to the antient and due state the dispersed dilapidated and lost Rights of the Kingdom This was not only incumbent upon the Prince but upon the People also who were sworn Brethren to defend the Kingdom against Strangers and against Enemies together with their Lord and King and with him to keep his Lands and Honours with all Fidelity Accordingly when the Pope cited E. 1. to answer judicially before him concerning his Right over Scotland the Parliament say The Premises would manifestly turn to the disherison of the Right of the Crown of the Kingdom of England and of the Royal Dignity and notorious subversion of the state of the said Kingdom And also to the prejudice of the Liberties the Customs and Laws of our Ancestors To the observation of which we are bound by virtue of the Oath we have taken and which we will maintain with all our Power and by God's assistance will defend with all our might Nor also do we or can we as indeed we may not suffer our Lord the King even tho he would to do or in any wise attempt the Premises c. Here 's a ground to justify H. 2. and the People of England at that time which this Gentleman never thought of And Giraldus Cambrensis an Author received by him and an Irish Parliament has shewn another from the nature of the Irish the necessity of their Reformation and that Authority which the generality of Christians in those dark Ages placed in the Pope As to the Character of the People after Girald had condemned their Clergy for not doing their duty among them he says Ut enim de perjuriis eorum proditionibus de furtis latrociniis quibus totus hic populus prope modum immopraeter modum indulget de vitiis variis immunditiis nimis onormibus quas topographia declarat ex toto non emittamus Gens haec Gens spurcissima Gens vitiis involutissima Gens omnium Gentium in fidei rudimentis incultissima For not wholly to omit speaking of their Perjuries and Treasons of the Thefts and Robberies which this whole people in some measure rather without measure indulges of their various vices and uncleannesses too enormous which our Topography declares This Nation is a Nation most vile a Nation the most drown'd in Vices a Nation of all Nations the most ignorant in the Rudiments of Religion This being the nature of the People at that time there might seem if there had been no prior Title to have been as much a right of occupancy as any Nation has had by the first possessing the Lands of Savages but if the right of civilizing the barbarous part of Mankind was not sufficient that Power which the then general consent of Nations had placed in the Pope joined with the other made a Title which none but the Barbarians then disputed This H. 2. had amply and formally Giraldus Cambrensis not only informs us that the Pope gave H. 2. licence to subdue the Irish but exhibits the Bull at large which reciting the King's Intention of entring the Island of Ireland Ad subdendum populum illum legibus vitiorum plantaria inde extirpanda de singulis domibus annuam unius denarii B. Petro velle solvere pensionem jura Ecclesiarum terrae illius illibata integra conservare To subdue that people to Laws and extirpate the plantations of Vices from thence and that he will pay to St. Peter the annual Pension of a Penny out of every House and preserve the Rights of the Churches of that Land unprejudiced and entire Declares the Pope's approbation of that King 's attempting that Island for enlarging the bounds of the Church for restraining the course of Vices for correcting their Manners and sowing Virtues for the encrease of the Christian Religion And this Pope desires the King's purpose may take effect for the Honour of God and Salvation of that Land and that the People of that Land should receive him honourably and reverence him as their Lord. Jure nimirum e contrario illibato integro permanente salva B. Petro S. R. E. de singulis domibus unius denarii pensione The Right however remaining unprejudiced and entire and saving to St. Peter and the holy Church of Rome the pension of a Penny out of every House The Right of the Church was hereby reserv'd unprejudiced the Recital seems to make it to relate to the particular Churches and this Mr. Molineux if he please may take to amount to such a Freedom as exempted them from the Jurisdiction of the Pope as well as of the See of Canterbury but he may easily observe that the Superiority of both is fully reserved and implied under jure illibato integro permanente It thus appearing that this Gentleman had not attended to the true grounds of H. 2 d's Attempt upon Ireland I shall consider what Submission the Irish made to him and in what sense he and his Parliament took it 'T is evident beyond contradiction that they did not submit to him as to a King whom they chose to govern according to their own Laws but as one that imposed and was to impose Laws upon them Of this Mr. Molineâ—x seems so much aware that where he speaks of the submitting to H. 2. he only mentions the general terms of receiving him for King and Lord of Ireland and swearing Allegiance to him and his Heirs or the like but the swearing to the Laws of England he places among the Conâ—essions as if they were no otherwise subject to them than the People of England 'T is to be observed for proof that the Submission was truly voluntary and that there was such a Consent as is essential to the making Laws to bind Posterity that upon H. 2's landing at Waterford several of the Irish Kings and almost all the Nobility of Ireland flock'd in to him that the Archbishops Bishops and Abbats of all Ireland receiv'd him for King and Lord of Ireland and swore to him and his Heiâ—s binding themselves by their Charters to perpetual Allegiance and that after their example and in like manner the Kings and Princes there present receiv'd him for Lord and King of Ireland Upon which I need not observe the known difference taken in Pliny and other good Authors between Dominus and Princeps since after this the King held a Council at Lismore cited by this Gentleman in a wrong place Ubi leges Angliae sunt ab omnibus gratanter receptae juratoriâ cautione confirmatae Where the Laws of England are thankfully received of all and confirm'd by a juratory Caution And for a farther Security the King possest himself of several Cities and Castles which he put into safe hands but of this Mr. M. takes no notice As a cotemporary Exposition is ever of greatest Authority let 's see whether the meaning of this was that Ireland was to be governd by
ask him what sort of Law he takes the above-cited Statutes of Ireland to be and shall afterwards shew that they have all along submitted to such a Conquest or Acquisition as gives a Right to the imposing of Laws 3. But since he is pleas'd to say As Scotland tho the King's Subjects claims an exemption from all Laws but what they assent to in Parliament so we think this our Right also and going upon the supposition of Ireland being a Kingdom as distinct from England as Scotland he frames an Objection that however they may be restrain'd by War from doing what may be to the prejudice of England the stronger Nation If this may be he asks why does it not operate in the same manner between England and Scotland and consequently in like manner draw after it England's binding Scotland by their Laws at Westminster As to Scotland not here to enter into the Dispute between the Lord Coke and the rest of the Judges who resolv'd Calvin's Case and the House of Commons of that time nor yet into the Question concerning the Scotch Homage whether 't was for the Kingdom of Scotland or only for some Lands which their Kings held of the Crown of England 'T is enough to observe that during the Heptarchy here we often had one King who was Rex primus to whom the others were Homagers and obedient in the Wars for common Defence of the Island yet each King had his distinct Regalities and the Countrys their several Laws and Customs and distinct Legislatures for Lands and other Rights and Things within themselves This 't was easy to conceive that Scotland had and thus both there and here under the Heptarchy the several Kingdoms notwithstanding Homage to one King who had the Primacy were under separate Allegiances as the respective Subjects were not bound to the same Laws tho the States of the Kingdom did Homage as well as the King When the Right to the Crown of Scotland came afterwards in J. 1. to be in the same Person who had the Crown of England and that without any new Acquisition by the Crown or Kingdom of England there was no merger of the less Crown and 't is certain that in the Judgment of Law Palatinates fallen to the Crown continue distinct Royalties But if for the keeping a Kingdom distinct whether in the Person of the same King or as an Appendant to his Imperial Crown a distinct Legislature is necessary as well as a distinct Jurisdiction then Wales which in many of our Statutes is call'd a Dominion was no distinct Dominion or Principality if it at any time continued in the Crown without having Parliaments of their own or being represented here by Members of their own chusing but thus it was with Wales from the 12 th of E. 1. to the 34 th of H. 8. in right of E. 1 st's Conquest as Sir John Davis or the Judges in his time call the Acquisition of that Dominion and as 't is there E. 1. changed their Laws and Customs as he had express'd in his Charter or the Statute of Rutland which follows Divinâ providentiâ terram Walliae cum incolis suis prius nobis jure feodali subjectam in proprietatis nostrae dominium totaliter cum integritate convertit coronae regni nostrae annexit By the Divine Providence the Land of Wales with its Inhabitants before subject to us by feudal Right we have turn'd wholly and entirely into the Dominion of our Propriety and annexed it to the Crown of our Kingdom And as to their Laws and Customs Quasdam de consilio procerum regni nostri delevimus quasdam permisimus quasdam correximus ac etiam quasdam alias adjiciendas faciendas decrevimus Some by the Counsel of the Peers of our Kingdom we have abrogated some we have permitted some we have corrected and besides some others we have added and decreed to be put in execution Here is a Title understood at that time of taking a Forfeiture for Rebellion against the Lord of the Fee and in consequence of this the King and his Peers in Parliaments took upon them to exercise a Legislative Power over Wales But notwithstanding that Wales was thus united and annexed to the Imperial Crown of England and absolutely subjected to its Legislature yet as is held in Davis's Reports this Principality of Wales not being govern'd by the common Law was a Dominion by it self and had its proper Laws and Customs That Report shews Wales by reason of these different Laws and Customs to be more distinct and separate from the Kingdom of England than Ireland is and that a Tenure of the Prince of Wales should not after its reduction under the Subjection of England become a Tenure of the Crown in chief but that it should be so in relation to Tenures of a County Palatine in Ireland as well as England because such a County in either Land was originally a parcel of the Realm and derived from the Crown and was always govern'd by the Law of England and the Lands there were held by Services and Tenures of which the common Law takes notice altho the Lords have a separate Jurisdiction and Seigniory separate from the Crown But that Tenure in Chief in Ireland as well as England could be no other than of the Crown of England appears not only by the Grants to the Electors Palatine or Lords Marchers of Ireland but in that Ireland was not raised into a Kingdom till H. 8's time The mention of Palatinates may well occasion a Comparison between the Land of Ireland and the County Palatine of Chester a distinct Royalty in the Principality of Wales that had its Parliaments within it self as 't is very probable from before the time of W. 1. it being certain that Hugh Lupus enjoyed that Earldom by Judgment of the Lords if not the Great Council in the time of W. 1. and their Parliaments may be traced from within the time of H. 3. downwards to their first having Representatives in Parliaments of the Kingdom 34 H. 8. Their provincial Parliaments were chiefly if not only for the granting Aids to the Crown but notwithstanding their being represented in Parliaments at home yet Laws were made here in the superior Parliament for the governing the Inhabitants of the County of Chester Now without considering whether Cheshire was a Colony from England or from Wales or mix'd or else a place exempt without regard to the being any Colony I may well hold that tho from before the time of W. 1. they had the privilege of being tax'd only by themselves or with their own Consent yet their Parliament was subordinate to the Great Council of the Kingdom of England and 't was no violation of the Right of their Parliament for the National Council to give them Laws for their better Government and to restrain 'em from acting to the prejudice of the Crown and
Council it must have been provided will more fully appear afterwards I may here explain it by an Instance in that Reign All must agree that the Provisions of Oxford in the 43 d of H. 3. and referr'd to in the Records of the next year were made in as true a Parliament as any in that Reign before the 49 th 't is call'd a Parliament by good Authors and the word is used in the Records of the next year in relation to a meeting on the Borders of Wales The Ordinances and Provisions made at Oxford were drawn up by 12 chosen by the King and 12 by the Commons concerning which the Record has these words Anno ab incarnat domini 1259. Regni autem H. Regis fil Regis J. 43. in quindena St. Mic. conven ips domino Rege magnatibus suis de communi consilio consensu dictor Regis magnatum factae sunt provisiones per ipsos Regem Magnates In the year from the incarnation of our Lord 1259. but of the Reign of K. Henry Son of K. John the 43d the said King and his great Men being assembled in the Quinzism of St. Michael Provisions were made by the Common Council and consent of the said King and great men And yet some of the Entries in the same Roll mentioning Provisions then made are per magnates nostros qui sunt de consilio nostro By our great Men of our Council Others Per magnates de Consilio meo By the great Men of our Council As if 't was by the sole Authority of the King and such noble Men as were of his Privy or Private Council wheâ— those Provisions were certainly made in full Parliament and this was the Council from whence Ireland then receiv'd its Laws However from a Charter in the first of that King's Reign Mr. M. would infer that the English there had their independent Parliaments then established or confirmed tho he afterwards admits that during that King's Reign they might have been bound by Laws made here for want of a regular legislature establish'd amongst them The Charter or rather Writ with which a Charter was sent runs thus Rex Archiepisc Episc Abbatibus Comitibus Baronibus Militibus omnibus fidelibus suis per Hiberniam constitutis salutem fidelitatemvestram in Domino commendantes quam Domino Patri nostro semper exhibuistis nobis estis diebus nostris exhibituri volumus quòd in signum fideliâ—aâ—is vestraetam praeclarae tam insignis libertatibus Regno nostro Angliae à patre nostro nobis concessis de gratiâ nostrâ dono in Regno Hiberniae gaudeatis quas distinctè in scriptum reductas de'communi consilio omnium fidel nostrorum vobis mittimus signatas Sigillis Domini nostri G. Apostolicae sedis Legati fidelis nostri Comitis Mareschalli Rector is nostri regni nostri quia sigillum nondum habuimus easdem processu temporis de Majori consilio proprio Sigillo signatur Teste apud Glost 6. Feb. The King to the Archbishops Bishops Earls Barons Kts. and all our faithful Subjects constituted throughout Ireland Health Commending your fidelity in the Lord which you always shewed to your Lord our Father and are about to shew to 〈◊〉 in our days we will that in sign of your fidelity â—o remarkable so eminent you enjoy in our Kingdom of Ireland the Libâ—rties granted to our Kingdom of England by our Father us which distinctly reduced into Writing we send you by the Common Counsel of all our faithful People Sealed with the Seals of the Lord G. Legate of the Apostolick See of our faithful Subject W. Earl Marshal Regent of us and our Kingdom because we have not yet a Seal intending in process of time by consent of a greater Counsel to seal them with our own Seal Teste at Gloster 6. Feb. How specious soever this may seem 't will neither prove Ireland to have been a Kingdom so early nor to have had a grant of the English Liberties in the same manner as the English enjoyed them that is so as to have no Law imposed upon them without their express and immediate consent to that very Law For 1. 'T is not to be suppos'd but that if Ireland had been a Kingdom before this Charter H. 2. and other Kings of England would have stiled themselves Kings of Ireland rather than Lords because of the greater Dignity of Kingship unless Lord was chosen as implying more absolute Power which would argue that Ireland did not enjoy the English Laws with equal Freedom 2. This Writ mentions no Liberties granted to Ireland but what had been granted to England which besides the improbability that Ireland should 1 H. 3. have a Charter of the same form with that which did not pass in England till 8 Years after shews the spuriousness of the suppos'd Charter preserved in the red Book of the Exchequer at Dublin as dated the November before the Charter sent the 6th of February and however the constant method of sending Laws from hence to be applyed to the use of the Irish without any alteration may sufficiently detect that Charter which has the City of Dublin instead of London 3. The method of sending to Ireland the Laws made here besides what appears upon the face of the Record 6. Feb may satisfie any Body that 't was only a Writ which went along with a Charter or Charters of Laws passed in Parliament here 4. This Writ was before any confirmation of the English Liberties by H. 3. other than general at his Coronation and therefore bating such Confirmation the Charter of Liberties then sent into Ireland must have been King John's which if it be read according to the due distinction of Periods and that Translation which the course of Records both before and after enforces and which the prevalence of Truth has obliged Dr. Brady to yeild to the giving up his whole Controversie with Mr. Petyt and the Author of Jani Anglorum Facies Nova makes express Provision for the City of London all Cities Burroughs and Vills of the Kingdom of England to enjoy all their Liberties and Free-Customs and among the rest to be of or to be represented in the Common Council of the Kingdom But Ireland had no City of London to claim this Privilege nor could any City of Ireland be included any otherwise than as part of the Kingdom of England and therefore subject to the Laws which should be made here 2. This could not be as extensive to Ireland as 't was to England since it could not have extended beyond the English Pale there and such particular Districts as enjoy'd the English Laws of special Favour Therefore the Charter then sent by H. 3. could as to this Matter be no more than a Memorial of that Supreme Law according to which England with all the Dominions belonging to it was
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
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
in the same bottom as the King does in England I say almost on the same bâ—ttom for the Irish Parliament have not only a Negative as the King has in England to whaâ—ever Laws the King and his Priâ—y Councils of both or either Kingdom shall lay before them but have also a liberty of proposing to the King and his Privy Council here such Laws as the Parliament of Ireland think expedient to be pass'd which Laws being thus proposed to the King and put into form and transmitted to the Parliament here of Ireland according to Poyning's Act must be pass'd or rejected in the very words even to a little as they are laid before our Parliament we cannot alter the least Iota In this Narrative of their Constitution under that Law he has omitted the mentioning what is very material that the Kings answer to what they propoâ—e is to be transmitted under the great â—eal of England and this is to be the Licence and Authority for the holding a Parliament in Ireland and therefore their Acts of Parliament since that settlement mention their being held by Authority under the Great Seal of England And there were two obvious ends and effects of this Law as Mr. M. himself owns 1. The preventâ—on of any thing passing in the Parliament of Ireland surreptitiously to the prejudice of the King or the English Interest of Ireland to which I must add or of England 2. To take from the Irish there all colour of pretence of holding Parliaments as an independent Kingdom by virtue of any Authority within that Land But how the King's Prerogative in the Legislature was advanced by this I do not understand since long before as well as notwithstanding this supposed Constitntion of an Independent Parliament held by Authority from the Great Seal of England the King had and has the Prerogative not only to dissolve the Irish Parliaments at his Pleasure but never to call any which this Gentleman ought to fear least such a claim as he makes might occasion and I would gladly know what part of their Constitution provides for the frequent holding of Parliaments in Ireland yet frequency of Parliaments in England is an undoubted part of the Fundamental Constitution of the English Monarchy Farther is it any advance to the Prerogative in the Legislature that a Prince who has the full exercise of an absolute Legislature at home is only possessed of a Provision against having any attempt made to the lessening that his settled and indubitable Prerogative I must needs say this Gentleman has a way of arguing beyond my apprehension for I cannot see the consequence how the Prerogative should be advanced if as he will have it the Irish Parliament is put almost on the same bottom as that the King stands on in England if it be so I should think it a lessening of the Prerogative to have an Irish Parliament almost coordinate with him which Mr. M. is very fearful least an English Parliament should pretend to And I as little understand the reason he gives why the Parliament of Ireland stands almost upon the same bottom with the King for says he they have not only a Negative Vote as the King has in England but liberty to propose yet the Laws must be pass'd or rejected without alteration This I take to be Foreign to the bottom on which either the King or that Parliament stands If it be meant that they are in a manner as absolute in this negative and liberty of purposing as the King is in England since it relates only to Law first desired from Ireland either by the Privy Council or Parliament there this Constitution of their Parliament is so far from giving them a negative to the Laws pass'd in England with declared intention to bind them in Ireland that the Authority of England is wove into the very Constitution and the Parliaments of Ireland own that Authority by their very Sitting and Enacting Mâ— M. having represented that Constiâ—ution of their Parliaments by which he thinks they stand almost upon the same bottom as the King did here makes this strong assumption If therefore the Legislature of Ireland stand on this foot in relation to the King and to the Parliament of Ireland and the Parliament of England do remove it from this bottom and assume it to themselves where the King's Prerogative is much narrower and as it were reversed for there the King has only a negative Vote I humbly conceive 't is an encroachment on the King's Prerogative But he might consider 1. That as here by the Parliament he takes Lords and Commons without the King he mistakes the Fact in relation to their exercice of Power for they do not assume to themselves the Power of making any Law but with and under the King 2. Neither do they in the highest exercice of their Power take from the Irish any thing allowed or directed by Poyning's Law or any other Constitution 3. They do but assert the Chief Prerogative of the Crown of England by which due consent being bad our Kings give Laws to this Realm and all the Dominions belonging to it 4. The ancient course of the Proceedings of the Parliaments of England and their making all manner of Provisions for the Government of Ireland evince that Poyning's Law was rather an Indulgence to the English there directing a Method for their maintaining the face of a Legislature among themselves than any restraint of Power before vested in the Parliaments of England And after all this Law was never as I take it confirm'd by a Parliament of England I must not here omit the consequences which Mr. M. draws from the Parliament of England's pretending Power to impose any one Law upon Ireland 1. That 't will naturally introduce the Taxing them without their consent 2. That 't will leave the People of Ireland in the greatest confusion imaginable that they are not permitted to know which is the Supreme Authority which they are bound to obey whether the Parliament of England or that of Ireland or both and that the uncertainty is or may be made a pretence for disobedience 3. That 't will be highly inconvenient for England may make the Lords and People of Ireland think they are not well used and may drive them into Discontent 1. Not here to consider how far the Lordship of the Land of Ireland may infer the Taxing it if it should refuse to concur as it ought to its own Preservation since the Law of necessity is no farther to be used or considered than while the necessity is apparent I may say that this is no consequence to be apprehended and that as the Right of Taxing does not follow from the Right of Governing and the Nature of the Government depends upon the first Submission and that Interpretation and Confirmation of it which both the governing Nation and the governed have put upon it I must infer with deference to the National Authority that the
of his stile of Lord of Ireland in imposing Laws and a King upon ' em And I would gladly know what Irish Laws and Customs he swore to maintain Tho therefore I am as avers to the common Notions of Conquest as this Gentleman especially to the supposition that God in giving one Prince a Conquest over another THEREBY puts one in possession of the others Dominions and makes the other's Subjects become his Subjects or his Slaves as they come in upon conditions or at the will of the Conqueror Yet I must desire Mr. M. to explain those Acts of Parliament made in Ireland which not only seem to import that the Crown and Kingdom of England had made an absolute acquisition of the Land of Ireland but use that scurvy word Conquest An Act 28 H. 8. recites That the King's Land of Ireland heretofore being inhabired and in dâ—e obedience unto the King 's most noble Progenitors Kings of England who in the right of the Crown of England had great Possessions Rents and Profits within the same Land had grown into great ruin and desolation for that great Dominions Lands and Possessions had by the King's Grants course of Descents and otherwise come to Noblemen of England by whose negligence the wild Irish got into possession the Conquest and winning whereof in the beginning not only cost the King 's noble Progenitors but also those to whom the Lands belong'd charges inestimable and tho the King's English Subjects had valiantly opposed the Irish yet upon their absenting themselves again out of Ireland the Natives from time to time usurped and encroached upon the King's Dominions and particularly that the Earl of Kildare with his accomplices endeavour'd to take the Land of Ireland out of the King's possession and his Heirs thereof for ever to disherit For these and divers other hurts and enormities like to ensue to the Commonweal of the Island in respect of the inestimable Charges which the King had sustained and apparently had occasion to sustain for and about the conquest and recontinuance of the same out of his Enemies possession tho the King had right to all the Lands and Possessions there referr'd to and tho he might justly insist upon the Arrears of two parts of the Land of those who had absented themselves which might amount to more than the purchase of 'em it vests in the King and his Heirs as in the Right of the Crown of England only the Lands of some particular persons The Stature of the Queen attainting Shane Oneile speaks of populous rich and well-govern'd Regions wealthy Subjects beautiful Cities and Towns of which the Imperial Crown of England had before that time been conveniently furnished within the Realm of Ireland which after being lost had been recontinued to the Queen 's quiet possession But the Rebel Shane Oneile refusing the name of a Subject and taking upon him as it were the Office of a Prince had enterprized great Stirs Insurrections and horrible Treasons against her Majesty her Crown and Dignity imagining to deprive her Highness her Heirs and Successors from the real and actual possession of her Kingdom of Ireland her true just and ancient Inheritance to her by sundry Descents and authentick strong Titles rightfully and lawfully devolved And having mention'd a Title from Gurmond the Son of Belin King of Great Britain says Another Title is as the Clerk Giraldus Cambrensis writeth at large of the History of the Conquest of Ireland by King H. 2. your famous Progenitor The Title to the Land then recognized was abundantly strengthned and confirmed by Irish Parliaments in the time of J. 1. and since In the Act of Recognition to J. 1. they tell him of his having quench'd the most dangerous and universal Rebellion that ever was rais'd in that Kingdom in the suppressing whereof the unreform'd parts of the Land which being rul'd by Irish Lords and Customs had never before receiv'd the Laws and civil Government of England were so broken and reduced to Obedience that all the Inhabitants thereof did gladly submit themselves to his Highness's ordinary Laws and Magistrates which gave unto his Majesty a more entire absolute and actual possession than ever any of his Progenitors had All Ireland being thus brought into subjection to the Crown and Laws of England K. James taking notice of Laws which had been made after the Conquest of that Realm by his Progenitors Kings of England to keep up the distinction between the English and the Natives of the Irish Blood that he had then taken 'em all into his protection and that they lived under one Law as dutiful Subjects of their Sovereign Lord and Monarch repeals those dividing Laws After this the Irish Parliament granted C. 1. four Subsidies rightly considering the vast and almost infinite expence of Men Mony Victuals and Arms sent out of England thither by the King and his Royal Progenitors for reducing that Kingdom into the happy condition wherein it then stood And sutably to the import of the word Conquest Acts of Parliament of that Kingdom in the Reign of that King shew that the Titles to Lands of the English Plantation or which they from time to time gain'd from the Irish were enjoy'd by Grants from the Crown and for securing the Estates to Vndertakers Servitors Natives and others all the Lands in several Counties commonly call'd Plantation Lands were vested in the King his Heirs and Successors in right of the Imperial Crown of England and Ireland The Stat. 14 15 C. 2. holds the Irish Rebels to be subdued and conquer'd Enemies and therefore vests all their Lands in the Crown of England in order to make satisfaction to the Protestant Adventurers for the reducing that Kingdom to its due obedience and to enable the Crown to extend Grace to such as should be held deserving of it Reprisals being first made to the Protestant Proprietors Tho therefore I am far from admiring the Lord Coke's reasoning in Calvin's Case I may here subjoin part of Mr. M's reflection upon him and refer him to the Irish Acts of Parliament to qualify his Censure of the Ld Coke's restriction of the Opinion in the Year-book 2 R. 2. that the Irish are not bound by Statutes made in England because they have no Knights of Parliament here which says the Lord Coke is to be understood unless they be specially named To this assertion Mr. Molineux admits he gives colour of reason by saying That tho Ireland be a distinct Dominion from England yet the Title thereof being by Conquest the same by Judgment of Law might by express words be bound by the Parliaments of England To confound the Lord Coke I would fain know says this Gentleman what the Lord Coke means by Judgment of Law Whether he means the Law of Nature and Reason or of Nations or the Civil Laws of our Common-wealths For answer to which I need at present only
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
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
Power which England has from the time of H. 2. claimed and exercised over Ireland does not naturally introduce the Taxing them without their con-Consent yet if the Modern Precedents of English Acts of Parliament alledg'd against Mr. M's Notion are Innovations and only of Thirty seven Years standing depriving them of the Rights and Liberties which they enjoyed for five hundred Years before and which were invaded without their consent such an Invasion would naturally introduce the Taxing them without their Consent But since England uses no Power which it has not generally used for these 500 Years he should avoid putting it to the necessity or temptation to go farther 2. As to the supposed uncertainty where the Supream Authority resides he might have found that pass'd dispute in their own Statutes and yet their Denyals could be of no weight till they had absolutely renounced the Protection of England and indeed must be thought to have come in surreptitiously without the due care of the Governours there under the Crown of England as well as without the notice of the Nation which has hitherto protected and supported them However the Obedience which that Nation has from H. 2d's Time pay d to the Laws of England after they had been duly pubiished by Authority under the Great Seal of England might have sufficiently taught them where the real Legislature is vested and by them and their Forefathers acknowledged And since he admits that till a Regular Legislature was established in Ireland by the Irish voluntary Submission to and acceptance of the Laws and Government of England we must repute them to have subâ—itted themselves to the Statute Laws made under H. 2. King John and H. 3. and their Predocessors If a Kingdom can have no Supreme within it self and a Subordinate Parliament is no Parliament as he would infer he must thank himself for the Consequence that therefore they have neither a Kingdom nor a Parliament and then by his own confession they are as much to be govern'd by the Statutes now made in England as their Predecessors were in the Times of King John and H. 3. 3. As to the imagined Inconvenience to England and almost threatned Defection from the Crown of the Kingdom this Gentleman's Undertaking makes it evident that the Authority ought the rather to be exerted to help some Men's Understandings least such a shew of Arguments and popular Flourishes should encourage them to act as if they were a compleat Kingdom within themselves with a King at the Head of them during whose Absence or professing a Religion contrary to that which the generality of the People profess they might assert the Right of a Free Kingd subject to no Man's Laws but what they had consented to immediately or permitted to grow into a Custom Since this Gentleman thinks he has silenced all the Patriots of Liberty and Property by his warm Appeals to them and wheadling Notions of the inherent and unalienable Rights of Mankind and howevre that he has engag'd the Crown of his side by adorning it with a Prerogative to govern Ireland without any relation to the puâ—lick good of that Kingdom the rightful Possession of which caâ—â—ies Ireland as an Appendant to the Imperial Crown I must desire him to consider whether in this as well as other Particulars before observed the Charge of Inconsistency will not fall upon him more justly than upon the Lord Coke A little to qualifie this heat upon the suppos'd Injury to Prerogative or common Right I shall recommend these Heads to his serious Consideration 1. Whether he does not yield that if there were a Submission and Consent to such Laws for Government as England should from time to time publish to be obeyed in Ireland this would be no injury to the Common Rights of Mankind 2. Whether his Tragical Exclamations against those who have acted contrary to what he takes to be the Right of the English Proprietors in Ireland are not founded upon the Supposition that those Acts of Parliaments there which have been made of late Days with express intention of binding Ireland are Innovations 3. Whether it being evident that the Laws made here have for so many Ages been enforced and submitted to as binding Ireland an English-man in Ireland has more reason to complain of a Law made here than a Wealthy Merchant Free of no Corporation or any English-man whoâ—e Profit obliges him to a continuance in Foreign Parts 4. Whether all the English Treasure which has been spent and Lives lost for the Reduction of Ireland were absolutely at the Disposal of the Princes or directed by any of their Parliaments 5. Whether a Law Book digested in the Time of H. 2. as 't is suppos'd by Publick Authority does not shew that in the Notion of that very Time when Mr. M. supposes that the Right of the Crown of England over Ireland was first acquired there was or might be Treason against the Kingdom of England as well as against the King 6. Whether the submitting to take the English Laws from the King implyed the taking them from him alone unless he made Laws in England without the Consent of the States of the Kingdom of England 7. Whether if the English modus tenendi Parliamenta being as Mr. M. thinks he has proved transmitted to Ireland by H. 2. stiling himself Conqueror of Ireland after that a Parliament of Ireland held in that form should have Voted themselves independant upon the Parliament of England would not every Member have been liable to an Impeachment for Treason against the King and Kingdom of England 8. If by Municipal Laws or the Provision of the Common Law of England in Cases not particularly express'd the Son may justly suffer in the Consequence of his Father's Forfeiture for Treason may not the same Reason hold for a dependent Nation 9. Whether Jurists universally agreed to be well skill'd in the Law of Nations and even such as hold the People or Community to be the common Subject of Power do not maintain that as well the Dominion or Power vested in the People as that which was in the Prince may be acquired by another Prince or State 10. Whether they do not hold that such acquisition made in one Age and continued lays an obligation upon Posterity to submit to it 11. Whether they do not generally hold that Protection is a good foundation of Power and that this confirms the Submissions of Publick Societies anciently made to the Nature of that Government which they had subjected themselves to and to the governing Families 12. Whether the Protection which the stronger Kingdom has continued to give to a weaker is not at least as forceable an Argument for Obedience as that protection which any Nation does or can receive from the Prince who is at the Head of it 13. Whether our Saviour's Observation upon the Roman penny and St. Paul's Epîstle to the Romans did not establish a general Rule of
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