Iudgment of Law Whether he means the Law of Nature and Reason or of Nations or the Civil Laws of our Commonwealths in none of which Senses I conceive will he or any Man be ever able to make out his Position Is the Reason of England's Parliament not Binding Ireland Because we do not send thither Representatives And is the Efficacy of this Reason taken off by our being Named in an English Act Why should sending Representatives to Parliament Bind those that send them Meerly because thereby the Consent of those that are Bound is obtain'd as far as those sort of Meetings can possibly permit which is the very Foundation of the Obligation of all Laws And is Ireland's being Named in an English Act of Parliament the least step towards obtaining the Consent of the People of Ireland If it be not then certainly my Lord Cook 's Parenthesis is to no purpose And 't is a wonder to me that so many Men have run upon this vain Imagination meerly from the Assertion of this Judge For I challenge any Man to shew me that any one before him or any one since but from him has vended this Doctrine And if the bare Assertion of a Judge shall Bind a whole Nation and Dissolve the Rights and Liberties thereof We shall make their Tongues very powerful and constitute them greater Lawgivers than the greatest Senates I do not see why my Denying it should not be as Authentick as his Affirming it 'T is true He was a great Lawyer and a powerful Judge but had no more Authority to make a Law than I or any Man else But some will say He was a Learned Judge and may be supposed to have Reason for his Position Why then does he not give it us And then what he Asserts would Prevail not from the Authority of the Person but from the Force of the Reason The most Learned in the Laws have no more power to make or alter a Constitution than any other Man And their Decisions shall no farther prevail than supported by Reason and Equity I conceive my Ld. Ch. Justice Cooke apply'd himself so wholly to the Study of the Common Laws of England that he did not enquire far into the Laws of Nature and Nations if he had certainly he could never have been Guilty of such an Erroneous Slip He would have seen demonstrably that Consent only gives Humane Laws their Force and that therefore the Reason in the Case he quotes is unanswerable Quia non mittunt Milites ad Parliamentum Moreover the Assertion of Cooke in this point is directly contrary to the whole tenour of the Case which he cites For the very Act of Parliament on which the Debate of the Judges did arise and which they deemed not to be of Force in Ireland particularly names Ireland So that here again Ld. Cooke's Error appears most plainly For this I refer to the Report as I have exactly delivered it before pag. 90 91. By which it appears clearly to be the unanimous Opinion of all the Judges then in the Exchequer Chamber That within the Land of Ireland the Parliaments of England have no Jurisdiction whatever they may have over the Subjects of Ireland on the open Seas And the reason is given Quia Hibernia non mittit Milites ad Parliamentum in Angliâ This Assertion likewise is inconsistent with himself in other parts of his Works He tells us in his 4th Inst. pag. 349. That 't is plain that not only King John as all Men allow but Henry the Second also the Father of King John did Ordain and Command at the Instance of the Irish That such Laws as had been in England should be Observ'd and of Force in Ireland Hereby Ireland being of it self a distinct Dominion and no part of the Kingdom of England was to have Parliaments holden there as in England And in pag. 12. he tells us That Henry the Second sent a Modus into Ireland directing them how to hold their Parliaments But to what end was all this if Ireland nevertheless were subject to the Parliament of England The King and Parliaments of these Kingdoms are the supream Legislators If Ireland be subject to Two its Own and that of England it has Two Supreams 't is not impossible but they may Enact different or contrary Sanctions which of these shall the People Obey He tells us in Calvin's Case fol. 17. b. That if a King hath a Christian Kingdom by Conquest as Henry the Second had Ireland after King John had given to them being under his Obedience and Subjection the Laws of England for the Government of that Country no succeeding King could alter the same without Parliament Which by the way seems directly contradictory to what he says concerning Ireland six lines below this last cited passage So that we may observe my Lord Cook enormously stumbling at every turn in this Point Thus I have done with this Reverend Judge and in him with the only Positive Opinion against us I shall now consider what our Law-Books offer in our Favour on this Point To this purpose we meet a Case fully apposite reported in the Year-Book of the 20th of Henry the 6th fol. 8. between one Iohn Pilkington and one A. Pilkington brought a Scire Facias against A. to shew Cause why Letters Patents whereby the King had granted an Office in Ireland to the said A. should not be repeal'd since the said Pilkington had the same Office granted to him by former Letters Patents of the same King to be occupied by himself or his Deputy Whereupon A. pleaded That the Land of Ireland time out of Memory hath been a Land separated and distinct from the Land of England and Ruled and Governed by the Customs of the same Land of Ireland That the Lords of the same Land which are of the King's Council have used from time to time in the absence of the King to Elect a Iustice who hath Power to Pardon and Punish all Felons c. and to call a Parliament and by the Advice of the Lords and Commonalty to make Statutes He alledged further That a Parliament was Assembled and that it was Ordain'd by the said Parliament That every Man who had an Office within the said Land before a certain day shall occupy the said Office by himself otherwise he should forfeit He shew'd that Pilkington Occupied by a Deputy and that therefore his Office was void and that the King had granted the said Office to him the said A. Hereupon Pilkington Demurr'd in Law and it was debated by the Judges Yelverton Fortescue Portington Markham and Ascough whether the said Prescription in relation to the State and Government of Ireland be good oâ—… void in Law Yelverton and Portington held the Prescription void But Fortescue Markham and Ascough held the Prescription good and that the Letters Patents made to A were good and ought not to be Repeal'd And in this it was agreed by Fortescue and Portington That if
shall be Taken or Levy'd by Us or Our Heirs in Our Realm without the Good Will and Assent of Archbishops Bishops Earls Barons Knights Burgesses and other Freemen of the Land The like Liberties are specially Confirm'd to the Clergy the 14th of Edward the 3d. And were these Statutes and all other Statutes and Acts of the Parliament of England Ratified Confirmed and Adjudged by several Parliaments of Ireland to be of Force within this Realm And shall the People of Ireland receive no Benefit by those Acts Are those Statutes of Force in England only And can they add no Immunity or Priviledge to the Kingdom of Ireland when they are received there Can the King and Parliament make Acts in England to Bind his Subjects of Ireland without their Consent And can he make no Acts in Ireland with their Consent whereby they may receive any Priviledge or Immunity This were to make the Parliaments of Ireland wholly Illusory and of no Effect If this be Reasonable Doctrine To what end was Poyning's Law in Ireland that makes all the Statutes of England before that in Force in this Kingdom This might as well have been done and again undone when they please by a single Act of the English Parliament But let us not make thus light of Constitutions of Kingdoms 't is Dangerous to those who do it 't is Grievous to those that suffer it Moreover Had the King or his Council of England in the 10th year of Hen. VII in the least dreamt of this Doctrine to what end was all that strict Provision made by Poyning's Act Irish Stat. cap. 4. That no Act of Parliament should pass in Ireland before it was first Certified by the Chief Governour and Privy Council here under the Broad Seal of this Kingdom to the King and his Privy Council in England and received their Approbation and by them be remitted hither under the Broad Seal of England here to be pass'd into a Law The design of this Act seems to be the Prevention of any thing passing in the Parliament of Ireland Surreptitiously to the Prejudice of the King or the English Interest of Ireland But this was a needless Caution if the King and Parliament of England had Power at any time to revoke or annul any such Proceedings Upon this Act of Poynings many and various Acts have pass'd in Ireland relating to the Explanation Suspension or farther Corroboration thereof in divers Parliaments both in Henry the Eighth's Phil. Mary's and Q. Eliz. Reigns for which see the Irish Statutes All which shew that this Doctrine was hardly so much as Surmised in those Days however we come to have it raised in these Latter Times Fourthly 'T is against several Charters of Liberties Granted unto the Kingdom of Ireland This likewise is clearly made out by what foregoes I shall only add in this place That in the Patent-Roll of the 17 Rich. 2. m. 34. de Confirmatione There is a Confirmation of several Liberties and Immunities granted unto the Kingdom and People of Ireland by Edw. III. The Patent is somewhat long but so much as concerns this Particular I shall render verbatim as I have it Transcribed from the Roll by Sir William Doâ—…vile Attorny General in Ireland during the whole Reign of King Charles II. Rex omnibus c. Salutem Inspeximus Literas Patentes Domini Edwardi nuper Regis Angliae Avi nostri fact in haec verba Edwardus Dei Gra. Rex Angliae Franciae Dominus Hiberniae Archiepiscopis Episcopis Abbatibus Prioribus Ministris nostris tam Majoribus quam Minoribus quibuscunque aliis de Terra nostra Hiberniae fidelibus nostris ad quos Praesentes Literae pervenerint Salutem Quia c. Nos haec quae sequuntur Ordinanda Duximus firmiter observanda c. Imprimis vizt Volumus Praecipimus quod Sancta Hibernicana Ecclesia suas Libertates Liberas Consuetudines illesas habeat eis Libere gaudeat Utatur Item volumus praecipimus quod nostra ipsius Terrae Negotia presertim Majora Ardua in Consiliis per Peritos Consiliaros nostros ac Praelatos Magnates quosdam de Discretioribus Probioribus Hominibus de partibus vicinis ubi ipsa Concilia teneri Contigerit propter hoc evocandos in Parliamentis vero per ipsos Conciliaros nostros ac Praelatos Proceres aliosque de terra predicta prout Mos Exegit secundum Iusticiam Legem Consuetudinem Rationem tractentur deducantur fideliter timore favore odio aut praetio post positis discutiantur ac etiam terminentur c. In Cujus Rei Testimonium has Literas nostras fieri fecimus Patentes Teste meipso Apud Westminst 25 die Octob. Anno Regni nostris Angliae 31 Regni vero Franciae 18. Nos autem Ordinationes Voluntates Praecepta Praedicta ac omnia alia singula in Litteris praedictis Contenta Rata Habentes Grata Ea pro nobis Haeredibus nostris quantum in nobis est Acceptamus Approbamus Ratificamus Confirmamus prout Literae praedictae rationabiliter testanter In Cujus c. Test. Reg. apud Westminst 26 die Iunii Fifthly It is inconsistent with the Royalties and Praeeminence of a Separate and Distinct Kingdom That we are thus a Distinct Kingdom has been clearly made out before 'T is plain the Nobility of Ireland are an Order of Peers clearly Distinct from the Peerage of England the Priviledges of the one extend not into the other Kingdom a Lord of Ireland may be Arrested by his Body in England and so may a Lord of England in Ireland whilst their Persons remain Sacred in their respective Kingdoms A Voyage Royal may be made into Ireland as the Year-Book 11 Hen. 4. 17. fol. 7. and Lord Cook tells us and King Iohn in the 12th year of his Reign of England made a Voyage Royal into Ireland and all his Tenants in Chief which did not attend him in that Voyage did pay him Escuage at the Rate of Two Marks for every Knights Fee which was imposed super Praelatis Baronibus pro Passagio Regis in Hibernia as appears by the Pipe-Roll Scutag 12 Iohannis Regis in Scaccario Angl. Which shews that we are a Compleat Kingdom within our selves and not little better than a Province as some are so Extravagant as to Assert none of the Properties of a Roman Province agreeing in the least with our Constitution 'T is Resolved in Sir Richard Pembrough's Cafe in the 44th of Edw. III. That Sir Richard might lawfully refuse the King to serve him as his Deputy in Ireland and that the King could not Compel him thereto for that were to Banish him into another Kingdom which is against Magna Charta Chap. 29. Nay even tho Sir Richard had great Tenures from the King pro servitio Impenso Impendendo for that was said must be understood within the Realm of England Cooks 2d Inst.
by Advice of all his Faithful Counsellors in England to gratify the Irish says Pryn for their eminent Loyalty to his Father and Him he granted them out of his Special Grace that they and their Heirs for ever should enjoy the Liberties granted by his Father and Himself to the Realm of England which he Reduced into Writing and sent Seal'd thither under the Seal of the Popes Legat and W. Earl Marshal his Governour because he had then no Seal of his own This as I conceive Refers to the foremention'd Magna Charta Hiberniae The Record as Recited by Mr. Pryn here follows Rex Archiepiscopis Episcopis Abbatibus Comitibus Baronibus Militibus Libere Tenentibus omnibus Fidelibus suis per Hiberniam Constitutis Salutem Fidelitatem vestram in Domino Commendantes quam Domino Patri nostro semper Exhibuistis nobis estis diebus nostris Exhibituri Volumus quod in signum Fidelitatis vestrae tam praeclarae tam Insignis Libertatibus Regno nostro Angliae a Patre nostro nobis Concessis de gratia nostra Dono in Regno nostro Hiberniae guadeatis vos vestri Haeredes in perpetuum Quas Distincte in Scriptum Reductas de Communi Consilio omnium Fidelium nostrorum vobis Mittimus Signatas Sigillis Domini nostri G. Apostolicae Sedis Legati Fidelis nostri Com. W. Maresc Rectoris nostri Regni nostri quia Sigillum nondum habuimus easdem processu temporis de Majori Consilio proprio Sigillo Signaturi Teste apud Glouc. 6 Februar Here we have a free Grant of all the Liberties of England to the People of Ireland But we know the Liberties of Englishmen are Founded on that Universal Law of Nature that ought to prevail throughout the whole World of being Govern'd only by such Laws to which they give their own Consent by their Representatives in Parliament And here before I proceed farther I shall take Notice That in the late Raised Controversie Whether the House of Commons were an Essential part of Parliament before the 49th year of Henry the Third The Learned Mr. Petyt Keeper of the Records in the Tower in his Book on that Subject pag. 71. Deduces his 9th Argument From the Comparison of the Antient Generale Concilium or Parliament of Ireland instanced An. 38 Hen. III. with the Parliament in England wherein the Citizens and Burgesses were which was Eleven years before the pretended beginning of the Commons in England For thus we find it in that Author As great a Right and Privilege surely was and ought to be allow'd to the English Subjects as to the Irish before the 49th of Hen. III. And if that be admitted and that their the Irish Commune Concilium or Parliament had its Platform from ours the English as I think will not be Deny'd by any that have consider'd the History and Records touching that Land Ireland we shall find the ensuing Records Ann. 38 Hen. III. clearly evince that the Citizens and Burgesses were then a part of their the Irish Great Council or Parliament That King being in partibus Transmarinis and the Queen being left Regent she sends Writs or a Letter in the Kings Name directed Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus Militibus Liberis Hominibus Civibus Burgensibus Terrae suae Hiberniae telling them that Mittimus Fratrem Nicholaum de Sancto Neoto Fratrem Hospitii Sancti Iohannis Ierusalem in Anglia ad partes Hiberniae ad exponendum vobis together with I. Fitz-Geoffery the Kings Justice the State of his Land of Vascony endanger'd by the Hostile Invasion of the King of Castile qui nullo Iure sed potentia sua Confisus Terram nostram Vasconiae per ipsius Fortitudinem a manibus nostris Auferre a Dominio Regni Angliae segregare Proponit And therefore universitatem Vestram Quanta possumus Affectione Rogantes quatenus noâ—… jura nostra totaliter indefensâ—… non deserentes nobis in tanto periculo quantumcunque poteritis dâ—… Gente Pecunia subveniatis which would turn to their Everlasting Honour concluding His nostris Augustiis taliter Compâ—…tientes quod nos Heraedes nostri vobis Haeredibus vestris sumus non immerito Obligati Teste Regina R. Comite Cornubiae apud Windesor 17 die Februar Per Reginam Thus far Mr. Petyt Here we have a Letter from the Queen Regent to the Parliament in Ireland in an humble manner beseeching them for an Aid of Men and Money against the King of Castiles Hostile Invasion of Gascony from whence we may perceive that in those days no more than at present Men and Money could not be Rais'd but by Consent of Parliament I have been the more particular in Transcribing this Passage out of Mr. Petyt to shew that we have as Antient and Express an Authority for our present Constitution of Parliaments in Ireland as can be shewn in England And I believe it will not be thought Adviseable in these latter Days to break in upon Old Settled Constitutions No one knows how fatal the Consequents of that may be To return therefore where we Digress'd Henry the Third about the Twelfth year of his Reign did specially Impower Richard de Burgh then Iustice of Ireland at a certain day and place to summon all the Archbishops Bishops Abbots Priors Earls Barons Knights Freeholders and Sheriffs of each County and before them to cause to be Read the Charter of his Father King Iohn whereunto his Seal was Appendant whereby he had granted unto them the Laws and Customs of England and unto which they swore Obedience And that he should cause the same Laws to be observed and Proclaimed in the several Counties of Ireland that so none presume to do contrary to the Kings Command The Record I have taken out of Mr. a Pryn in these words Rex Dilecto Fideli suo Richardo de Burgo Justie ' suo Hibern Salutem Mandamus vobis firmiter praecipientes quatenus certo die Loco faciatis venire coram vobis Archiepiscopos Episcopos Abbates Priores Comites Barones Milites libere Tenentes Ballivos singulorum Comitatum coram eis Publice legi faciatis Chartam Domini J. Regis Patris nostri cui Sigillum suum appensum est quam fieri fecit jurari a Magnatibus Hibern de Legibus Consuetudinis Angliae Observandis in Hibernia Et praecipiatis eis ex parte nostra quod Leges illas Consuctudines in Charta praedicta contentas de caetero firmiter teneant observent hoc idem per singulos Commitatus Hiberniae clamari faciatis teneri prohibentes firmiter ex parte nostra super foris facturam nostram nequis contra hoc Mandatum nostrum venire praesumat c. Teste Me ipso Apud Westm ' 8 die Maii An. Reg. nostri 12. By what foregoes I presume it plainly appears that by three several Establishments
26 Hen. 8. c. 3. and the Act of Faculties 25 Hen. 8. c. 21. though each of them by express words comprize All his Majesties Subjects and Dominions were not receiv'd as Laws in Ireland till the former was Enacted there 28 H. 8. c. 4. and the latter the 28 Hen. 8. c. 19. and so the Stature Restoring to the Crown all Jurisdiction Ecclesiastical made in England Anno 1 Eliz. c. 1. and therein giving Power to Erect an Ecclesiastical High-Commission-Court in England and Ireland yet was not of Force in Ireland till Enacted there Anno 2 Eliz. c. 1. And tho the said English Act in relation to Erecting such an High-Commission Court was Repeal'd 17 Car. 1. c. 11 and the Repeal confirm'd the 13 Car. 2. c. 12 And the late Bill of Rights 1 W. and M. Ses. 2. c. 2. in England has damn'd all such Courts Yet the Act in Ireland 2 Eliz. c. 1. remains still in force here and so it was lately declar'd here by the Lord High-Chancellour Porter Lord Chief Justice Reynel Lord Chief Baron Hely Mr. Justice Cox Mr. Justice Ieffreyson in the Case of Dr. Thomas Hacket late Bishop of Down who was depriv'd of the said Bishoprick by such a Commission for great Enormities the Commissioners being Dr. Dopping late Bishop of Meath Dr. King the present Bishop of London-Derry and Dr. Wiseman late Bishop of Dromore And truly I see no more Reason for Binding Ireland by the English Laws under the General Words of all his Majesties Dominions or Subjects than there is for Binding Scotland by the same for Scotland is as much his Dominion and Scots-men as much his Subjects as Ireland and Irish-men If it be said That Scotland is an Antient Separate and Distinct Kingdom from England I say So is Ireland The Difference is Scotland continued separate from the Kings of England till of late years and Ireland continued separate from England but a very little while in the Person of King Iohn before the Death of his Father and of his Brother Richard the First without issue But then 't is to be considered that there was a Possibility or even a Probability that Ireland might have continued separate from the Crown of England even to this very day if Richard the First had left behind him a Numerous Progeny Secondly As to such English Statutes as particularly Name Ireland and are therefore said to be of Force in this Kingdom tho' never Enacted here I shall consider only the more Antient Precedents that are offered in Confirmation of this Doctrine For as to those of later Date 't is these we complain of as bearing hard on the Liberties of this Country and the Rights of our Parliaments and therefore these ought not to be produced as Arguments against us I presume if I can shew that the Antient Precedents that are produced do not conclude against us it will follow that the Modern Instances given ought not to conclude against us that is to say plainly These ought not to have been made as they are as wanting Foundation both from Authority and Reason The Antient Precedents of English Statutes particularly Naming Ireland and said to be made in England with a Design of Binding Ireland are chiefly these three 1. Statutum Hiberniae 14 H. 3. 2. Ordinatio pro Statu Hiberniae 17 Edw. 1. 3. And the Act that all Staple Commodities passing out of England or Ireland shall be carried to Callis as long as the Staple is at Callis 2 Hen. 6. c. 4. on which Hussey delivered his Opinion as we shall see more fully hereafter These Statutes especially the two first being made for Ireland as their Titles import have given occasion to think that the Parliament of England have a Right to make Laws for Ireland without the Consent of their Chosen Representatives But if we Enquire farther into this matter we shall find this Conclusion not fairly Deduced First The Statutum Hiberniae 14 Hen. 3. as 't is to be found in the Collection of English Statutes is plainly thus The Judges in Ireland conceiving a Doubt concerning Inheritances devolved to Sisters or Coheirs viz. Whether the younger Sisters ought to hold of the Eldest Sister and do Homage unto her for their Portions or of the Chief Lord and do Homage unto him therefore Girald Fitz Maurice the then Lord Justice of Ireland dispatcht four Knights to the King in England to bring a Certificate from thence of the Practice there used and what was the Common-Law of England in that Case Whereupon Hen. 3. in this his Certificate or Rescript which is called Statutum Hiberniae meerly informs the Justice what the Law and Custom was in England viz. That the Sisters ought to hold of the Chief Lord and not of the Eldest Sister And the close of it commands that the foresaid Customs that be used within our Realm of England in this Case be Proclaimed throughout our Dominion of Ireland and be there observ'd Teste meipso apud Westminst 9. Feb. An. Reg. 14. From whence 't is manifest that this Statutum Hiberniae was no more than a Certificate of what the common Law of England was in that Case which Ireland by the Original Compact was to be governed by And shews no more that therefore the Parliament of England may bind Ireland than it would have proved that the Common Wealth of Rome was subject to Greece if after Rome had received the Law of the Twelve Tables they had sent to Greece to know what the Law was in some Special Case The Statute call'd Ordinatio pro Statu Hiberniae made at Notingham the 17th of Edward the First and to be found in Pultons Collection pag. 76. Edit Lond. 1670. was certainly never Received or of Force in Ireland This is Manifest from the very first Article of that Ordnance which Prohibits the Iustice of Ireland or others the Kings Officers there to Purchase Land in that Kingdom or within their respective Balliwicks without the Kings Licence on pain of Forfeitures But that this has ever been Otherwise and that the Lords Justices and other Officers here have Purchas'd Lands in Ireland at their own Will and Pleasure needs no Proof to those who have the least knowledge of this Country Nor does it appear by any Inquisition Office or other Record that any one ever Forfeited on that Account Moreover this Ordinatio pro Statu Hiberniae is really in it self No Act of Parliament but meerly an Ordinance of the King and his Privy Council in England which appears as well from the Preamble to the said Ordinance as from this Observation likewise That King Edward the First held no Parliament in the 17th year of his Reign Or if this were a Parliament this Ordinatio pro Statu Hiberniae is the only Act thereof that is Extant But 't is very improbable that only this single Ordinance should Appear if any such Parliament were call'd together Thirdly As to the Staple-Act 2
's Time Knights of the Shire Citizens and Burgesses were Elected in the Shires Cities and Burroughs of Ireland to serve in Parliament in England and have so served accordingly For amongst the Records of the Tower of London Rot. Claus. 50. Edw. 3. Parl. 2. Membr 23. We find a Writ from the King at Westminster directed to Iames Butler Lord Justice of Ireland and to R. Archbishop of Dublin his Chancellour requiring them to issue Writs under the Great Seal of Ireland to the several Counties Cities and Burroughs for satisfying the Expences of the Men of that Land who last came over to serve in Parliament in England And in another Roll the 50th of Edw. III. Membr 19. On Complaint to the King by Iohn Draper who was Chosen Burgess of Cork by Writ and served in the Parliament of England and yet was deny'd his Expences by some of the Citizens Care was taken to re-imburse him If from these last mention'd Records it be concluded that the Parliament of England may Bind Ireland it must also be Allow'd that the People of Ireland ought to have their Representatives in the Parliament of England And this I believe we should be willing enough to embrace but this is an Happiness we can hardly hope for This sending of Representatives out of Ireland to the Parliament in England on some occasions was found in process of time to be very Troublesome and Inconvenient and this we may presume was the Reason that afterwards when Times were more settled we fell again into our old Track and regular course of Parliaments in our own Country and hereupon the Laws afore-noted pag. 64. were Enacted Establishing that no Law made in the Parliament of England should be of force in Ireland till it was Allow'd and Publish'd in Parliament here I have said before pag. 85. that I would only consider the more Antient Precedents that are offered to prove That Acts of England particularly Naming Ireland should bind us in this Kingdom and indeed it were sufficient to stop here for the Reason above alledged However I shall venture to come down lower and to enquire into the Modern Precedents of English Acts of Parliament alledged against us But still with this Observation That 't is these we Complain against as Innovations and therefore they ought not to be brought in Argument against us I do therefore again assert that before the Year 1641. there was no Statute made in England introductory of a New Law that interfered with the Right which the People of Ireland have to make Laws for themselves except only those which we have before mentioned and which we have discuss'd at large and submit to the Readers â—…udgment But in the Year 1641. and afterwards in Cromwel's time and since that in King Charles II. and again very lately in King William's Reign some Laws have been made in England to be of Force in Ireland But how this came to pass we shall now Enquire In the 17th Year of K. Charles I. which was in the Year 1642. there were three or four Acts of Parliament made in England for incouraging Adventurers to raise Money for the speedy suppression of the Horrid Rebellion which broke out in Ireland the 23d of October 1641 The Titles of these Acts we have in Pulton's Collection of Statutes But with this Remark That they are made of no Force by the Acts of Setlement and Explanation passed in King Charles Il's time in the Kingdom of Ireland So that in these we are so far from finding Precedents for England's Parliament binding Ireland that they plainly shew that the Parliament of Ireland may Reâ—… an Act passed in England in relation to the Affairs of Ireland For 't is very well known that Persons who were to have Interests and Titles in Ireland by virtue of those Acts passed in England are cut off by the Acts of Settlement and Explanation And indeed there is all the Reason in the World that it should be so and that Acts made in a Kingdom by the Legal Representatives of the People should take place of those made in another Kingdom But however it will be said that by those Acts 't is manifest that England did presume they had such a Right to pass Acts binding Ireland or else they had ne'er done it To which I answer That considering the condition Ireland was in at that time viz. under an horrid Intestine Rebellion flaming in every corner of the Kingdom 't was impossible to have a Parliament of our own yet it was absolutely necessary that something should be done towards suppressing the Violences then raging amongst us And the only means could then be practised was for the Parliament of England to interpose and do something for our Relief and Safety these were the best Assurances could be had at that juncture But when the Storm was over and the Kingdom quieted we see new Measures were taken in a Legal Parliament of our own As to what was done for Ireland in the Parliament of England in Cromwel's time besides the Confusion and Irregularity of all Proceeding in those days which hinders any of them to be brought into Precedent in these times We shall find also that then there were Representatives sent out of this Kingdom who sate in the Parliament of England which then was only the House of Commons We cannot therefore argue from hence that England may bind us for we see they allow'd us Representatives without which they rightly concluded they could not make Laws Obligatory to us I come now to King Charles the 2ds time And in it we shall find the following English Statutes made in which the Kingdom of Ireland is concerned The first is an Act against Importing Cattle from Ireland or other Parts beyond Seas It was only temporary by 18 Ch. 2. c. 2. but made perpetual 20 Ch. 2. c. 7. and 32 Ch. 2. c. 2. This Act however prejudicial to the Trade that was then carried on between Ireland and England does not properly Bind us more than it does any other Country of the World When any thing is Imported and Landed in England it becomes immediately subject to the Laws thereof so that herein we cannot be said properly to be bound Secondly The Acts against Planting Tobacco in England and Ireland 12 Ch. 2. c. 34. and 15 Ch. 2. c. 7. and 22 and 23 Ch. 2. c. 26 c. do positively Bind Ireland But there has never been an Occasion of Executing it here for I have not heard that a Rood of Tobacco was ever Planted in this Kingdom But however that takes not off the Obligation of the Law 'T is only want of our Consent that I urge against that I see no more Reason for sending a Force to Trample down an Acre of Tobacco in Ireland by these Statutes than there would be for Cutting down the Woods of Shelela were there an Act made in England against our Planting or Having Timber Thirdly The Act for
it but with all possible Gratitude Acknowledge the Mighty Benefits Ireland has often receiv'd from England in helping to suppress the Rebellions of this Counâ—…ry To England's Charitable Assistance our Lives and Fortunes are owing But with all humble Submission I desire it may be considered whether England did not at â—…he same time propose the Prevention of their own Danger that would necessarily have attended our Ruine if so 't was in some measure their own Battels they fought when they fought for Ireland and a great part of their Expence must be reckon'd in their own Defence Another thing alledged against Ireland is this If a Foreign Nation as France or Spain for instance prove prejudicial to England in its Trade or any other way England if it be stronger redresses it self by Force of Arms or Denouncing War and why may not England if Ireland lies cross their Interests restrain Ireland and bind it by Laws and maintain these Laws by Force To this I answer First That it will hardly be instanced that any Nation ever Declared War with another meerly for over-topping them in some signal Advantage which otherwise or but for their Endeavours they might have reaped War only is Justifiable for Injustice done or Violence offer'd or Rights detain'd I cannot by the Law of Nations quarrel with a Man because he going before me in the Road finds a Piece of Gold which possibly if he had not taken it up I might have light upon and gotten 'T is true we often see Wars commenced on this Account under-hand and on Emulation in Trade and Riches but then this is never made the Open Pretence some other Colour it must receive or else it would not look fair which shews plainly that this Pretence of being Prejudicial or of reaping Advantages which otherwise you might partake of is not Iustifiable in it self But granting that it were a good Justification of a War with a Foreign Nation it will make nothing in the Case between England and Ireland for if it did 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 We are all the same Kings Subjects the Children of one Common Parent and tho' we may have our Distinct Rights and Inheritances absolutely within our selves yet we ought not when these do chance a little to interfere to the prejudice of one or t'other side immediately to treat one another as Enemies fair Amicable Propositions should be proposed and when these are not hearkened to then 't is time enough to be at Enmity and use Force The last thing I shall take Notice of that some raise against us is That Ireland is to be look'd upon only as a Colony from England And therefore as the Roman Colonies were subject to and bound by the Laws made by the Senate at Rome so ought Ireland by those made by the Great Council at Westminster Of all the Objections raised against us I take this to be the most Extravagant it seems not to have the least Foundation or Colour from Reason or Record Does it not manifestly appear by the Constitution of Ireland that 't is a Compleat Kingdom within it self Do not the Kings of England bear the Stile of Ireland amongst the rest of their Kingdoms Is this Agreeable to the nature of a Colony Do they use the Title of Kings of Virginia New-England or mary-Mary-Land Was not Ireland given by Henry the Second in a Parliament at Oxford to his Son Iohn and made thereby an Absolute Kingdom separate and wholly Independent on England till they both came United again in him after the Death of his Brother Richard without Issue Have not multitudes of Acts of Parliament both in England and Ireland declared Ireland a Compleat Kingdom Is not Ireland stiled in them All the Kingdom or Realm of Ireland Do these Names agree to a Colony Have we not a Parliament and Courts of Judicature Do these things agree with a Colony This on all hands involves so many Absurdities that I think it deserves nothing more of our Consideration These being the only remaining Arguments that are sometimes mention'd Against us I now proceed to offer what I humbly conceive Demonstrates the Justice of our Cause And herein I must beg the Reader 's Patience if now and then I am forced lightly to touch upon some Particulars foregoing I shall Endeavour all I can to avoid prolix Repetitions but my Subject requires that sometimes I just mention or refer to several Notes before delivered First therefore I say That Ireland should be Bound by Acts of Parliament made in England is against Reason and the Common Rights of all Mankind All Men are by Nature in a state of Equality in respect of Jurisdiction or Dominion This I take to be a Principle in it self so evident that it stands in need of little Proof 'T is not to be conceiv'd that Creatures of the same Species and Rank promiscuously born to all the same Advantages of Nature and the use of the same Faculties should be Subordinate and Subject one to another These to this or that of the same Kind On this Equality in Nature is founded that Right which all Men claim of being free from all Subjection to Positive Laws till by their own Consent they give up their Freedom by entring into Civil Societies for the common Benefit of all the Members thereof And on this Consent depends the Obligation of all Humane Laws insomuch that without it by the Unanimous Opinion of all Iurists no Sanctions are of any Force For this let us Appeal amongst many only to the Iudicious Mr. Hooker's Eccles. Polity Book 1. Sec. 10. Lond. Ed it 1676. Thus He. Howbeit Laws do not take their Constraining force from the Quality of such as Devise them but from that Power which doth give them the strength of Laws That which we spake before concerning the Power of Government must here be applied to the Power of making Laws whereby to Govern which Power God hath over All and by the Natural Law whereunto he hath made all subject the Lawful Power of making Laws to command whole Politick Societies of Men belongeth so properly unto the same entire Societies that for any Prince or Potentate of what kind soever upon Earth to exercise the same of himself and not either by express Commission immediately and personally receiv'd from God or else by Authority derived at the first from their Consent upon whose Persons they impose Laws it is no better than meer Tyranny Laws they are not therefore which Publick Approbation hath not made so But Approbation not only they Give who Personally declare their Assent by Voice Sign or Act but also when others do it in their Names by Right Originally at the least derived from them As in Parliaments Councils c. Again Sith Men Naturally have no full and perfect Power to command whole Politick
pag. 47. And in Pilkington's Case aforemention'd Fortescue declared That the Land of Ireland is and at all times hath been a Dominion Separate and Divided from England How then can the Realms of England and Ireland being Distinct Kingdoms and Separate Dominions be imagin'd to have any Superiority or Iurisdiction the one over the other 'T is absurd to fancy that Kingdoms are Separate and Distinct meerly from the Geographical Distinction of Territories Kingdoms become Distinct by Distinct Iurisdictions and Authorities Legislative and Executive and as Rex est qui Regem non habet so Regnum est quod alio non Subjicitur Regno A Kingdom can have no Supream 't is in it self Supream within it self and must have all Jurisdictions Authorities and Praeeminencies to the Royal State of a Kingdom belonging or else 't is none And that Ireland has all these is declared in the Irish Stat. 33 Hen. VIII c. 1. The chief of these most certainly is the Power of Making and Abrogating its own Laws and being bound only by such to which the Community have given their Consent Sixthly It is against the Kings Prerogative that the Parliament of England should have any Co-ordinate Power with Him to introduce New Laws or Repeal Old Laws Established in Ireland By the Constitution of Ireland under Poyning's Act the King's Prerogative in the Legislature is advanced to a much higher Pitch than ever was Challenged by the Kings in England and the Parliament of Ireland stands almost on the same bottom as the King does in England I say almost on the same Bottom for the Irish Parliament have not only a Negative Vote as the King has in England to whatever Laws the King and his Privy 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 according to Poyning's Act must be Pass'd or Rejected in the very Words even to a Tittle as they are said before our Parliament we cannot alter the least Iota 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 Kings Prerogative is much Narrower and as it were Reversed for there the King has only a Negative Vote I humbly conceive 't is an Incroachment on the Kings Prerogative But this I am sure the Parliament of England will be always very Tender of and His Majesty will be very loth to have such a Precious Jewel of his Crown handled rufly The Happiness of our Constitutions depending on a Right Temperament between the Kings and the Peoples Rights Seventhly It is against the Practice of all former Ages Wherein can it appear that any Statute made in England was at any time since the Reign of Henry the Third allowed and put in practice in the Realm of Ireland without the Authority of the Parliament of Ireland Is it not manifest by what foregoes that from the Twentieth of King Henry the Third to the Thirteenth of Edward the Second and from thence to the Eighteenth of Henry the Sixth and from thence to the Thirty-Second of Henry the Sixth and from thence to the Eighth of Edward the Fourth and from thence to the Tenth of Henry the seventh there was special care taken to Introduce the Statutes of England such of them as were necessary or convenient for this Kingdom by degrees and always with Allowance and Consent of the Parliament and People of Ireland And since the General Allowance of all the English Acts and Statutes in the Tenth of Henry the Seventh there have several Acts of Parliament which were made in England in the Reigns of all the Kings from that Time Successively to this very Day been particularly Receiv'd by Parliament in Ireland and so they become of force here and not by reason of any General Comprehensive words as some Men have lately fancied For if by General Comprehensive Words the Kingdom of Ireland could be bound by the Acts of Parliament of England what needed all the former Receptions in the Parliament of Ireland or what use will there be of the Parliament of Ireland at any time If the Religion Lives Liberties Fortunes and Estates of the Clergy Nobility and Gentry of Ireland may be dispos'd of without their Privity and Consent what Benefit have they of any Laws Liberties or Priviledges granted unto them by the Crown of England I am loth to give their Condition an hard Name but I have no other Notion of Slavery but being Bound by a Law to which I do not Consent Eighthly 'T is against several Resolutions of the Learned Iudges of former times in the very Point in Question This is manifest from what foregoes in the Case of the Merchants of Waterford Pilkington's Case Prior of Lanthony's Case c. But I shall not here inlarge farther thereon Ninthly The Obligation of all Laws having the same Foundation if One Law may be Imposed without Consent any Other Law whatever may be Imposed on us Without our Consent This will naturally introduce Taxing us without our Consent and this as necessarily destroys our Property I have no other Notion of Property but a Power of Disposing my Good as I please and not as anotheâ—… shall Command Whatever another may Rightfully take from me without my Consent I have certainly no Property in To Tax me without Consent is little better if at all than down-right Robbing me I am sure the Great Patriots of Liberty and Property the Free Peo Ple of England cannot think of such a thing but with Abhorrence Lastly The People of Ireland are left by this Doctrine in the Greatest Confusion and Uncertainty Imaginable We are certainly bound to Obey the Supream Authority over us and yet hereby we are not permitted to know Who or What the same is whether the Parliament of England or that of Ireland or Both And in what Cases the One and in what the Other Which Uncertainty is or may be made a Pretence at any time for Disobedience It is not impossible but the Different Legislatures we are subject to may Enact Different or Contrary Sanctions Which of these must we obey To conclude all I think it highly Inconvenient for England to Assume this Authority over the Kingdom of Ireland I believe there will need no great Arguments to convince the Wise Assembly of English Senators how inconvenient it may be to England to do that which may make the Lords and People of Ireland think that they are not Well Used and may drive them into Discontent The Laws and Liberties of England were granted above five hundred years ago to the People of Ireland upon their Submissions to the
Multitudes of Men therefore utterly without our Consent we could in such sort be at no Mans Commandment living And to be commanded we do consent when that Society whereof we are part hath at any time before consented without revoking the same after by the like Universal Agreement Wherefore as any Mans Deed past is good as long as himself continueth so the Act of a Publick Society of Men done five hundred years sithence standeth as theirs who presently are of the same Societies because Corporations are Immortal we were then alive in our Predecessors and they in their Successors do still live Laws therefore Humane of what kind soever are available by Consent c. And again But what matter the Law of Nations doth contain I omit to search the strength and vertue of that Law is such that no particular Nation can lawfully prejudice the same by any their several Laws and Ordinances more then a Man by his Private Resolutions the Law of the whole Commonwealth or State wherein he liveth for as Civil Law being the Act of a whole Body Politick doth therefore over-rule each Civil part of the same Body so there is no Reason that any one Commonwealth of it self should to the Prejudice of another annihilate that whereupon the whole World hath Agreed To the same purpose may we find the Universal Agreement of all Civilians Grotius Puffendorf Lock 's Treat Government c. No one or more Men can by Nature challenge any Right Liberty or Freedom or any Ease in his Property Estate or Conscience which all other Men have not an Equally Iust Claim to Is England a Free People So ought France to be Is Poland so Turky likewise and all the Eastern Dominions ought to be so And the same runs throughout the whole Race of Mankind Secondly 'T is against the Common Laws of England which are of Force both in England and Ireland by the Original Compact before hinted It is Declared by both Houses of the Parliament of England 1 Iac. cap. 1. That in the High Court of Parliament all the whole Body of the Realm and every particular Member thereof either in Person or by Representation upon their own Free Elections are by the Laws of this Realm deem'd to be Personally present Is this then the common Law of England and the Birth-right of every Free-born English Subject And shall we of this Kingdom be deny'd it by having Laws imposed on us where we are neither Personally nor Representatively present My Lord Cooke in his 4th Inst. cap. 1. saith That all the Lords Spiritual and Temporal and all the Commons of the whole Realm ought ex Debito Justiciae to be Summon'd to Parliament and none of them ought to be Omitted Hence it is call'd Generale Concilium in the Stat. of Westminst 1. and Commune Concilium because it is to comprehend all Persons and Estates in the whole Kingdom And this is the very Reason given in the Case of the Merchants of Waterford foregoing why Statutes made in England should not bind them in Ireland Quia non habent Milites hic in Parliamento Because they have no Representatives in the Parliament of England My Lord Hobbard in the Case of Savage and Day pronounced it for Law That whatever is against Natural Equity and Reason is against Law Nay if an Act of Parliament were made against Natural Equity and Reason that Act was void Whether it be not against Equity and Reason that a Kingdom regulated within it self and having its own Parliament should be Bound without their Consent by the Parliament of another Kingdom I leave the Reader to consider My Lord Cooke likewise in the first Part of his Institutes fol. 97. b. saith Nihil quod est contra Rationem est Licitum And in the old Modus Tenendi Parliamenta of England said to be writ about Edward the Confessor's time and to have been Confirmed and Approved by William the Conqueror It is expresly declared That all the Lords Spiritual and Temporal and the Knights Citizens and Burgesses ought to be summoned to Parliament The very same is in the Modus sent into Ireland by Henry the 2d And in King Iohn's Great Charter dated 17. Iohannis 't is granted in these words Et ad habend Commune Concilium Regni de Auxiliis Scutagiis Assidendis Submoneri faciemus Arâ—…hiepiscopos Episcopos Abbates Comites Majores Barones Regni Sigillatim per Literas Nostras faciemus submoneri in generali per Vicecomites omnes alios c. Math. Paris ad An. 17. Iohann All are to be Summoned to Parliament the Nobility by special Writts the Commons by general Writts to the Sheriffs And is this the Common Law of England Is this part of those Liberae Consuetudines that were contained in the Great Charter of the Liberties of the People of England And were so solemnly granted by Henry II. King Iohn and Henry the 3d to the People of Ireland that they shou'd Enjoy and be Governd by and unto which they were Sworn to be Obedient And shall they be of Force only in England and not in Ireland Shall Ireland Receive these Charters of Liberties and be no Partakers of the Freedoms therein contained Or do these words signifie in England one thing and in Ireland no such thing This is so repugnant to all Natural Reason and Equity that I hope no Rational Man will Contest it I am sure if it be so there 's an end of all Speech amongst Men All Compacts Agreements and Societies are to no purpose 3. It is against the Statute Laws both of England and Ireland this has been pretty fully disuss'd before however I shall here again take notice That in the 10. of Henry the 4th it was Enacted in Ireland that Statutes made in England should not be of Force in Ireland unless they were Allowed and Published by the Parliament of Ireland And the like Statute was made the 29th of Henry the 6th And in the 10th Year of Henry the 7th Chap. 23 Irish Statutes The Parliameâ—… which was held at Drogheda beforâ—… Sir Christopher Preston Deputy to Iaspar Duke of Bedford Lieutâ—… nant of Ireland was declared Void for this Reason amongst others That there was no General Summons of the said Parliament to all the Shires but only to Four And if Acts of Parliament made in Irelanâ—… shall not Bind that People because some Counties were omitted how much less shall either their Persons or Estates be Bound by those Acts made in England whereat no one County or Person of that Kingdom is present In the 25tâ—… of Edward the 1st Cap. 6. It was Enacted by the Parliament of England in these Words Moreover from henceforth we shall take no manner of Aid Taxes or Prizes but by the Common Assent of the Realm And again in the Statute of Liber ties by the same King Cap. 1. Dâ—… Tallag non Concedend it is Enacted in these Words No Tallage or Aid