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
so far back to shew how it first became a Kingdom I think I have made it evident that he has fail'd in his first Undertaking 2. 'T will be as evident that he is no less injurious to the Right of the English Nation than unhappy in the comparison where he maintains that England may be said much more properly to be conquer'd by W. 1. than Ireland by H. 2. tho in this he has the Authority of Sir John Davis I will agree that the word Conquest was in the times both of W. 1. and H. 2. of a very innocent signification for which he rightly cites Sir Henry Spelman and might have observed a much greater and antienter Authority in a Record of the time of King John referr'd to by Mr. Petyt wherein a younger Brother in a Suit between him and his elder Brother about Title to Land pleads that his Father had it de Conquestu suo and gave it him according to the distinction in Glanvil who wrote in the time of H. 2. between Questus the same with Conquestus and Haereditas 'T is certain the word Conquestus did not in that age imply any thing of that Power which a Prince or State might acquire by Force or Terror of Arms over another Prince or State and therefore I shall make no use of his Admission that H. 2. took Conquestor Hiberniae into his stile contrary to the Authority of Mr. Selden cited in his Margin and to which I cannot but subscribe In truth tho H. 2. was stiled Lord of Ireland I am very well assured none can be found where he is stiled Conquestor Yet Girald an Author of that time calls him Triumphator Hiberniae which is tantamount to Conqueror But since Conquestor when first used signified no more than one who came to a Right which he claimed not by hereditary Descent according to which W. 1. acknowledged that he was made or created King of the English by hereditary Right that is as has elsewhere been shewn and may be more at large was duly let in to the Inheritance of the Crown however the word Conquestor has been in following ages applied both to W. 1. and to H. 2. Let 's consider a little 1. Whether the English Nation ever submitted to W. 1. as a Conqueror in a sense of larger signification than 't was antiently used 2. Whether the Irish Nation submitted to H. 2. or to any other of our Kings more absolutely than the English did to W. 1. 1. Mr. Molineux agrees that E. 3. was the first that us'd the Aera of post Conquestum which indeed was no more than to distinguish the Edwards after the time of W. 1. from the three Edwards which reign'd in England before that time but no body that I know of has yet pretended that W. 1. ever assumed the stile of Conqueror and I dare say no one Author of that time printed or in Manuscript ascribes it to him I must own in some of his Charters he says he gain'd the Kingdom by the Sword having subdued Harold and his Accomplices but besides that Puffendorf's Assertion is undeniable that after a Prince is overcome in a just War till the Subjects consent the State of War continues and there is no Obligation nor Faith and so no Dominion W. 1. did not come to civilize and subdue the People to Laws but to turn out 1 st An Usurper upon the Right of the People upon whom he had imposed himself without any true Election notwithstanding what several antient Authors have affirmed And 2 dly An Usurper upon the Right which W. 1. had by a full and a formal Election he having been elected Successor in the life time of the Confessor which I may hereafter shew with all the Circumstances but shall at present refer only to three Authorities out of many William of Poictiers an Author who lived in the very time informs us that the Confessor sent an Embassy into Normandy suorum assensu by the assent of his People to assure him of the Succession And Ordericus Vitalis has these words Edwardus nimirum propinquo suo W. D. N. primo per Rodbertum Cant. summum Pontisicem postea per eundem Heraldum integram Anglici regni mandaverat concessionem ipsumque concedentibus Anglis fecerat totius juris sui haeredem Edward sent an Embassy to William Duke of Normandy first by Robert Archbishop of Canterbury afterwards by Harold himself acquainting him with the entire Grant of the Kingdom of England and had made him Heir of all his Right with the Consent of the English Which shews in what sense Ingulph who was Secretary to W. 1. is to be understood when he says Eum sibi succedere in regnum voce stabili sancivit That the Confessor with a stable Voice ordained or appointed him to succeed him in his Kingdom 'T is not to be questioned but Ingulph who was an Anglo-saxon and well knew that a King could not dispose of the English Crown without the consent of the States of the Realm would be understood by this that the Confessor's voice or nomination had a Parliamentary Sanction when one of the Norman writers looks upon Harold as a mad-man for not staying to see what a publick Election should determine That W. 1. came only to turn out an Usurper is not all but having done this with a great force the People of England would not receive him for King upon his Victory till they had treated and agreed with him in a Convention at Berkhamstead where as Authors concur foedus pepigit he struck a League with them and was not only obliged to maintain the English Laws in virtue of a mutual Contract but part of the Contract with the Prelats and the Nobility of the Kingdom was That he should be crown'd as the manner of the English Government requires From those Authors who give the heads of his Oath administred by Aldred Archbishop of York 't is plain that he was crown'd according to the standing Ritual in use from the Coronation of King Ethelred and continued to the Reign of H. 1. without any material alteration And Authors as well as the Ritual shew that the people were solemnly ask'd whether they would have him to reign over them to which they exprest their consent in such terms as implied a Grant But the Coronation Oath being only in general terms that King was obliged once at least if not oftner to swear expresly that they should enjoy the Benefit of the Confessor's Laws that Digest of so much of the common Law of England as was in his time thought necessary to be reduced to writing to which some additions were made by that King in Parliament for the benefit of the English That there was nothing like this in the submission of the people of Ireland to H. 2. has appeard above and that he acted according to the import
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
the Statutes of Gloster which do not Name Ireland and the Statutes of West â— which do were both delivered to the Clerk of the Justice of Ireland in order to their being published and observed there And 't is evident that Ireland's being bound by Parliaments in England without any consent expressed in Ireland was not merely the Judgment of the times above referred to but the setled Judgment of that King and His Council in His Parliaments Thus in the 8 th of that King there 's a Writ taking notice that the Irish had desired to be governed by the Laws of England upon which the King requires all the English of the Land of Ireland to Certifie whether this might be granted without pre judice to them declaring that the King would make such Provision as should seem expedient to Himself and His Council which plainly enough referred to His Council in Parliament If upon their Certificate a general Law had passed to grant the Irish their Request the mentioning the consent of the English there could not be thought to derogate from the Legislature here the Authority of which was intimated in that very reference and was fully asserted in that Kings Reign by an Act of Parliament made here after that time and the Proceedings thereupon both in England and Ireland By the Case of mixt Monies in Ireland we are informed that 29 E. 1. when by the King 's sepecial Ordinance the Pollards and Crochards were cry'd down and made of no Value the same Ordinance was transmitted into Ireland and Enrolled in the Exchequer there as is found in the Red Book of the Exchequer there And agreeably to this it appears by the Statute Roll here that this Ordinance which in truth was an Act of Parliament or else an other of the same kind was sent to John Wogan then Chief Justice of Ireland or to his Lieutenant This is only a short Entry referring to the known usage But the very next Record of a transmission to Ireland of a Statute made here which was that about Juries is more express Mem. quod istud Statutum de verbo ad verbum missum suit in Hib. T. R. aput Kenynt 14. die Aug. Rni sui 27. Et mandatum fuit J. Wogan Justic Hib. quod praed Stat. per totam Hib. in locis quibus expedire videret legi publicè proclamari firmiter teneri faciat Mem. That that Statute word for word was sent into Ireland Teste the King at Kenynton 14. Aug. in the 27th of his Reign Command was gito John Wogan Chief Justice of Ireland to cause it to be read in those places in which he shall think it expedient and to be publickly Proclaimed and Observed This Statute does not name Ireland nor has general words which seem to include it But it seems some years after to have been Enacted that this Statute should be transcribed and sent to Ireland for a Law given them by Parliamentary Authority In the 35 th of E. 1. Will. De Testa was Impeach'd in Parliament for grievous Oppressions and Extortions upon the People by Colour of Authority from the See of Rome This upon the Petition of the Earls Barons and other Great Men and the Commonality of the whole Realm of England occasioned general Law and Provision for the State of the King's Crown and also of His Lands of Scotland Wales and Ireland The Remedy was Enacted by the Assent of the King and the whole Council of Parliament and 't was Enacted that for the future such things should not be permitted within the Realm That Ireland was then included as part of the Realm appears not only by the intention before declared but agreeably thereunto The Statute then made is by Authority of Parliament sent to the Justice of Ireland as well as to the Chief Governors of other the King's Dominions enjoyning them to enquire and proceed against those who had offended in that kind and to cause the Provision Agreement and Judgment of that Parliament to be Firmly and Inviolably observed in those Lands Mr. M. having as he thinks answer'd an Objection from the Ordinance for the State of Ireland Printed in our Statute-Books not only that of 1670. but even in others much more Ancient as made 17 E. 1. I shall shew him some new Matter which may deserve his farther Consideration and yet tho' he thinks he has prov'd 1. That this Ordinance was never receiv'd in Ireland 2. That 't was meerly an Ordinance of the King and His Privy Council in England it might be enough to observe That the Clause which he Instances in forbidding the King's Officers to purchase Lands there upon pain of Forfeiture has an Exception for the King's Licence and tho' he has not been at the pains to examine whether there were any such Licences from England I can shew him in the very next Year a confirmation under the Great Seal of England of a grant of Land 's there before made from hence which were sufficient security against the forfeiture 2. If 't were admitted that the Ordinance were made by the King and his Privy Counsel 't would be very difficult for him to prevail upon many to believe that a Land or Kingdom which in all the principal Parts of Government was under the controul of the Great Seal of another Kingdom was as he pretends a complete Kingdom within it self or a Kingdom regulated within it self the contrary of which appears in numerous instances of the time of which we are at present enquiring as of leave from hence to chuse Ecclesiastical Governors Pardons Directions for the Proceedings of the Courts of Justice and Council in Ireland the appointing distinct Courts of Judicature Grants of Lands Offices Liveries out of the King's Hands of Lands held in Chief of the Crown of England Licences of alienation and the like Further than all this there 's a Precedent of taxing Communities by Authority from hence It must be agreed that 't was frequent for Kings to grant to Cities and Towns in England power to raise Customs or Duties for Murage the building or repairing their Walls to be levyed upon Goods and Merchandizes brought thither in these Grants there was no mention by what advice or consent they issued but 't is to be presumed that the Great Seal was not rashly affixed nor were they extended farther than to the Walls which secured the Persons and Goods of those who paid the Duty yet the Great Seal of England has been applyed much more absolutely to the binding the property of the Subjects in Ireland as may appear by this Record R. Ballivis probis hominibus sâ—is Dublin Salutem Cum in subsidium villae claudendae vobis nuper per literas postras Pat. concesserimusquod quasdan consuetudines usque ad certum tempâ—s de singulis rebus venalibus ad eandem villam
venientibus capietis ac dilectus Fidelis noster Nic. de Clere Thes nost Hibern testificatus fuerit coram nobis quod vos ad mandatum ejusd Nic. magnam partem pecuniae provende consuetud antedict in clausuram scaccar nostri Dublin posuistis nos ea de causa c. The King to the Bayliffs and honest Men of Dublin Greeting since in aid of walling your Town we lately by our Letters Patents granted that you should take some Customs to a certain day of every thing to be sold coming to that Town And our beloved and faithful Subject Nic. de Clere Treasurer of Ireland has certified us that you at the command of the said Nicholas have employed great part of the Money arising by those Customs to the enclosing or repairing the Exchequer at Dublin Therefore c. The King by his Great Seal of England continues the Tax for Three Years longer than his first Grant and allows of the applying part of it to an end very different from that of the Walling the Town For a yet farther Evidence of the more absolute Dominion which E. 1. exercis'd over Ireland than he pretended to in England I shall shew that he took to himself Authority to set aside what is supposed to have been setled by an Ordinance in the seventeenth of his Reign One of the said Ordinances provides That neither the Justice of Ireland nor any other of the King's Officers by colour of their Office take Victuals from any Person without his Consent unless in case of necessity and that by the assent of the chief of the King's Council of those Parts and by Writ out of the Chancery of Ireland And yet in the next Year after this Ordinance is supposed to have been made the King as a particular Indulgence to the Citizens of Roscommon grants that the Constable of Roscommon or other the King's Officers shall take no Victuals or other things of them without their Consent unless there be a necessity for it in time of War And this exemption is only by a Patent during Pleasure But in truth this was no violation of the Ordinance for the State of Ireland For besides that I shall shew when 't was made and how in another Reign 'T is certain it could not be in a Council at Nottingham in the Octaves of St. Martin not only as may appear to any one who will trace the Close and Patent-Rolls and the Use of the Great Seal which went along with the King from his Landing at Dover on the 12th of August to the 16th of November during which time the Seals were far from Nottingham but chiefly because there was a Parliament at Westminster appointed to be held on the Crastino Martini which 't is to be presumed met accordingly tho Mr. M. is positive that E. 1. held no Parliament in the 17 th of his Reign But for his Conviction in this particular during d the K's Absence in Foreign Parts Edmund Earl of Cornwall being Custos Dated the Writs among which there was one referring a Matter to the Judgment of the King and his Council in the next Parliament to be after Easter And to satisfie Mr. M. that there was no need of a Council at Nottinghâ—m nor could there be one the Octaves of St. Martin it happens that on the 14th of that October a Writ issued to the Sheriff of Nottingham acquainting him of a Commission to certain Persons to heaâ— the Miscarriages of the King's Officers in that Country and to give me an account thereof at the next Parliament and therefore commands the Sheriff to Summon all Parties aggrieved to be at Westminster that year in the Morrow of Sanct Martin I must own that I have not found any Record of a Writ of Summons for any of the Members to come to Parliament that Year â—or has Sir William Dugdale found any to the Lords tâ—â—l the 22d and yet 't will be agreed that there were Parliaments between the 49th of H. 3 and the 22d of E. 1. and 't is certain the Statute of Westm 1. 3 E. 1. is express that the Archbiâ—â—â—ps Bishops Abbots Priors 〈◊〉 Barons and all the Comâ—â—nalty of the Land were Summoned to that General Parliament and assenting to the Laws then made Mr. Prynn as I take it had not seen any Writ of Summons to the Commons till 26 E. 1. Yet I have found in the Close-Roll of 18 E. 1. as Dr. Brady and Mr. Petyâ— have in the Bundle of Writs this following Rex Vic. Northumb cum per Com. Bar. quosdam alios de proceribus regni nostri nuper fuissemus requisiti super quibusdam â—am cum ipsis quam cum aliis de comitatibus regni illius colloquium habere velimus tractatum Tibi pâ—aecipimus quod duos vel tres de discretioribus ad laborandum potentioriâ—us militibus de Com. praed eligi eos ad nos usque Wesâ—m venire facias fine dilatione Ita quòd sint ibid. à die Sancti ibidem a die Sancti Johannis Baptistae prox fatur in tres septimanas ad ultimum cum plenâ potesâ—ate pro se totâ Communitate comitat praed ad consulendum consentiendumpro se communitat illâ hiis quae Com. Bar. Proceres praed tum duxerint concordand T. R. apud West 14 die Junii The King to the Sheriff of Northumberland For asmuch as we were lattly in a special manner entreated by the Earls Barons and some others of the Peers or Nobility of our Realm that we would have a Colloquy and Treaty upon some Matters as well with them as with others of the Counties of the Realm We require you without delay to cause to be Elected and to come to us as far as Westminster two or three of the more discreet and more able to travail of the Knights of the said County So that they be there at the latest within three Weeks from the Day of St. John the Baptist next ensuing with full power for themselves and all the Commonalty of the said County to consult and consent to those things which the aforesaid Earls and Barons shall then think fit to be agreed Test the King at Wesâ—m the 14th day of June This Dr. Brady in his Answer to Mr. Petyt more truly than he is aware calls a Summons to a Parliament However in his Introduction he will have it that the Laws were then made by the King and his Peers before the Knights of the Shires came the Statute of that time saying that the Parliament was holden in the Quinzism of St. John and that the Laws were made at the Instance of the Great Men. But he might have observed 1. That the Provision then made is called a Statute 2. That the Council wherein it pass'd is called a Parliament 3. That the Matter enacted was a general Law and of general
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
quibusdam videlicet ad hostes caeteris ad loca extranea fugientibus Diversaeque partes dictar Marchiar taliter desolatae derelictae per hostes eosdem occupatae nostraque ejusdem terrae negotia incongruè inutiliter leges approbatae consuetudines minus debite observatae populo nro bonis rebus suis contra justitiam legem formam Statutor inde editor diversimode spoliat paxque nostra laesa minime custodita Ac proditores Latrones Malefactores non sicut convenit castigati Quorum malorum aliorumque occasione majora damna irreparabillia evenire quod absit timentur nisi praemissis opportunis reme diis occurrat Nos desiderantes utili regimini quieti eorund terrae populi providere quae sequuntur propterea deassensu consili nostri ordinanda duximus firmiter observanda In prim viz. volumus praecipimus quod sancta Hibernica ecclesia suas libertates liber consuetudines illaesas habeat eis liberè gaudeat utatur Item volumus praecipimus quod nostra ipsius terrae negotia ardua in consiliis per peritos consiliarios nostros ac praelatos magnates quosdam de discretioribus probatioribus hominibus de Partibus Vicinis ubi ipsa consilia teneri contigerit propter hoe evocandos In Parliamentis vero per ipsos Consiliarios nros ac Prelatos Proceres aliosque de terra nostra proutmos exigit secundum justitiam legem consuetudinē rationem tractentur deducantur fideliter timore favore odio aut pretio postpositis discutiantur etiam terminentur Because from the frequent Relations of Persons to be credited we understand that our Land of Ireland and the Irish Church and the Clergy and People subject to us thro' defect of good Government and by the negligence and carelesness of the King's Officers there both great and small has hitherto been manifoldly troubled and aggriev'd and the Marches of that land plac'd against the Enemies wasted the Marches being kill'd and despoil'd their Houses enormously burnt and the rest being forc'd to forsake their habitations some flying to the Enemies and others to Foreign Parts And divers parts of the said Marches so desolated and forsaken have been possess'd by those Enemies and the Affairs of us and that Land are incongruously and unprofitably and the Laws and approved Customs not duly observed our People being in divers manners spoil'd of their Goods and things contrary to Justice Law and the form of Statutes in those cases provided And our Peace is broken and not in the least kept And Traytors Robbers Malefactors not punish'd as they ought By occasion of which and other Evils greater irreparable Damages which God forbid are feared as likely to happen unless the Premises meet with opportune Remedies We desiring to provide for the convenient Government Quiet of that Land People therefore we by the consent of our Council have thought fit to provide these following Particulars to be ordain'd and observ'd In the first place that the Holy Irish Church have its Liberties free Customs unhurt and enjoy usethem freely Also we will and command That the Affairs and Arduous Matters of us and that Land in Councils by our Learned Counsellors and Prelates and great Men and some of the more Discreet Honest of the parts neighbouring upon the place where those Counsels shall happen to be held to be summoned for this purpose But in the Parliaments by those our Counsellours and Prelates Peers and others of our Land as custom requires be according to Justice Law Custom and Reason brought and faithfully Fear Favour Hatred or Price being disregarded discussed and also determined Then particular Provisions are made here notwithstanding the Allowance of Parliaments there Among which 1. That Men guilty of Broakage should be Punished by the Justice and Council of Ireland and fined and amoved from their Offices as should seem reasonable to the Justice and Counsel 2. That no Purveyance be taken contrary to the form of Statutes and Articles made and published for the profit of his People in Parliaments and other great Councils But if there be any force in Mr. M's way of Arguing the Statutes against Purveyors were not binding to Ireland till 18. H. 6. when 't is Enacted By a Statute made in Ireland that all the Statutes made in England against the Extortions and Oppressions of Purveyers are to be holden and kept in all points and put in Execution in this Land of Ireland 3. It provides against Robberies and for Hue-and-Crys according to the Statute of Winchester 4. That no Pardon be pass'd but in Parliaments or Councils by the assent and counsel of the said Parliaments and Counsellors And that there be no general Pardon but that the Offences be specified and expressed according to the tenor of a certain Statute by the King and his Council of England publish'd and sent to Ireland to be observed 5. The Charter taking Notice that false intelligence us'd to be sent from Ireland to England forbids it under grievous Forfeiture declaring that if for the future the Prelates the great Men Commonalty or any other should misinform the King and his Council they should be duly Punished 6. Whereas they us'd to Exhibit against one another several scandalous and vexatious Libels and Bills it provides that they being reduced to Writing be under the Seal of the Chancellor for the time being transmitted to the King's Justice Chancellor and Treasurer of Ireland who are thereby impowered to do Justice but this is by virtue of the great Seal of England 7. It Impowers the Justice calling to him the Chancellor and Treasurer with some Prelates and Earls whom he shall know to be fit or that they ought to be summoned to determine the Differences between the English of Irish Extractions and which were or should afterwards be of English 8. It requires the Justice and his Associates when there was any special Cause to certifie to the King his Council of England the Names of all Persons guilty and their Offences Since Mr. M. having as he fancied clearly made it out that for Ireland to be bound by Acts of Parliament of England is against several Charters of Liberties granted unto the Kingdom of Ireland thinks he had no need to add any other Authority than a piece of that Charter of the substance of which I have given an Account with all the distinguishing Expressions I might well enough close here and leave it to himself to consider whether when a Parliament is granted or allowed to the Land of Ireland in the fullest terms that ever it was in any King's Reign that can be shewn there was not at the same time a full exercice of the Power of the Crown and Kingdom of England in making Laws and requiring the Execution of others made in England without any
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
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
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
Cases Notwithstanding which 't was the opinion of the Parliament the next year that this saving was not sufficient and therefore the King at the grievous complaint of the Commons impowers the Chancellor of England to give Licences for Butter and Cheese at his discretion As to the question Whether Ireland was bound by the Stat. 2 H. 6. Mr. M. pretends to transcribe verbatim what relates to it in the Year-Book 2 R. 3. The matter as he observes was brought before all the Judges of England in the Exchequer Chamber but after ibi he omits the word dicebatur it was said not per curiam but at the most only by some Judg or Judges and might have been only by one of the Counsel for the Merchants Whoever then held that Ireland was not bound by that Act might have spoken it in relation to the Informer who could claim no share of any Forfeiture incur'd from Ireland unles the Counties of Ireland were taken to be Counties within the Realm of England But even as to this matter they were soon convinced of their mistake in thinking Ireland was not bound by that Statute Mr. M. might have learn'd from the Year-Book 1 H. 7. that this was so far from the resolution of the Court 2 R. 3. that there was no Judgment but the Bill fell upon the demise of that King which till the Statute 1 E. 6. was a discontinuance of all real personal and mix'd Actions commenced in any of his Majesty's Courts and other Courts of Record And therefore 1 H. 7. the Suit was begun again as if commenced in that King's Reign and then the question coming before all the Judges in the Exchequer Chamber Hussey the Chief-Justice delivering the Judgment of the Court declared with the assent of the rest of the Judges that Ireland was bound by that Act and I leave to Mr. M. to make it out that this was directly contrary to the Judges opinion in the 2 d of R. 3. or that they were all positive that within the Land of Ireland the Authority of the Parliament of England will not affect them If there had been any such opinion 't was not delivered as the Judgment of the Court and however the Resolution 1 H. 7. has setled the Point another way This Case is abridg'd and the Resolution receiv'd for Law by Brook a Learned Judg in the Reign of H. 8. without any query which is usual where he doubted his tamen nota that Ireland is a Kingdom by it self and has Parliaments of its own implies no more than that this tho objected 2 R. 3. was of no weight to alter that judgment and is as much as to say a Kingdom may be distinct from the Crown of a Kingdom to which it is annexed and have Parliaments at home and yet be govern'd by the Statute Laws of that other Kingdom as subordinate to it And tho the naming that subordinate Kingdom in an Act of Parliament here or the otherwise manifesting an intention to bind it is no step towards obtaining a Parliamentary consent in Ireland yet 't is towards the submission and acquiescence of the People to those Laws by which they and their Forefathers had consented to be governed I may now leave it to Mr. M. to answer his own Questions Shall Ireland receive Charters of Liberties and be no partakers of the freedoms therein contained or do these words signify in England one thing and in Ireland no such thing Nor need I much fear his terrible Expostulation Whether it be not against natural Equity and Reason that a Kingdom regulated within it self and having its own Parliaments should be bound without their consent by the Parliament of another Kingdom But I should hope that he will admit it to be against natural Reason to go away with a Conclusion without some colour of proving the Premises and therefore before he had laid it home to English hearts to consider Whether Proceedings only of thirty seven years standing shall be urged against a Nation to deprive them of the Rights and Liberties which they enjoyed for five hundred years before He would have done well to have proved that any one Century or much less number of years for these five hundred years more Ireland was ever according to the terms of his own Question regulated within it self or that 't is a Kingdom of more than one hundred and sixty years standing But it seems just thirty seven years since and never before the Rights and Liberties which they had quietly enjoyed till then were invaded and from that day to this have been constantly complained of 'T is not to be expected that a man who remembers so little of those many Acts of Parliament made in Ireland which might have moderated his assurance in this matter should keep in memory even his own concessions to the contrary as where he grants that the Parliaments of England did at least claim a superiority before the 10 th of H. 4. and 29 H. 6. But then he says We have not one single Instance of an English Act of Parliament expresly claiming this right of binding us but we have several Instances of Irish Acts of Parliament expresly denying this Subordination Answ 1. As to the express claiming an Authority to do what is done by virtue of an Authority always suppos'd that 's so far from an Argument against it that it shews 't was never call'd in question 2. No Act of Parliament even in Ireland can be shewn or pretended denying the Subordination not but that there might be some question of the general binding for want of due publication either under the Great Seal of England or of otherwise knowing the Intention of the Parliament of England This not the Authority was the Ambiguity mentioned in the Statute of Ireland 8 E. 4. in relation to a Statute 6 R. 2. which without naming Ireland alters a Law that did name it 3. If there were such Act of Parliament in Ireland 13 E. 2. as 't is supposed that a certain Judg in Ireland had seen and that we might rely upon his Judgment in the sense of it receiving some Laws before that time made in England and suspending the execution of others what I have shewn above from undoubted Records may be enough to shew that this would not in the least weaken the Right of the Parliament of England exercised before and after that time And if there were another Statute 10 H. 4. that no Laws should be of force unless they were allow'd and published by a Parliament in Ireland This tho 't is a strain farther than 't is likely any Parliament of Ireland ever yet went would not necessarily infer any more than that the Laws made in England should be thus published to the end they might be more generally known not but that the intention of the Parliament of England made known under the great Seal
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