done well to have proved that any one Century or much less number of years for these five hundred years more Ireland was ever according to the terms of his own Question regulated within it self or that 't is a Kingdom of more than one hundred and sixty years standing But it seems just thirty seven years since and never before the Rights and Liberties which they had quietly enjoyed till then were invaded and from that day to this have been constantly complained of 'T is not to be expected that a man who remembers so little of those many Acts of Parliament made in Ireland which might have moderated his assurance in this matter should keep in memory even his own concessions to the contrary as where he grants that the Parliaments of England did at least claim a superiority before the 10 th of H. 4. and 29 H. 6. But then he says 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 Answ 1. As to the express claiming an Authority to do what is done by virtue of an Authority always suppos'd that 's so far from an Argument against it that it shews 't was never call'd in question 2. No Act of Parliament even in Ireland can be shewn or pretended denying the Subordination not but that there might be some question of the general binding for want of due publication either under the Great Seal of England or of otherwise knowing the Intention of the Parliament of England This not the Authority was the Ambiguity mentioned in the Statute of Ireland 8 E. 4. in relation to a Statute 6 R. 2. which without naming Ireland alters a Law that did name it 3. If there were such Act of Parliament in Ireland 13 E. 2. as 't is supposed that a certain Judg in Ireland had seen and that we might rely upon his Judgment in the sense of it receiving some Laws before that time made in England and suspending the execution of others what I have shewn above from undoubted Records may be enough to shew that this would not in the least weaken the Right of the Parliament of England exercised before and after that time And if there were another Statute 10 H. 4. that no Laws should be of force unless they were allow'd and published by a Parliament in Ireland This tho 't is a strain farther than 't is likely any Parliament of Ireland ever yet went would not necessarily infer any more than that the Laws made in England should be thus published to the end they might be more generally known not but that the intention of the Parliament of England made known under the great Seal
Nota Oct. Martini is but 2 Days after b P. 89. c Claus 17. E. 1. M. 8. Usque ad proximum Parl. post Pascâ—a ut tune inde Rex faciat quod de concilio suo duxerit ordinandum Teste Edm. Com. Corn. Cons Regis apud West 5 Mâ—râ—iiâ— a Claus 17. E. 1. M. 2. dorso Nobis ea in proxim Parl. nostro referant b Quod veniant apud Westm in Craft instantis Festi Sancti Martini That 't is to be believed a parliament was holden 17 E. 1. tho no Summons to it found a Vid. Dugdale's Summons to the Nobility That which be cites 5 E. 1. iâ— a Summons to the Army b Vid. Stat. eâ— An. 1529 p. 21. Of A Summons to parliament 18 E. 1. a Rot. Claus 18. E 1. M. 10. dorso That â—it d by Dr. Brady is to the Sheriff of Westmorland Dr. Bradie 's Answ p 230. Dr. Bradie's Introduction to his Compleat History a Ad instantiam Magnatum b Et sciâ—â—dâ—m est quod istud statutum tenâ—t loâ—um deterris venditis tenend in seodo simplici tantum Quia empâ—ores terrar c. There us'd to be Manucaptors for this purpose Why so few Writs of Summons in those Times now to be found a Vid. Lamb's Archaionom Leges St. Edw b Rot. Claus 17. E. 1. sup Rot. Claus 3. E. 1. M. 9. dorso in Prl. Quod circâ— octobas Râ—suâ—â—ectionis Domini celebraâ—â— in Angliâ consuevâ—â— Commons included under Magnates a Rot. Pat. 1 E. 3. M. 10. b Rot. Claus. 2 E. 3. M. 20. Walsingham F. 126. c Tota regni nobilitas citata per prius ad Parl semend b Rot Claus 4. H. 4. n. â—9 Pur Monsieur Thomas Pomercy Chivalier Tres honourables Tressages Communes e Rot. Parl. 8. H. 6. n. 51. Tressages Tres honourables From the Mayor Aldermen and Commons of the City of London Rot. Patl. 3. H. 5. pars 1. n. â— Vid. Sup. of Cities and Boroughs Vide sup a Rot. Pat. 17. E. 3. p. 1. m. 20. dorso Liberè honorificè a Pat. 15. Jo. pâ—â— 1. M. 11 Reddidimus Heâ— de Tracy Baroniam de Bardestaple â—b Dotum honorem de Bardestaple a Vid. Doomâ—-day de Norwic. a Notâ— What a small proportion this new Plantation of French bore to the 1320 Burgesses and yet some English were mix'd even among the French Besides the French seem to have had but 11 added to their number from the Confessors time to the 20th of W. 1. a Doomsday-Book TRE reddebat c. b Rot. Cart. 2. Jo. m. 17. n. 51. Rot. Pat. 1â— E. 2. m. 5. Rot. Clâ—us 14. Jo. m. 8. d. Rot. Pat. 15. Jo. m. 3. n. 8. Bundela Pâ—t Parl. de temp E. 1. a Coram toâ—o coasilio a Vid. Davis Rep. le Case del County Pal. â—f 64. Cart. H. 2. Hugoni de Lacy Com. pro serv suo terram in Midea cum omnibus pâ—â—â—in ' per serv 50. militum sibi haer suis tenend de me haer meis Rot. de superioritate Maris 26. E. 1. Les Roys du dit Royaume du temps dount il n'a memore du contraire eussent este en paisible poss de la Soveraign Seignorie de la meer Dengleterre desâ—sles esteâ—nts en y cel q. l'Admiral ad jurisd avec la conâ—uisance justice touts autâ—es appeâ—tenantâ— c. Of Ireland's being bound by the Parliaments of England in the time of E. 2. Prynn 's Animad on Lord Coke f. 262. 10. E. 2. Quod semel in Anno teneatur Parl. Stat. of York 12 E. 2. Cap. 6. Rot. Sat. de temp E. 1. E. 2. E. 3. Statuta missa fuerunt in Hib. ut in brevi subseq continetur liberata fuerunt Godf. filio Rog. una cum dict brev deferend Pag. 130. Pag. 129. Rot. Stat. temp E. 1 E. 2. E. 3. M. 30. Answer to Sir Richard Bolton's Marginal Note P. 63. 64. Vid. Sup Stat. Merton c. 7. De Narratione in brâ—vi de recto ab antecessore a tempore Hen. Regis senioris Vid. Sup. Mr. M. p. 52. and 53. Rot. Claus 12. H. 3. De legibus cons observandis in Hib. Rot. Claus 20. H. 3. m. 13. Of Ireland's being bound by Parliaments of England in the Reign of E. 3. a In forma Patenti Vid. Rastals Collect. ed. Anno 1572. a Rot. Stat. Mem. quod istud Stat. cum Stat. precedentibus temp Regis E. â—3 Post conquestum missa sunt in Hiber in formâ Patenti cum brevi seq b Et quantum ad vos populum nostrum illar ter attinet firmiter teneâ—i observari fac c Stat. 11. E. 3. c. 2. P. 68. a Rot. Parl. 20. E. â— Ut memini parte transcripti circa idem tempus amissâ b N. 33. c N. 34. Note This was a disposing of Property d N. 37. e Resp N. 39. Stat. Stap. 27. E. 3. c. 1. 3. Note The Wisdom of that Law 27. E. 3. c. 7. Stat. 25. E. 3. Rot. Stat. M. 15. For the Honour of God and of Holy Church and the Amendment of his Realm a Rot. Stat. de temp E. 1. E. 2. E. 3. M. 15. De Proclamatione Statuti b Consimiles literae diriguntur Justic Hib. mutatis mutandis sub eâdem datâ P. 161. Rot. Pat. 17. R. 2. p. 1. m. 34. The suppos'd Magna Charta for Parliaments in Ireland Rot. Stat. ordinatione pro Statu Hibn. a per Justiciar Conciliumnostrum Hiberniae b Statut. artic per nos in Parliamentis aliis magnis consiliis ad utilitatem populi nri editor factor * Juxta tenorem cujusdam Statuti per nos consilium nostrum Angliae edit missi ad Hiberniam observand b Sub gravi foris facturâ Prelati magnates communitates aut quivis alii c Sub sigillo Cancellar protempore existentis ad Justic Cancel Theâ— nostris Hibern transmittantur d Vocatis ad se Cancel Thes nris Hiberniae cum quibusdam Prel Comitibus quos evocandos noverit e Ex certa causa sub sigil Justic sibi associator a P. 161. b P. 150. P. 161. a Vâ—d Râ—t 〈◊〉 tâ—mp 〈◊〉 E. 2. 〈◊〉 m. 12. 〈◊〉 Sâ—â—t â— m. ◠〈◊〉 36 E. 1. 〈…〉 a In 〈◊〉 Parl. 〈◊〉 Westm b Pâ—r 〈◊〉 Regem 〈◊〉 silium c Eodem medo 〈◊〉 est 〈◊〉 vicecom per Angl. 〈◊〉 Dunelm 〈◊〉 Pr. Walâ—â— Com. Ceâ—â—â— Rob. de 〈◊〉 Constab 〈◊〉 Dover 〈◊〉 stod 5 〈◊〉 Justic 〈◊〉 d P. 68. Of the fancy that the 〈◊〉 had representatives 〈◊〉 in Ireland 〈◊〉 sent from the 〈◊〉 to be 〈◊〉 of Parliament here * P. 95. †P. 97. ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ ð„ P. 98. Vid. Rot. Parl. de temp E. 3. * Vid. Rot. Pat. 5. R. 2. part 2. m. 19. Their Parliament required to send Nuncios P. 97. a Rot. claus 32 H. 3. m. 6. d. Rex Baronibus Hiberniae c Nuntil ex parte vestrâ— b De nostrorum consilio Ut eisdem articulis vobis diligenter expositis c. Et nos praed negotium ad nostrum vâ—strum honorem effectui mancipare curabimus sine ex heredatione vestrâ P. 96. P. 85 98. Of the Statute of the Staple 2 H. 6. and the Resolution of the Judges upon it Pais du Roialm P. 90. Salve la Prerogative le Roy. 3 H. 6. c. 4. P. 90. P. 91. 1 H. 7. Note Ireland not named yet the Courts in Ireland certainly included 1 H. 7. f. 3. Come bill fait en temps le Roy que ore est P. 92 93. Vid. Brook tit Parl. sec 90. P. 118. Is Ireland's being named in an English Act of Parliament the least step towards the obtaining the consent of the people of Ireland P. 157. P. 155. a P. 105. b From 33 H. 8. An. 1542. at soonest * P. 105. P. 65 66. P. 68. Object P. 79. P. 63 64. Vid. sup Davis f. 21. b. An. 1172. His politicks and seeming popular notions wrong and â—isapplyed P. 4. P. 150 151. P. 152. Hooker l. 1. sec 10. He adds P. 24. P. 20. P. 21. Vid P. 143. The People of England ought to be fully repay'd Prerog P. 166. P. 166 167. 3. C. 4. P. M. Vid. etiam Mr. M. p. 160. of the Staâ— 10. H. 7. P. 160. P. 170. P. 171. Pag. 172. Of the Consequence in relation to Taxes Pag. 88 89. Pag. 105. Of the uncertainty what Authority to obey Pag. 58. Pag. 16â— Of the supposed Inconvenience to England Vid. Glanvil de Seditione Regis vel Regni inter crimina lesae Majestatis Vid. Rot. Parl. temp E. 3. H. 5. ERRATA PAg. 5. Lin. 8. for have ' r. know ib. l. 14. r. grievous ib. p. 7. l. 9. for must r. might ib. l. 18. r. you represent p. 11. l. 26. r. and nature p. 12. l. 23. r. first expedition p. 29. l. 25. for will r. would p. 41. l. ult for none r. no Charter p. 62. l. 18. r. and that p. 63. l. 23. r. Jurisdiction which p. 64. l. 25. r. from p. 70. l. 5. r. would p. 87. dele voluntary p. 95. l. 11. r. H. 3. p. 104 l. 13. for the r. that p. 108. l. 6. r. here p. 112. l. 4. r. when p. 115 l. 12. dele chief â— 122. l. 20. r. carta p. 133. l. â— r. be then p. 134. â— 1. r. there then ib. l. 9. for me r. him p. 139. l. 9. for 1st r. 17th p. 144. l. 1. for that r. tho' p. 165. l. 15. r. Precedent p. 173. l. 21. r. Marchers p. 174. l. ult dele we p. 184. l. 24. r. consider only p. 195. l. 19. r. express p. 200. l. 4. â— Poyning's p. 201. l. 21. and 22. r. 1. As c. p. 202. l. ult r. who with his States p. 204. l. 23. for did r. does p. 212. l. 9. for there r. here