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
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
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
imply that there is no Subordination 't will follow that the Inferior Courts in England are not subordinate to the Courts of Westminster-Hall and I may add neither is the King's Bench of England subordinate to the House of Lords As to the question of their Jurisdiction occasioned as Mr. M's Margin has it by the Case of the Bishop of Derry I need say little here referring him to the Judgment of the Lords and to that exercice of the Judicial Power which I shall have an opportunity of shewing in the Reign of E. 1. But as to his supposed clear Argument against the subordination from the Lords doing nothing upon the Petition of the Prior of Lanthony who appeal'd to the Parliament of England from a refusal of the King's Bench here to meddle with a Judgment which had pass'd in the Parliament of Ireland 'T will admit of several Answers 1. This came not before the Lords by Writ of Error or by Appeal from the Lords of Ireland but was a complaint of the King's Bench here 2. This was after the Charter which I shall afterwards shew placing a judicial Power to some Purposes in their Parliaments But whether they exceeded that Authority 't was not for the King's Bench to judg but for that Power from whence their Charter was derived 3. This Petition seems either to have come too late or to have been waved for if it had fallen under consideration 't is probable that some Answer to it could have been endors'd as was usual in former times But that the ordinary Jurisdiction both of the Lords in Parliament and of the King's-Bench here is but an incident to the Superiority of the Crown of England will be much clearer than any thing Mr. M. has urged And whatever Mr. M. conceives the Annexation of Ireland to the Crown of England will sufficiently manifest the Subordination tho he supposing that this was done by the Irish Statute which annexes it as a Kingdom with others which declare it annex'd as a Land or Dominion of a lower Character conceives little more is effected by these Statutes than that Ireland shall not be aliened or separated from the King of England who cannot hereby dispose of it otherwise than in legal Succession along with England and that whoever is King of England is ipso facto King of Ireland But if these Statutes bating the name of Kingdom which the Parliament of England afterwards gave them are only declaratory of the antient Right of the Crown of England then I may well hold that there is not so much effected by these Statutes as he yields it being only the operation of Law And if by operation of Law a King of England tho not succeeding by a strict Right of Descent but by the Choice or Declaration of the States of this Realm is ipso facto King or Lord of Ireland I would gladly know how that Kingdom or Land which he owns to be thus inseparably annex'd to the Imperial Crown of England can be a compleat Kingdom And since he is pleas'd to ask whether multitudes of Acts of Parliament both of England and Ireland have not declared Ireland a compleat Kingdom and whether 't is not stiled in them all the Kingdom or Realm of Ireland I would entreat the favour of him to shew me one Act of Parliament of either Kingdom which says or all Circumstances consider'd implies that Ireland is a compleat Kingdom or that ever any Parliament of their own held it to be advanced to the Dignity of a Kingdom before 33 H. 8. tho as they acknowledg the Kings of England had Kingly Power there long before I must own that as the name of King was in H. 8's time thought requisite to charm the wild Irish into Obedience so in Queen Elizabeth's time Imperial Crown was thought to make a conquering Sound but this was never ascribed to it by any Parliament of Englandâ— nor that I can find even of Ireland before her Reign or since But the one Imperial Crown upon which Ireland has been and still is dependent is the Crown of England sor this the Statute of Ireland before that was made a Kingdom is express having these words Calling to our remembrance the great Divisions which in time past have been by reason of several Titles pretended to the Imperial Crown of the Realm of England whereunto this your Land of Ireland is appending and belonging So another in the same Year Forasmuch as this Land of Ireland is depending and belonging justly and rightfully to the Imperial Crown of England it enacts that the King his Heirs and Successors Kings of the Realm of England and Lords of this said Land of Ireland shall have and enjoy annexed and united to the Imperial Crown of England all Honours Dignities Pre-eminencies and Authorities c. belonging to the Church of Ireland If Mr. Molineux observes duly Ireland has all these Imperial Rights declared in the Irish Statute 33 H. 8. c 1. but I cannot find by what Rule he insers this from an Act of Parliament which is express that the King of England shall have the Name Stile Title and Honour of King of Ireland with all manner of Preheminencies c. as united and knit to the Imperial Crown of the Realm of England Indeed it shews that under the name of Lord the King had the same Authority but the name of King was thought likely to be more prevalent with the Irish Men and Inhabitants within that Realm The Statute 11 Jac. 1. declares him King of England Scotland France and Ireland by God's Goodness and Right of Descent under one Imperial Crown And the Statute 10 C. 1. calls this the Imperial Crown of England and Ireland And indeed Mr. Molineux would do well to shew that ever any of our Kings took any Coronation Oath for Ireland otherwise than as Kings of England And yet I know not what he may do when his hand 's in since he has the Art to transubstantiate their Recital of an Act of Parliament in England which declares that Popes had usurped an Authority in derogation of the Right of the Imperial Crown of the Realm of England recognizing no Superiour under God but only the King and being free from Subjection to any Man's Laws but only such as have been devised made and ordain'd within the Realm of England or to such other as by sufferance of the King and his Progenitors the People of the Realm of England had taken at their free Liberty by their own Consent to be used among them and have bound themselves by long Custom to the observance of the same To infer that 't is thus with Ireland because the enacting part of that Statute which has this Recital is promulged for a Law in Ireland is to suppose Ireland to be turned into England and that the Commissioners who are by virtue of that Act and the Great Seal to exercise that
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
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
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
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
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
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
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
of England was as much to be obeyed as their own Record shews that 't was 29. E. 1. The Authorities above cited having manifested the several Titles which the Crown and Kingdom of England have to the Land of Ireland and that from the 18 th of H. 2. at the latest downwards as far as Mr. M. makes any controversie neither the Irish Nation nor the English there have been govern'd without the interposition of the Parliament of England and that the Parliament of Ireland had all its Laws made here or derived under Authority from hence and that not from the King 's alone or the Kings and their Priâ—y Counsels but their Parliament that the Parliaments of Ireland have had no Provision for their being holden within any certain time nor ever had Authority given them to act as independent on the Parliament of England I may well conclude that the right of the Parliament of England to bind Ireland by Laws made here without any Members chosen for Ireland is so far from being departed from that 't is strengthened and confirmed by the continual usage of the Parliaments of England and submission of the Parliaments and People of Ireland to which 't will be needless to add the consideration of the inestimable Treasure spent in several Ages for maintaining the English Interest there and the late freeing it from an Universal Insurrection and Usurpation 4. Having us'd the proper means to convince Mr. M. by the true argumentum ad hominem shewing that the chief Weapons which he uses turn strongly against himself I need the less apprehend the natural force of his reasoning upon dry Notions The right says he which England may pretend to for binding us by their Acts of Parliament can be founded only on the imaginary Title of Conquest or Purchase or on Precedents and Matters of Record Wherein he admits that Precedents and Matters of Record may give a Right which is neither by Conquest nor Purchase and of this the Authors he refers to might satisfie him at large I 'll agree with him that on consent depends the obligation of all humane Laws insomuch that without it by the unanimous Opinions of all Jurists no sanctions are of any force But do any of them say that the consent is necessary to be exprest and that immediate if it were the Sons could not be bound by those Laws which their Fathers chose in restriction of natural liberty and he might have observ'd by his own Authors and even in the Words cited by himself that approbation not only Men give who personally declare their assent by Voice Sign or act but also when others do it in their names by right originally at least derived from them as in Parliaments Councils c. To be commanded we do consent when that Society whereof we are part hath at any time before consented Farther yet whatever Freedoms the Progeny of the English and Britains now in Ireland claim with the natural Born Subjects of England as being descended from them 't is certain every Man here does not as an English-man claim to be a Member of Parliament or to have a Voice in chusing one But there are many without this Privilege who have been concluded by the consent of their Forefathers and their own agreeing to stay within a Kingdom govern'd by such Laws to which they owe Obedience and Submission at least as long as they will receive the benefit of them and the protection which they assure This is the case of those Englishmen who chuse to live in Ireland under the Protection of England without which the Protestants there could not have subsisted in any Age since the Reformation and if the Irish Natives are not conquer'd or the Right of Conquest over them ought not to be carryed beyond the reparation of the Damages sustained from them or if a just conquest gets no power but only over those who have actually assisted in that unjust force and if the right of conquest extends little fâ—rther than over the Lives of the Conquer'd but their posterity can lose no benefit thereby If an outragious and Brutal Enemy may not be restrain'd from doing farther mischief by the taking from him that Power and Estate which would enable him to carry on his Designs if the posterity may not suffer in the consequence of this as the aggressor's property is become the Conqueror's if the Children may not be restrain'd from revenging their Father's Quarrel let the English in Ireland look to it how to juâ—â—ifie those Possessions which they enjoy by the help of the Crown and Kingdom of England and if their Consciences are squeamish let them renounce their Right to the Lands of the Natives but let them not bring in to question the Right of Engl. to all Foreign Plantations and let them never fear that equal Power here to which a great part of the English Nation are resigned without any other kind of consent than the People of Ireland have given to the Laws made in England with intention to bind them and be published there As to his notion of Purchase whenever Ireland will repay the value of the Purchase that inestimable and infinite expence of Men Money Victuals and Arms which their own Parliaments own to have protected and supported them for several Ages there 's no great question but England would be willing to leave 'em to their own ways Whereas he will suppose that the Authority which the Lords and Commons of England have exercised from Age to Age in relation to Ireland would imply that the Parliament of England have claim'd a coordinate Power with the King what is this but to argue that in relation to England the Parliament is coordinate however as by Parliament he means only the States of the Kingdom 't is evident this insinuation proceeds from his not observing the Gothick constitution for which he would be thought very zealous but might have known that the States of the Kingdom or the ordines regni are those who are entituled to meet the King in Person or by representation in his Parliaments where the King is a distinct Body Politick by himself and having the Supremacy is manifestly above the ordines regni But tho' the Head which Mr. M. raises about the suppos'd injury to Prerogative be only upon a pretended coordinate Power with the King he carries it farther and will have it that for the States of this Realm to use an Authority tho' subordinate to the King to introduce new Laws or repeal old establish'd in Ireland is a violation of the Constâ—tution of Ireland under Boyning's Act and of the Prerogative of the Crown of England which he supposes to have been highly advanced by that Statute speaking of the effect of which he says The King's Prerogative is advanced to a much higher pitch than ever was challeng'd by the King 's in England and the Parliament of Ireland stands almost