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
himself Ego Ethelred Rex Anglorum aliarumque gentium in circuitu persistentium I Ethelred King of the English and other Nations living round about And the same stile he uses in the Year 1001. tho as appears above in another Charter of the same Year he stiles himself only King of the whole Island And in another at the beginning of his Reign only King of the English W. I. generally stiles himself no more than King of the English or King of the English and Duke of Normandy Yet as one of his Charters has it he was the most powerful of all the Kings of that time ruling the greatest Empire of England That other Nations were then held to be Dependencies upon the Kingdom of England appears by a Charter of his in the 15 th of his Reign which begins Ego Gulielmus Deo disponente rex Anglorum caeterarumque gentium circumquaque persistentium Rector Dux Normannorū I William by God's Disposal King of the English and Ruler of the rest of the Nations round about and Duke of Normandy After his time his Successors till H. 2. left the Dependencies of England out of their Stile adding only other Dominions which they had as distinct and independent Thus H. 1. to mention no other stiles himself King of the English and Duke of Normandy but before the death of his Brother Robert only King of the English Not here to bring other Evidences of the continuance of the Superiority over Ireland to turn Mr. Molineux his Argument upon him if I shew the Church of Ireland to have been then dependent upon or under the Church of England he must not deny but the State was too Archbishop Parker who must be allowed to have seen and understood the Evidences of the Rights of the See of Canterbury and is agreed to be a faithful Collector speaking of the time of H. 1. shews that upon the vacancy of the Bishoprick of Waterford Murchertach King of Ireland with the Bishops all the Nobility and the Clergy and People of the Island sent to Anselm Archbishop of Canterbury desiring Quatenus ipse primatûs quem super eos gerebat potestate quâ fungebatur Apostolicâ fretus Authoritate sanctae Christianitati ac necessariae plebium utilitati eis subveniret That by the Power of the Supremacy which he had over them and the Apostolical Authority which he enjoyed he would be aiding to holy Christianity and the necessities of the people At their request he upon the death of the Bishop of Dublin consecrated one Malchus whose Bishoprick Pope Eugenius raised into an Arbishoprick But notwithstanding the Popes Eugenius and Adrian had constituted Archbishops there yet they all acknowledged the Supremacy of the See of Canterbury in all things And after Archbishop Parker had enumerated 33 Bishopricks in Ireland he adds Hi omnes 33 Episcopatus usitato antiquissimo regni jure ac instituto Cantuar sedi ut Metropoli parent All these 33 Bishopricks by the accustomed and most antient Right and Constitution of the Kingdom obey the See of Canterbury as the Metropolis If it were doubtful whether he meant that this Right was by the antient Constitution of the Kingdom of England the former Authorities make it evident that it was However I shall confirm them with two more Gervace of Canterbury who lived in the time of H. 2. speaking of Lawrence Archbishop of Canterbury who succeeded the reputed English Apostle Austin says He not only took care of the new Church gathered out of the English but of the old British Inhabitants and also took care of his pastoral Charge over the Scots who inhabit Ireland an Island very near Britain Bromton an Author who is cited by Mr. Molineux mentioning the Dispute about Superiority in the Great Council or Parliament at Winchester in the beginning of the Reign of W. 1. between Lanfranc Archbishop of Canterbury and the then Archbishop of York says Ubi Historia Bedae perlectâ monstratum est à tempore primi Augustini usque ad ultima Bedae tempora quod circiter centum quadraginta annos erat Cantuar. Arch. primatum super totam Britannicae Insulam Hiberniae gessisse Where the History of Bede having been read 't was shewn that from Austin's first coming to the end of Bede which was about 140 years the Archbishop of Cantorbury held the Primacy over the whole Island of Britain and of Ireland Thus I think 't is past dispute that a superiority of Government both in Church and State was vested with the English and by consequence in the Crown of England as the Head from the 6 th of King Edgar at the latest to the year 1151. when the Jurisdiction of Anselm Archbishop of Canterbury was submitted to by the Irish as the antient and undoubted Right of that See Nor can it be imagined without some account of the Circumstances that the Superiority and Authority of England should have been lost in less than 22 years when Mr. M. supposes the Pretensions of England to have had their first ground He will have H. 2. his landing in Ireland to have been occasioned only by a fortunate Expedition thither by some of his Subjects a little before in assistance of some of the Princes or Kings of Ireland who had been oppress'd by a too powerful Neighbour and would insinuate as if the Deliverers were only entituled to be paid for the assistance which they gave and he is so bountiful as to allow that England ought to be repaid all their Expences in suppressing the late Rebellion But as England has supprest that Rebellion against the English Crown it appears by what has been above cited that the disputes between the Kings of Ireland only gave H. 2. opportunity and encouragement to assert the Authority of the English Nation and to restore to the Crown the possession of the City of Dublin and so much of the English Pale as could then be gained with such addition as they could make in a just War to secure those Bounds which had been invaded and usurped upon by a barbarous Enemy In this H. 2. was not to be blamed for that Ambition which has carried Princes to make Conquests since his Expedition was no more than he was obliged to as King of England For as the Confessor's Law has it Debet vero de jure Rex omnes terras honores omnes dignitates jura libertates coronae regni hujus in integrum cum omni integritate sine diminutione observare defendere dispersa dilapidata omissa regni jura in pristinum statum debitum viribus omnibus revocare But the King ought of right to keep and defend all the Lands and Honours all Dignities Rights and Liberties of the Crown of this Kingdom with all integrity and without diminution with all his might to bring back
Parliaments of its own as free and independent as England or that it should be governed by the Laws made and to be made by England Mr. Molineux confesses that H. II. within five years after his Return from Ireland created his younger Son John King of Ireland at a Parliament held at Oxford he might have learn'd from the same Authority that in that Parliament he not only disposed of several petty Kingdoms there to hold of him and John his Son but Hoveden has these words which comprehend Lands as well as Governments Postquam autem Dominus Rex apud Oxenford in praedicto modo terras Hiberniae earum servitia divisisset fecit omnes quibus earundem custodias commisserat homines suos Johannis filii sui devenire But after the Lord the King had at Oxford in manner aforesaid divided the Lands of Ireland and their Services he caused all those to whom he had committed the Custody of them to do homage to him and his Son John to swear Allegiance and Fidelity to them Bromton says Apud Oxoniam idem Rex Angliae Johannem filium snum coram Episc regni sui Princip Regem Hiberniae constituit Et postea fecit quosdam familiares suos sibi Johanni filio suo ligantias fidelitates homagia contra omnes homines facere jurare Quibus terras Hiberniae dedit distribuit in hunc modum c. At Oxford the said King constituted his Son John King of Ireland before the Bishops and Princes of his Kingdom And afterwards he made some of his Courtiers to do and swear Allegiance Fidelity and Homage to himself and his Son John against all men To whom he gave and distributed the Lands of Ireland in this manner c. If what the King did in a Parliament was a Parliamentary Act here was an Act of the English Parliament which by Mr. Molineux's Confession impos'd a King upon Ireland to whom they had not sworn any otherwise than as they swore to submit to the English Laws and he should have observed that herein according to his own inference of the making Ireland a separate Kingdom the English Parliament undertook to discharge the Oath which the Irish had taken to be true to H. 2. and his Heirs and sutably to the Legislative Authority over Ireland in this Particular the same Parliament at Oxford disposed of and distributed the Lands of Ireland without expecting any Ratification from thence Here 's a Parliamentary and cotemporary Exposition of what this Gentleman calls the Original Compact between England and Ireland I must agree tho he has not observ'd it that notwithstanding H. Il's Acquisition in Ireland an Irish Native had quiet possession of a Kingdom which he seem'd to claim as chief King over the Irish This was Roderic King of Connaught who upon paying his Tribute and performing his appointed Service was according to Hoveden to hold his Land as he held it before H. II. enter'd Ireland which could not be true in a strict sense unless he were dependent upon the Crown of England before and however this was a Grant after a more absolute Acquisition and three years after Girald holds as do the Irish Statutes that he had conquer'd the whole Land of Ireland Abbat Benedict an Author of that time to be seen in the Cotton Library speaking of H. II. says Concedit Roderico ligio suo Regi Conautae quamdiu ei fideliter serviet ut sit Rex sub eo paratus ad servitium suum salvo in omnibus jure honore Domini Regis Angliae suo He grants to Roderic his Leige-man King of Connaught that as long as he faithfully served him he should be a King under him ready for his Service saving in all things the Right and Honour of the Lord the King of England and his As it appears by Record by the 7 th of King John the King of Connaught had two thirds duly taken from him for not performing his Service or else he never had more than a third of that Kingdom granted for then he acknowledged that he held a 3 d part in the name of a Barony and for the other two thirds proffers the King Duos Cantredos cum Nativis eorundem Cantredorum de praedictis duabus partibus ad firmandum in eis vel faciendum inde voluntatem suam Two Cantreds with the Natives of those Cantreds to let 'em to farm or to do with them what he pleased Thus I take it his Kingdom was as much dependent upon the Crown of England as any Barony in Ireland or England and as subject to Forfeiture And 't is probable that this King was the head of the O Conoghors of Connaught who are 3 E. 2. admitted to be entituled to the English Law But tho the Law of England was not current beyond the English Pale or those Cantreds and Divisions of Irish who continued under Obedience to the English yet the Crown of England has from very antient times not only laid claim to the Lordship over the whole Land of Ireland but their Parliaments have recognized this Right more than once Mr. M. if he had pleased might have found that Acts of Parliament made in Ireland lay a much earlier Foundation of the Right of the Crown of England to the Land of Ireland even than our Confessor's Law does A Statute made in Ireland 1 Eliz among sundry Titles which the antient Chronicles in the Latin English and Irish Tongues alledge for the Kings of England to the Land of Ireland derives one from Gormond Son of Belin King of Great Britain This King our Historians call Gurgunstus and is said to have reign'd in Great Britain 375 years before the Christian Aerd Grafton agreeing with the Irish Statute tells us that in his return from Denmark he met with a Fleet of Spaniards which were seeking for Habitations to whom the King granted the Isle of Ireland to inhabit and to hold of him as their Sovereign Lord. The Statute made in Ireland 13 C. 2. recognizing his Title has these words Recognitions of this nature may seem unnecessary where your Majesty's Title to this your Realm is so clear as that it is avowed in sundry Acts of Parliament heretofore made within this Kingdom in the times of your Majesty's Royal Progenitors of famous memory and SO ANTIENT AS IT IS DEDUCED NOT ONLY FROM THE DAYS OF KING H. 2. your Majesty 's Royal Ancestor BUT FROM TIMES FAR MORE ANTIENT AS BY SUNDRY AUTHENTICK EVIDENCES MENTIONED IN THE SAID ACTS AND RECORDS OF THIS YOUR MAJESTY'S KINGDOM MAY EVIDENTLY APPEAR Since Mr. Molineux allows Acts of Parliament made in Ireland to have full Authority I hope he will confess that he has given a very imperfect and undue account how Ireland became a Kingdom annexed to the Crown of England and thus not here to observe that he need not have gone
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
the Crown of England since as King he could have no other Heir But as this may manifest that the Parliament which made John King of Ireland design'd him no more than a subordinate and vicarious Authority 't is plain he himself did not think he had more in the Seal which he used he stiled himself Son of the King Lord or who is Lord of Ireland Nor is there the least footstep of any Coronation Oath taken by John as King of Ireland or that he ever wore an Irish Crown Notwithstanding that share in the Government of Ireland which John had in his Father's life-time Ireland upon the Father's death fell to R. 1. and the Archbishop of Dublin was assisting at his first Coronation before he went to the Holy War Nor did John ever pretend to be King of Ireland while R. 1. lived more than of England which having attempted while his Brother was in Foreign parts far remote upon his Brother's return he was by Parliament deprived of all his Honours and Fortune And thus at least he lost his suppos'd Royalty of Ireland if it did not expire upon the death of H. 2. and this shews how rightly Polidore judged in calling him Regulus or Viceroy I will therefore admit Mr. M's supposal that R. 1. had not died without Issue but his Progeny had sat on the Throne of England in a continued succession to this day but cannot admit the other part of his supposal that the same had been in relation to the Throne of Ireland since John never had such Throne either before he was King of England nor after and therefore I may well conclude that the subordination of Ireland to the Parliament or even to the King of England need not arise from any thing that followed after the descent of England to King John Nor indeed was John King either of England or Ireland by descent but that Election of the States of the Kingdom of England which made him their King preferring him before Arthur an elder Brother's Son drew after it the Lordship of Ireland as an Appendant to the Crown of England And however if H. 2. had not sufficiently brought the Irish under the English Laws John did after he came to be King of England In the 9 th of his Reign he imposed Laws upon them in a Parliament of England not indeed without the desire and counsel of such English Lords who had Lands in Ireland but then their consent would have been involved in the consent of the majority here tho those Lords should have expresly dissented But the Authority was derived from the consent of the King 's faithful People which is mentioned as distinct from the desire or petition which occasioned the Law then made in a Parliament of England for the expelling Thieves and Robbers out of the King's Land of Ireland For the effectual execution of this Act of Parliament King John's Expedition seems to have been undertaken the next year when he entirely subdu'd his Enemies and confiscated the Estates of some of the English great Men in Ireland Which Confiscation seems to have been after his return to England but before that or at some other time in his Reign he made a Law in Ireland which he commanded to be observed there That all the Laws and Customs which are in force in England should be in force in Ireland and that Land be subject to the same Laws and be govern'd by them This was before any pretence to their having any Charter for a Parliament other than the supposed sending over the modus tenendi Parl. by H. 2. and is before the time that Mr. M. takes a regular Legislature to have been established among them Therefore according to himself we must repute them to have submitted not only to such Laws as had before that time been made in Parliaments of England but such as should be made till they of Ireland should have the establishment of a regular Legislature However Mr. M. will have it that John gave Laws to Ireland not as King of England but as Lord of Ireland and forms a pretty sort of an Argument from the stile of Lord of Ireland as if this were an Argument that 't is not dependent upon the Crown of England so excellent a faculty has he of making contraries serve his purpose But 't is very unlucky that John's retaining this stile is not only an Argument that Ireland is a Dominion or Land appendant to the Crown of England but that John was never King of Ireland which he would certainly have kept up as a distinct Interest if he ever had such a Title separate from the Crown of England H. 3. being made K. of England by the like choice of the States which preferr'd him before Arthur's Sister as they did John before the Brother in concurrence with these States truly acted as Lord of Ireland as might be shewn by numerous Instances In the 18 th of his Reign upon matters signified to him out of Ireland he summoned the Archbishops Bishops Earls Barons and all the great Men or Nobility of the Kingdom of England to a Parliament at London to treat about the State of his Kingdom and of his Land of Ireland And in the 21 of his Reign he sends a Writ to the Archbishops and others of Ireland acquainting them that by the common consent of the Archbishops Bishops Abbots Earls and Barons of the Kingdom of England alterations of the Law of England were enacted as to the Limitations of several Writs which were then required to be observed in Ireland in pursuance of the Statute of Merton In the 37 th of his Reign an Irish man having pleaded that he and his Brother and their Ancestors had always bin faithful to the Kings of England his Predecessors and served them in the CONQUEST OF THE IRISH they are by peculiar licence under the Great Seal of England admitted to enjoy by descent as Englishmen Which was an alteration of the Law and Custom of Ireland as to those particular Persons without any Act of Parliament there Indeed but four years after 't is recorded that 't was long before and many Ages past which must reach beyond the Expedition of H. 2. provided and yielded by the assent and desire of the Prelats and great Men of the Land of Ireland that they should be bound by the Laws us'd in the Kingdom of England Yet the same Record restrains this to the consent of only the English of the Land of Ireland However 't is beyond dispute that the English Laws both made and to be made in England were then held to reach as far as the English Interest in the Land of Ireland and this according to the Record 18 H. 2. above referr'd to was provided de communi Consilio Regis by the King 's Common Council tho by what
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
venientibus capietis ac dilectus Fidelis noster Nic. de Clere Thes nost Hibern testificatus fuerit coram nobis quod vos ad mandatum ejusd Nic. magnam partem pecuniae provende consuetud antedict in clausuram scaccar nostri Dublin posuistis nos ea de causa c. The King to the Bayliffs and honest Men of Dublin Greeting since in aid of walling your Town we lately by our Letters Patents granted that you should take some Customs to a certain day of every thing to be sold coming to that Town And our beloved and faithful Subject Nic. de Clere Treasurer of Ireland has certified us that you at the command of the said Nicholas have employed great part of the Money arising by those Customs to the enclosing or repairing the Exchequer at Dublin Therefore c. The King by his Great Seal of England continues the Tax for Three Years longer than his first Grant and allows of the applying part of it to an end very different from that of the Walling the Town For a yet farther Evidence of the more absolute Dominion which E. 1. exercis'd over Ireland than he pretended to in England I shall shew that he took to himself Authority to set aside what is supposed to have been setled by an Ordinance in the seventeenth of his Reign One of the said Ordinances provides That neither the Justice of Ireland nor any other of the King's Officers by colour of their Office take Victuals from any Person without his Consent unless in case of necessity and that by the assent of the chief of the King's Council of those Parts and by Writ out of the Chancery of Ireland And yet in the next Year after this Ordinance is supposed to have been made the King as a particular Indulgence to the Citizens of Roscommon grants that the Constable of Roscommon or other the King's Officers shall take no Victuals or other things of them without their Consent unless there be a necessity for it in time of War And this exemption is only by a Patent during Pleasure But in truth this was no violation of the Ordinance for the State of Ireland For besides that I shall shew when 't was made and how in another Reign 'T is certain it could not be in a Council at Nottingham in the Octaves of St. Martin not only as may appear to any one who will trace the Close and Patent-Rolls and the Use of the Great Seal which went along with the King from his Landing at Dover on the 12th of August to the 16th of November during which time the Seals were far from Nottingham but chiefly because there was a Parliament at Westminster appointed to be held on the Crastino Martini which 't is to be presumed met accordingly tho Mr. M. is positive that E. 1. held no Parliament in the 17 th of his Reign But for his Conviction in this particular during d the K's Absence in Foreign Parts Edmund Earl of Cornwall being Custos Dated the Writs among which there was one referring a Matter to the Judgment of the King and his Council in the next Parliament to be after Easter And to satisfie Mr. M. that there was no need of a Council at Nottinghâ—m nor could there be one the Octaves of St. Martin it happens that on the 14th of that October a Writ issued to the Sheriff of Nottingham acquainting him of a Commission to certain Persons to heaâ— the Miscarriages of the King's Officers in that Country and to give me an account thereof at the next Parliament and therefore commands the Sheriff to Summon all Parties aggrieved to be at Westminster that year in the Morrow of Sanct Martin I must own that I have not found any Record of a Writ of Summons for any of the Members to come to Parliament that Year â—or has Sir William Dugdale found any to the Lords tâ—â—l the 22d and yet 't will be agreed that there were Parliaments between the 49th of H. 3 and the 22d of E. 1. and 't is certain the Statute of Westm 1. 3 E. 1. is express that the Archbiâ—â—â—ps Bishops Abbots Priors 〈◊〉 Barons and all the Comâ—â—nalty of the Land were Summoned to that General Parliament and assenting to the Laws then made Mr. Prynn as I take it had not seen any Writ of Summons to the Commons till 26 E. 1. Yet I have found in the Close-Roll of 18 E. 1. as Dr. Brady and Mr. Petyâ— have in the Bundle of Writs this following Rex Vic. Northumb cum per Com. Bar. quosdam alios de proceribus regni nostri nuper fuissemus requisiti super quibusdam â—am cum ipsis quam cum aliis de comitatibus regni illius colloquium habere velimus tractatum Tibi pâ—aecipimus quod duos vel tres de discretioribus ad laborandum potentioriâ—us militibus de Com. praed eligi eos ad nos usque Wesâ—m venire facias fine dilatione Ita quòd sint ibid. à die Sancti ibidem a die Sancti Johannis Baptistae prox fatur in tres septimanas ad ultimum cum plenâ potesâ—ate pro se totâ Communitate comitat praed ad consulendum consentiendumpro se communitat illâ hiis quae Com. Bar. Proceres praed tum duxerint concordand T. R. apud West 14 die Junii The King to the Sheriff of Northumberland For asmuch as we were lattly in a special manner entreated by the Earls Barons and some others of the Peers or Nobility of our Realm that we would have a Colloquy and Treaty upon some Matters as well with them as with others of the Counties of the Realm We require you without delay to cause to be Elected and to come to us as far as Westminster two or three of the more discreet and more able to travail of the Knights of the said County So that they be there at the latest within three Weeks from the Day of St. John the Baptist next ensuing with full power for themselves and all the Commonalty of the said County to consult and consent to those things which the aforesaid Earls and Barons shall then think fit to be agreed Test the King at Wesâ—m the 14th day of June This Dr. Brady in his Answer to Mr. Petyt more truly than he is aware calls a Summons to a Parliament However in his Introduction he will have it that the Laws were then made by the King and his Peers before the Knights of the Shires came the Statute of that time saying that the Parliament was holden in the Quinzism of St. John and that the Laws were made at the Instance of the Great Men. But he might have observed 1. That the Provision then made is called a Statute 2. That the Council wherein it pass'd is called a Parliament 3. That the Matter enacted was a general Law and of general
was lost they direct an enquiry with declared disposition to have it renewed 6. These Boroughs whether holding of the Crown in chief or of Great Lords were either Baronies or parts of Baronies upon the account of Knights Service or Honors by reason of other free Tenures and their Charters that they should hold freely and honourably as many of them run and thus the Members in Parliament who serv'd for these Baronies or Honours were part of the Baronage of the Kingdom Not but that sometimes Barony and Honour are used without distinction concerning them and thus that ancient Borough of Barnstaple which held of the Lord Tracy is in the same Record call'd both a Barony and an Honour Which Honour as appears by this instance was not limited to immediate Tenure of the Crown and that this was not derived from the grant of a reputed Conqueror might be proved by numbers of Authorities of which I shall here content my self with one out of Doomesday-Book In Norwic erant temp E. MCCCXX Burgenses c. Tota haec villa reddebat TRE 20 l. Regi Comiti 10 l. In novo Burgo XXXVI Burgenses and VI Anghci De hoc toto habebat Rex 2 partes Comes tertiam modo XLI Burgenses Franci in dominio Regis Comes Rogerus Bigot habet L. sic de aliis Tota haec terra Burgensium erat in Dominio Comitis Rad. concessit eam Regi in commune ad faciendum Burgum inter se Regem Ut testatur Vicecomes In Norwich there were in the time of Edward 1320. Burgesses All this Town in the time of King Edward yielded the King 20 l. and the Earl 10 l. In the new Borough there were 36 Burgesses and six of them English Of all thus the King had two parts and the Earl the third Now there are 41 Burgssses in the Kings demeasn and Earl Roger Bigoâ— has 50. and so of others And this Land of the Burgesses was in Earl c Ralphs Demeasâ— and he granted it to the King in common to make a Borough between him and the King As the Sheriff attests This Earl was Ralph Guader or Wader who continued Earl of Norfolâ— or at least of Norwich from within the Confessor's Reign till the 9 th or 10 th of W. 1. 7. The Freemen or at least they who had Borough holds in these or in some of them are in Doomsday-Book called Barons as particularly in the Borough of Warwick Et in Burgo de Warwic habet Rex in Dominio suo CXIII Domus Barones Regis habent CXII de quibus omnibus Rex habet geldam And in the Borough of Warwick the King has in his demeasm 113 Hoâ—ses and the Kings Barons have 112. of all which the King has Aid 8. They who were interested in the Government of these Boroughs and had Right to look after their common concerns could not but be Barons as properly as the Free hold Tenants of Lords of Mannors Freeholders who were Judges in the County Courts and the Freemen of London who are call'd Barons in several Records and other undoubted Authorities and the Barons of the Cinque Ports Of Dover in particular Dooms-day Book says in the time of King Edward it yielded 18 l. of which King Edward had two parts and Earl Godwin the 3. And a Charter c to this Port in the beginning of King John's Reign confirms to his Men of Doura the Confessor's Charter together with the Charters of W. 1. and other Kings after the reputed Conquest 9. If 't is to be thought that no Citizens and Burgesses were at the Parliament 17 E. 1. because no Summons appears for other Commons besides the Knights of the Shires by the same reason 't is to be thought that none of the Great Lords were there no Summons to them appearing 10. In the Writs for chusing Knights of the Shires there was no occasion to mention the choice of others and thus 12 E. 2. Only the Earls Barons and Commonalty of the Counties are spoken of as granting an 18 th part of their Goods but they would be very much deceiv'd who should think that no others were at that Parliament for the same Record shews that the Clergy granted a 10 th and the Cities and Boroughs a 12 th 11. 'T is very probable that at that time the Cities and Boroughs had the Writs directed to them in particular to be return'd by their Headborough or other Officer or else by the Community there Thus in the 14 th of King John a Summons to the Army is sent to the Headborough and Honest Men of Canterbury so to Dover Rochester Gildford and a great many other Places And the very next Year particular Writs are sent to the Honest Men of Canterbury the Mayor and Barons of London the Mayor and Honest Men of Winchester c. and so to all the Boroughs and Demesns of the Crown not only referring them to the Justice or Custos of the Realm but desiring an Aid of them which Mr. M. must agree to have been desired in as true a Parliamentary Meeting as those which he cites of the time of H. 3. in relation to Ireland This I hope may not be thought an unprofitable digression from the supposed Ordinance 17 E. 1. but may sufficiently evince by what Authority it must have been made if there were any such of that time and that the King and his Counsel pretended not to settle the State of a Dominion annex'd to the Crown of England without consent of the States But tho' the King's Counsel did not then act in Parliament matters otherwise than Parliamentarily yet 't is certain that they did exercise an Ordinary Jurisdiction in relation to Ireland as well as to England either as Committees or Tryers of Petitions appointed by the Lords or otherwise tho' the bringing a Cause from the Lords in Ireland to the House of Lords here is one of the circumstances in the present juncture of Affairs which seems to require Mr. M's learned Disquisition In the Bundle of Petitions to the Parliament in the time of E. 1. there are some endorsed as broâ—ght before the King some before all the Council and as the Method of following times explains this Matter there had been appointed Receivers and Tryers of Petitions concerning Ireland for several are receiv'd from thence and authoritatively Answered There 's one from Jeffery de Geymul who complains of the Barons of the Exchequer in Ireland for sending within his Jurisdiction a Commission of enquiry who Sold Pollards to the prejudice as he alledged of the Franchise which H. 2. had granted to the Ancestors of his Wife Maud de Lacy. This Commission was manifestly founded upon the Record of the Statute made here as is shewn above enrolled in the Exchequer of Ireland by Order from hence This the Barons there obey'd and held that by Virtue of that they might cause Commissions of Enquiry to
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-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
do some service to my Country in shewing 2 ly The true Foundation of that Right which England is possessed of in relation to Ireland and what are Mr. Molineux's principal Mistakes Omissions and wrong Comparisons and Inferences concerning it Here I hope to make it evident 1. That he mistakes the Grounds for the submission of Ireland to H. 2. as well as the Nature of it and omits material Passages which may illustrate that matter 2. That if he had been as conversant in Histories and Records as he would be thought he could never have had assurance enough to assert that England may be said much more properly to be conquer'd by W. 1. than Ireland by H. 2. 3. That he is as much mistaken in his comparison between Scotland and Ireland and that matter of his own shewing or admission might have convinced him of an essential difference 1. This Gentleman pretends to give the History of the Expedition of the English into Ireland which he supposes to have been in the Reign of H. 2. and that all the Right which has been acquired by England to have any Government or Superiority over that Nation was derived from within that King's Reign Which manifests his having seen very little of our English Antiquities and his not attending to what Irish Acts of Parliament might have taught him The Confessor's Law under the Title of the Rights and Appendages or Dependencies of the Crown of England expresly names Ireland as one which it supposes to have been first annexed to the Crown of England by King Arthur Accordingly besides other Authorities which might be produced a very Antient Manuscript in Latin Verse in the Cotton Library ascribed to a Gildas who lived in the Year 860. speaking of several things done by that King in this British Kingdom says His ita dispositis in regnum tendit Ybernum These things thus settled he for Ireland goes Another Manuscript in the Cotton Library treating of the number of the Courâ—ies of England and the Countrys and Islands which of Right and without doubt belong to the Crown and Dignity of the Kingdom of Britain and the several Laws or Customs by which they were governed among the places subject to the Danelege mentions Man the Orcades Gurth and the other Islands of the Western Ocean about or in the way towards Norway and Danemark within which we may well think Ireland to have been meant since the Isle of Man is one of the Islands there taken to be about bordering upon or in the Road to Norway and Denmark Tho the Confessor's Law places the Foundation of the Right of the Crown of England to Ireland in the acquisition of King Arthur it must be agreed that this was so antiquated and so many Changes had happened in the State of this Nation between his time and King Edgar's that he might well have no regard to any Right from King Arthur And however might suppose himself to have been the first of the Anglo-Saxon Kings who had subjected Ireland or the greatest part of it to the Crown of England which that he did we have the Testimony of his memorable Charter Ego Eadgarus Anglorum Basilius omniumque Regum insularum quae Britanniam circumjacent cunctarumque nationum quae infra eam includuntur Imperator Dominus Gratias ago Deo Omnipotenti Regi meo qui meum Imperium sic ampliavit exaltavit super Regnum patrum meorum qui licet Monarchiam totius Angliae adepti sunt à tempore Ayelstani qui primus Regum Anglorum Nationes quae Britanniam incolunt sibi armis subegit nullus tamen eorum ultra ejus fines Imperium suum dilatare aggressus est Mihi autem concessit propitia divinitas cum Anglorum imperio omnia Regna Insularum Oceani cum suis ferocissimis Regulis usque Norvegiam maximamque partem Hiberniae cum suâ nobilissimâ civitate Dubliniâ Anglorum regno subjacere Quos etiam Armis meis imperiis colla subdere Dei juvante gratiâ coegi I Edgar King of the English and Emperor and Lord of all the Kings of the Islands which lie about Britain and of all Nations that are included within it give Thanks to God Almighty my King who hath so inlarged and exalted my Kingdom above the Kingdom of my Ancestors who altho they had gain'd the Monarchy of all England from the time of King Athelstan who was the first of the Kings of the English that brought under him by Arms the Nations which inhabit Britain yet none of them attempted to stretch his Empire beyond its bounds But the propitious Divinity has granted me with the Empire of the English to put under the Dominion of the English all the Kingdoms of the Isles of the Ocean with their fiercest little Kings as far as Norway and the greatest part of Ireland with its most noble City Dublin Even all those by the help of God's Grace I have compell'd to submit their Necks to my Commands From this time 't will be evident to any who observe the stiles of our Kings till H. II's time that the Authority of England over Ireland was taken to be included under the stile of King of the English Saxons of Britain of the Island of Albion or the like not but that for several Reigns before the time of H. II. Parliaments in which the King's Charters pass'd were often careful to have the stile more expressive of the Title to the Dominions out of England For instances of both kinds Edgar after the Charter above cited stiles himself Basileus dilectae Insulae Albionis subditis nobis sceptris Regum Scottorum Cumbrorumque ac Britonum omnium circumcirca Regionum King of the Beloved Island of Albion the Scepters of the Kings of the Scots the Cumbers and the Britons being subject to us and of all the Regions round about In another Basileus Anglorum Imperator Regum Gentium King of the English and Emperor of the Kings of Nations After this King Ethelred stiles himself sometimes Ego Adelred totius Albionis Monarchiam gubernans I Athelred governing the Monarchy of all Albion Subscribes Rex Anglorum King of the English Sometimes Ego Athelred totius Britanniae Basileus I Athelred King of all Britain Sometimes Ego Ethelred Britanniae totius Anglorum Monarchus I Ethelred Monarch of all the Britain of the English Sometimes Ego Ethelred totius Insulae I Ethelred King of the whole Island Subscribes Rex Rector Angulsexna King and Ruler of the Anglo-Saxons That Ireland and other Kingdoms and Dominions were included within this stile will appear by other Charters of the same King Thus he stiles himself Totius Anglorum Gentis Basileos caeterarumque Nationum in circuitu persistentium primatum gerens King of all the English Nation and having the Supremacy over the other Nations living round about At another time he stiles
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
Concern it being for the encouraging of Purchasers and engaging the more Persons to a National Interest by Propriety in Land which till that time was in much fewer Hands because whoever purchased any part of an Estate had been liable to be charged with all the Rents and Services which lay upon the whole and there was one other necessary Provision against Alienations in Mortmain 4. The Precept to the Sheriff was to cause the Election to be made forthwith and to take care that the Parties were â—ound to be at Westminster by three Weeks after the Feast of St. John at the farthest The Day when the Parliament was holden was but 5 or 6 Days before which shews that 't is absurd to imagine that there should have been a Law made of that immediate consequence to all Owners of Land before the Knights of the Shire came up not only because they being obliged to be at Parliament by such a Day at the latest may well be supposed to have come 5 or 6 Days before the utmost extent of their time to avoid the Forfeitures of the Bonds which they us'd to give for their Appearance but chiefly because as 't is well known whenever a Law passes 't is in Judgment of Law held to have pass'd the first Day of the Session which Day might have been agreed at their former Meeting Nor is it absurd to believe that there might be a Summons to require the Sheriffs to secure Full Parliaments even tho the Days of Meeting and of Elections below might have been certain The true reason why so few Writs of Summons of those early times are to be found seems to be that once at least in a Year the Parliaments met of course The Confessor's Law speaks of the Calends of May as the fix'd Day In the 1st of E 1. the Custos of the Realm as appears above in the King's Absence issued Writs tho not for Elections to Parliament yet returnable into the Parliament to be holden next after Easter without mentioning any Day as if 't were commonly known but no Parliament being holden soon after Easter because of the King 's being out of the Land a Return into a Parliament appointed to sit after the King 's Landing was to a Day certain But that at the beginning of E. 1. the time of holding a Parliament was look'd upon as so fix'd that there was no need of Summons appears by that King's Letter to the Pope 3 E. 1. referring him to the Deliberation of the Peers of the Kingdom in a Parliament which used to be holden in England about the Octaves of the Resurrection of our Lord. 5. If the mention only of the Instance of the Great Men or Nobility be an Argument that the Law was then made before even the Knights of the Counties came up tho Summoned to Consult and Consent the many Laws which have pass'd immediately upon the King's Answer to the Petition of the Commons would argue as strongly that those Laws were made without the consent of the Lords but as in such case either they were included as part of the Community of the Kingdom or else the King answered by their Advice So at the making the Statute 18 E. 1. either the Commons were under the Word Magnates as the lower Nobility or Men dignified by being Senators or else the Great Lords finding themselves chiefly agrieved as being unable to pay their Debts because none would buy their Lands this Law might have pass'd chiefly â—t their desire But then since 't is manifest it was in Parliament 't was by the Consent of the Commons but I rather think that the Commons were then included under Magnates becâ—â—â—e I find them so in Times after thâ—s and that Petitions were made to them with as high Ascriptions as were given to the Great Lords In the 1st of E. 3. a Statute was made as one Record has it by the Common Council of the Kingdom as another by the King the Prelates Earls Barons and the Commonalty of the Realm and yet an Historian well conversant in the Records and common acceptation of Words in that Time speaking of this very Parliament and of the Queen Mother's coming to London with E. 3. her Son says Thither also Convened the whole Nobility of the Kingdom having been before Summoned to the holding a Parliament In after Times there are numbers of Petitions to the House of Commons from Persons of Quality from the City of London and others To the a Most Honourable or Right Honourable and Most Wise the Commons in this present Parliment Assembled The Honourable and Most Wise and the like c But some who will admit that the Knights of the Shire who indeed are in many Records call'd Grands of the Counties were part of the Magnates 17 E. 3. will have it that the Citizens and Burgesses were not because 1. They in those Times used to be distinguished by the Name of Commons from the Knights of the Shires 2. There 's no mention of any Summons tothem in the Records of 18 E. 1. when there was to the Knights of the Shires But for a full answer to this I desire it may be considered 1. That the Meeting 17 E. 1. appears by the Statute then made to be a Parliament that Dr. Brady himself has yielded that the Cities Boroughs and Cinque Ports and Vills had by King John's Charter right to be of the Common-Council of the Kingdom which is the Phrase most generally used in the Ancient Register of Writs to denote a Parliament 2. There were Boroughs long before the reputed Conquest As for instance St. Edmund's Bury or Burgh made a Borough in the Time of King Edmund confirmed in the Reigns of Cnute the Confessor W. 1. and other Kings 3. Boroughs frequently occur in Dooms-day Book that great Survey taken in the Reign of W. 1. and are mentioned as such in the Time of Edward the Confessor 4. No one Charter of ancient Times since W. 1. can be found giving any Borough right to send Members to Parliament but that has seem'd the consequent of being a Borough having a Gild for Merchandize and answering to the King or other chief Lord as one entire Body upon which account they appeared by Representation while individual Tenants were in the great Councils upon their Personal Right 5. That for asserting the Right of Boroughs to be represented in Parliament it generally was enough to plead that they were Boroughs yet one instance at least is to be found within two Reigns after the time of our present enquiry where a Borough Pleads or Alledges in Parliament that they had been made a Borough in King Athelstan's time and ever after had been represented in Parliament by two Members of their own chusing and this the then Parliament or the King's Council in it were so far from thinking improbable that upon that Borough's Allegation that the Charter
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
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