I HAVE ever been se Introduction, and Occasion of this Dis­quisition. fully perswaded of the strict Justice of the Parlia­ment of England, that I could never think that any of Their Proceedings, which might seem to have the least Tendency to Hardship on their Neighbours, could arise from any thing but want of Due Infor­mation, and a right State of the [Page 2] Business under their Consideration. The want of which, in Matters wherein another People are chiefly Concern'd, is no Defect in the Par­liament of England, but is high­ly Blameable in the Persons whose Affair is Transacting, and who permit that Illustrious Body of Se­nators to be Mis-inform'd, with­out giving them that Light that might Rectifie them.

I could never Imagine that those Great Assertors of their Own Liber­ties and Rights, could ever think of making the least Breach in the Rights and Liberties of their Neigh­bours, unless they thought that they had Right so to do; and this they might well surmise, if their Neighbours quietly see their In­closures Invaded, without Expo­stulating the Matter at least, and shewing Reasons, why they may think that Hardships are put upon them therein.

The Consideration hereof has Excited me to undertake this Dis­quisition, which I do with all Ima­ginable Diffidence of my own Per­formance, and with the most pro­found [Page 3] Respect and Deference to that August Senate. The present Juncture of Affairs, when the Busi­ness of Ireland is under the Consi­deration of both Houses of the English Parliament, Bishop of Derry in the House of Lords, and Prohibiting Exportation of our Wool­len Manufa­cture in the House of Commons. seems to re­quire this from some Person; and seeing all Others silent, I venture to Expose my own Weakness, ra­ther than be wanting at this time to my Country. I might say indeed to Mankind; for 'tis the Cause of the whole Race of Adam, that I Argue: Liberty seems the Inherent Right of all Mankind; and on whatsoever Ground any one Nati­on can Challenge it to themselves, on the same Reason may the Rest of Adam's Children Expect it.

If what I Offer herein seems to carry any Weight, in relation to my own Poor Country, I shall be abundantly happy in the Attempt: But if after all, the Great Council of England Resolve the contrary, [...] shall then believe my self to be [...]n an Error, and with the lowest Submission ask Pardon for my As­surance. However, I humbly pre­sume I shall not be hardly Censur'd [Page 4] by them, for offering to lay before them a fair State of our Case, by such Information as I can procure; espe­cially when at the same time I de­clare my Intention of a Submissive Acquiescence in whatever they Re­solve for or against what I Offer.

The Subject therefore of our Subject of this Enquiry. present Disquisition shall be, How far the Parliament of England may think it Reasonable to intermeddle with the Affairs of Ireland, and Bind us up by Laws made in their House.

And seeing the Right 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; We shall Enquire into the following Particulars.

(1.) First, How Ireland became a Kingdom Annex'd to the Crown of England. And here we shall at large give a faithful Narrative of the First Expedition of the Bri­tains into this Country, and King [Page 5] Henry the Second's Arrival here, such as our best Historians give us.

(2.) Secondly, We shall Enquire, Whether this Expedition, and the English Settlement that afterwards follow'd thereon, can properly be call'd a Conquest? Or whether any Victories obtain'd by the English, in any succeeding Ages in this Kingdom, upon any Rebellion, may be call'd a Conquest thereof?

(3.) Thirdly, Granting that it were a Conquest, we shall Enquire what Title a Conquest gives.

(4.) Fourthly, We shall Enquire what Concessions have been from time to time made to Ireland, to take off what even the most Rigo­rous Assertors of a Conquerour's Title do pretend to. And herein we shall shew by what Degrees the English Form of Government, and the English Statute-Laws, came to be received among us: And this shall appear, to be wholly by the Consent of the People and Parlia­ment of Ireland.

[Page 6] (5.) Fifthly, We shall Enquire into the Precedents and Opinions of the Learned in the Laws, rela­ting to this Matter, with Obser­vations thereon.

(6.) Sixthly, We shall Consider the Reasons and Arguments that may be farther Offered on one side and t'other; and shall Draw some General Conclusions from the Whole.

As to the First, We shall find Britain's first Expedition in­to Ireland. the History of the First Expedi­tion of the English into Ireland, to be briefly thus: In the Reign of King Henry the Second, Dermot Fitzmurchard, commonly called Mac-Morrogh, Prince of Leinster, who was a Man Cruel and Op­pressive, after many Battels with other Princes of Ireland, and be­ing Beaten and put to Flight by them, Apply'd for Relief to King Henry the Second, who was then busied in Aquitain; the King was not then in such Circumstances as to afford him much Help: How­ever thus much he did for him, [Page 7] By Letters Patents he granted Li­cense to all his Subjects through­out his Dominions, to Assist the said Prince to Recover his Domi­nions. These Letters Patents are to be seen in Giraldus Cambr. Hib. Expug. Lib. I. C. 1, Giraldus Cambrensis, who was Historiographer and Se­cretary to King Hen. II. and Ac­companied him in his Expedition into Ireland, and from him it is that we have this Relation. The Irish Prince brought these Letters into England, and caused them to be Read in the Audience of many People; Beating up, as it were, for Voluntiers and free Adventurers into Ireland. At length, Richard Earl of Strigul (now Chepstow in Monmouthshire) Son of Earl Gil­bert, call'd Strongbow, Agreed with him, to Assist him in the Recovery of his Country, on Condition that Dermot should give him his Eldest Daughter in Marriage, and his Kingdom of Leinster after his Death. About the same time Ro­bert Fitz-Stephen, Governour of Aberlefie in Wales, Agreed like­wise with Dermot to help him, on Condition that he would grant to him and Maurice Fitzgerald in Fee [Page 8] the City of Wexford, with two Cantreds or Hundreds of Land near adjoyning.

These Adventurers afterwards went over, and were successful in Treating with the Irish, and Ta­king Wexford, Waterford, Dublin, and other Places. Whereupon Earl Richard Strongbow married Dermot's Daughter, and according to Com­pact, succeeded him in his King­dom.

A little after the Descent of these Hen. II. comes into Ireland. Adventurers, King Henry II. him­self went into Ireland with an Ar­my, in November 1172. and finding that his Subjects of England had made a very good hand of their Expedition, he obtain'd from Earl Richard Strongbow a Surrender of Dublin, with the Cantreds adjoyn­ing, and all the Maritine Towns and Castles. But Strongbow and his Heirs were to Enjoy the Resi­due of Dermot's Principality.

King Hen. II. Landed at Water­ford Irish submit to him. from Milford in Pembrookshire, and staying there some few days, [Page 9] (says Giraldus Cambrensis) Rex Cor­cagiensis Dormitius advenit ei, & tam Subjectionis vinculo quam fideli­tatis Sacramento Regi Anglorum se sponte submisit. He freely swore Feal­ty and Subjection to the King of England.

From thence he went to Lismore, and thence to Cashel, where Dunal­dus King of Lymerick, se quoque fide­lem Regi exhibuit. The like did all the Nobility and Princes in the South of Ireland.

Afterwards he marched to Dub­lin, and there the Princes of the Adjacent Countries came to him, & sub Fidelitatis & Subjectionis ob­tentu a Rege Pacem impetrabant. Thus Cambrensis in his Hibernia Expugnata; and there he mentions the several Princes that came in, vizt. Macshaghlin King of Ophaly, O Carrol King of Uriel (now Lowth) O Rourk King of Meath, Rotherick O Connor King of Connaught, and Monarch as it were of the whole Island, with divers others, qui fir­missimis fidelitatis & subjectionis vin­culis Domino Regi innodarunt & in [Page 10] singulari Rotherico Conactiae Principe tanquam Insulae Monarchâ subditi redduntur universi, nec alicujus fere in Insula vel nominis vel ominis erat qui Regiae Majestati & Debitam Do­mino Reverentiam, non exhiberet.

The same Relation we have from Roger Hoveden (Annal. pars­poster. fol. 301.) About the Ka­lends of November 1172. (saith he) King Henry II. of England, took Shipping for Ireland at Milford, and Landed at Waterford, & ibi vene­runt ad eum Rex Corcagiensis, Rex de Lymerick, Rex de Oxenie, Rex Mi­diae, & fere omnes Hiberniae Poten­tes. And a little afterwards in the same place speaking of King Henry the Second's being at Waterford, ibidem venerunt ad Regem Angliae omnes Archiepiscopi, Episcopi, & Abbates totius Hiberniae, & recepe­runt eum in Regem & Dominum Hi­berniae jurantes ei & heredibus suis Fidelitatem & Regnandi super eos Potestatem in perpetuum & inde De­derunt ei Chartas suas. Exemplo au­tem Clericorum predicti Reges & Principes Hiberniae receperunt simili modo Henricum Regem Angliae in [Page 11] Dominum & Regem Hiberniae, & sui devenerunt, & ei & Heredibus suis Fidelitatem contra omnes Iura­verunt.

Matthew Paris likewise in his History speaking of King Hen. II. being in Ireland, saith, Archiepis­copi & Episcopi ipsum in Regem & Dominum receperunt, & ei Fidelita­tem & Homagium Iuraverunt.

Iohn Brampton Abbot of Iorna­ [...] in his Historia Iornalensi, pag. 1070. speaking of Hen. II. hath these words, Recepit ab unoquoque Archiepiscopo & Episcopo Hiberniae Literas cum Sigillis suis in modum Chartae pendentibus, Regnum Hiber­niae sibi & Haeredibus suis Confir­mantes, & Testimonium perhibentes ipsos in Hibernia eum & Heredes suos sibi in Reges & Dominos in per­petuum Constituisse. All the Arch­bishops, Bishops, and Abbots of Ire­land came to the King of England, and Received him for King and Lord of Ireland, swearing Fealty to him and his Heirs for ever. The Kings also and Princes of Ireland, did in like manner Receive Henry [Page 12] King of England, for Lord of Ire­land, and became his Men, and did him Homage, and swore Fealty to him and his Heirs against all Men. And he received Letters from them with their Seals pendent in man­ner of Charters, confirming the Kingdom of Ireland to him and his Heirs; and Testifying, that they in Ireland had Ordain'd him and his Heirs to be their King and Lord of Ireland for ever. After which, he return'd into England in April following, vizt. April 1173.

I come now to Enquire into our Second Particular proposed, Viz. Ireland whe­ther ever Con­quer'd. Whether Ireland might be proper­ly said to be Conquer'd by King Henry the Second, or by any other Prince in any succeeding Rebel­lion. And here we are to under­stand by Conquest, an Acquisition of a Kingdom by Force of Arms, to which, Force likewise has been Opposed, if we are to understand Conquest in any other sense, I see not of what Use it can be made against Irelands being a Free Country. I know Conquestus signifies a Peaceable Ac­quisition, as well as an Hostile [Page 13] Subjugating of an Enemy. Vid. Spelman's Glos. And in this sense William the First is call'd the Con­querour, and many of our Kings have used the Epocha post Conque­stum. And so likewise Henry the Second stiled himself Conquestor & Dominus Hiberniae; but that His Conquest was no violent Subjuga­tion of this Kingdom, is manifest from what foregoes: For here we have an Intire and Voluntary Sub­mission of all the Ecclesiastical and Civil States of Ireland, to King Henry II. without the least Hostile Stroke on any side; We hear not in any of the Chronicles of any Violence on either Part, all was Transacted with the greatest Quiet, Tranquility, and Freedom, imaginable. I doubt not but the Barbarous People of the Island at that time were struck with Fear and Terror of King Hen. Il's Powerful Force which he brought with him: but still their Easie and Voluntary Submissions Exempts them from the Consequents of an Hostile Con­quest, whatever they are; where there is no Opposition, such a Con­quest can take no place.

[Page 14] I have before taken Notice of Henry the Il's using the Stile of Conquestor Hiberniae; Mr. Selden will not allow that ever H. 2. used this Stile. Tit. Hon. Par. 2. G. 5. Sect. 26. I presume no Argument can be drawn from hence, for Ireland's being a Con­quer'd Country; for we find that many of the Kings of England have used the Aera of post Conque­stum; Edward the Third was the first that used it in England, and we frequently meet with Henricus post Conquestum Quartus, &c. as ta­king the Norman Invasion of Willi­am the First, for a Conquest. But I believe the People of England would take it very ill to be thought a Conquer'd Nation, in the sense that some impose it on Ire­land: And yet we find the same Reason in one Case, as in t'other, if the Argument from the King's Stile of Conquestor prevail. Nay, England may be said much more properly to be Conquer'd by William the First, than Ireland by Henry the Second: For we all know with what Violence and Opposition from Harrold, K. William obtain'd the Kingdom, after a Bloody Bat­tel nigh Hastings. Whereas Henry [Page 15] the Second receiv'd not the least Opposition in Ireland, all came in Peaceably, and had large Conces­sions made them of the like Laws and Liberties with the People of England, which they gladly Acce­pted, as we shall see hereafter. But I am fully satisfy'd, that neither King William the First, in his Ac­quisition of England, or Henry II. in his Acquest of Ireland, obtain'd the least Title to what some would give to Conquerours. Tho' for my own part, were they Conquerours in a sense never so strict, I should en­large their Prerogative very little or nothing thereby, as shall appear more fully in the Sequel of this Discourse.

Another Argument for Henry the Second's Hostile Conquest of Ireland is taken from the Opposition which the Natives of Ireland gave to the first Adventurers, Fitz-Stephens, Fitzgerald, and Earl Strongbow, and the Battles they sought in assisting Mac-Morogb Prince of Leinster, in the Recovery of his Principality.

[Page] 'Tis certain there were some Conflicts between them and the Irish, in which the Latter were constantly beaten; but certainly the Conquests obtain'd by those Adventurers, who came over only by the King's License and Permis­sion, and not at all by his particu­lar Command (as is manifest from the words of the Letters Patents of License recited by Giraldus Cambrensis, Hib. Expug. pag. 760. Edit. Francof. 1603. Angl. Norm. Hiber. Camd.) can never be call'd the Conquest of Henry the Second especially considering that Henry the Second himself does not appear to have any Design of Coming in­to Ireland, or Obtaining the Domi­nion thereof, when he gave to his Subjects of England this License of Assisting Mac-Morrogh. But I conceive rather the contrary ap­pears, by the Stipulations between Mac-Morrogh and the Adventurers, and especially between him and Strongbow, who was to succeed him in his Principality.

[Page 17] From what foregoes, I presume Suppressing Rebellions, whether a Conquest. it Appears that Ireland cannot pro­perly be said so to be Conquer'd by Henry the Second, as to give the Parliament of England any Jurisdi­ction over us; it will much more easily Appear, that the English Vi­ctories in any succeeding Rebellions in that Kingdom, give no Pretence to a Conquest: If every Suppression of a Rebellion may be call'd a Conquest, I know not what Coun­try will be excepted. The Rebel­lions in England have been frequent; in the Contests between the Houses of York and Lancaster, one side or other must needs be Rebellious. I am sure the Commotions in King Charles the First's time, are stiled so by most Historians. This Pre­tence therefore of Conquest from Rebellions, has so little Colour in it, that I shall not insist longer on it: I know Conquest is an hateful word to English Ears, and we have lately seen a Book Bishop of Salisbury's Pa­storal Letter. undergo a se­uere Censure, for offering to broach the Doctrine of Conquest in the Free Kingdom of England.

[Page 18] But, to take off all Pretence from What Title is obtain'd by Conquest. this Title by Conquest, I come in the third Place to enquire, What Title Conquest gives by the Law of Nature and Reason.

And in this particular I con­ceive, No Title gain'd by an Unjust Con­quest. that if the Aggressor or In­sulter invades a Nation Unjustly, he can never thereby have a Right over the Conquered: This I sup­pose will be readily granted by all men: If a Villain with a Pistol at my Brest, makes me convey my Estate to him, no one will say that this gives him any Right: And yet just such a Title as this has an Un­just Conquerour, who with a Sword at my Throat forces me into Sub­mission; that is, forces me to part with my Natural Estate, and Birth­right, of being govern'd only by Laws to which I give my Consent, and not by his Will, or the Will of any other.

Let us then suppose a Just In­vader, What Title by a Just Con­quest. one that has Right on his side to Attack a Nation in an Ho­stile manner; and that those who [Page 19] oppose him are in the Wrong: Let us then see what Power he gets, and over whom.

First, 'Tis plain he gets by his None over the Assisters in the Con­quest. Conquest no Power over those who Conquered with him; they that fought on his side, whether as pri­vate Soldiers or Commanders, can­not suffer by the Conquest, but must at least be as much Freemen, as they were before: If any lost their Freedom by the Norman Con­quest, (supposing King William the First had Right to Invade England) it was only the Saxons and Bri­tains, and not the Normans that Conquered with him. In like man­ner supposing Hen. II. had Right to Invade this Island, and that he had been opposed therein by the Inha­bitants, it was only the Antient Race of the Irish, that could suffer by this Subjugation; the English and Britains, that came over and Conquered with him, retain'd all the Freedoms and Immunities of Free-born Subjects; they nor their Descendants could not in reason lose these, for being Successful and Victorious; for so, the state of [Page 20] Conquerours and Conquered shall be equally Slavish. Now 'tis manifest that the great Body of the present People of Ireland, are the Progeny of the English and Britains, that from time to time have come over into this Kingdom; and there re­mains but a meer handful of the Antient Irish at this day; I may say, not one in a thousand: So that if I, or any body else, claim the like Freedoms with the Natural Born Subjects of England, as being Descended from them, it will be impossible to prove the contrary. I conclude therefore, That a Just Conquerour gets no Power, but on­ly over those who have Actually Assisted in that Unjust Force that is used against him.

And as those that joyned with None over the Non-Opposers the Conquerour in a Just Invasion, have lost no Right by the Con­quest; so neither have those of the Country who Oppos'd him not: This seems so reasonable at first Proposal, that it wants little Proof. All that gives Title in a Just Con­quest, is the Opposers using Brutal Force, and quitting the Law of [Page 21] Reason, and using the Law of Vio­lence; whereby the Conquerour is entitled to use him as a Beast; that is, Kill him, or Enslave him.

Secondly, Let us consider what Just Conquer­our intitled to the Lives of the Opposers. Power that is, which a Rightful Conquerour has over the Subdued Opposers: And this we shall find ex­tends little farther than over the Lives of the Conquer'd; I say, lit­tle farther than over their Lives; for how far it extends to their Estates, and that it extends not at all to Deprive their Posterity of the Freedoms and Immunities to which all Mankind have a Right, I shall shew presently. That the Just Conquerour has an Absolute Power over the Lives and Liberties of the Conquer'd, appears from hence, Because the Conquer'd, by putting themselves in a State of War by using an Unjust Force, have there­by forfeited their Lives. For quit­ting Reason, (which is the Rule between Man and Man) and using Force (which is the way of Beasts) they become liable to be destroy'd by him against whom they use Force, as any savage wild Beast [Page 22] that is Dangerous to his Being.

And this is the Case of Rebels in a settled Commonwealth, who for­feit their Lives on this Account. But as for forfeiting their Estates, it depends on the Municipal Laws of the Kingdom. But we are now Enquiring what the Consequents will be between two Contesting Nations.

Which brings me to Consider how far a Just Conquerour has Power over the Posterity and E­states of the Conquer'd.

As to the Posterity, they not ha­ving Just Conque­rour how far impower'd over the Po­sterity of the Opposers. Joyn'd or Assisted in the For­cible Opposition of the Conquerours Iust Arms, can lose no Benefit thereby. 'Tis unreasonable any Man should be punish'd but for his own fault. Man being a free A­gent, is only Answerable for his own Demerits; and as it would be highly Unjust to Hang up the Father for the Sons Offence, so the Converse is equally Unjust, that the Son shou'd suffer any In­convenience for the Fathers Crime. [Page 23] A Father hath not in himself a power over the Life or Liberty of his Child, so that no Act of his can possibly forfeit it. And tho we find in the Municipal Laws of par­ticular Kingdoms, that the Son loses the Fathers Estate for the Re­bellion or other Demerit of the Father, yet this is Consented and Agreed to, for the Publick Safety, and for deterring the Subjects from certain Enormous Crimes that would be highly prejudicial to the Commonwealth. And to such Con­stitutions the Subjects are bound to submit, having consented to them, tho' it may be unreasonable to put the like in Execution be­tween Nation and Nation in the State of Nature: For in Settled Go­vernments, Property in Estates is Regulated, Bounded and Determi­ned by the Laws of the Common­wealth, consented to by the Peo­ple, so that in these, 'tis no Inju­stice for the Son to lose his Patri­mony for his Fathers Rebellion or other Demerit.

[Page 24] If therefore the Posterity of the How far over their Estates. Conquer'd are not to suffer for the Unjust Opposition given to the Vi­ctor by their Ancestors, we shall find little place for any Power of the Conquerours over the E­states of the Subdued. The Fa­ther by his Miscarriages and Vio­lence can forfeit but his own Life, he involves not his Children in his Guilt or Destruction. His Goods, which Nature (that willeth the Preservation of all Mankind as far as possible) hath made to belong to his Children to sustain them, do still continue to belong to his Chil­dren. 'Tis true indeed, it usually happens that Damage attends Un­just Force; and as far as the Repair of this Damage requires it, so far the Rightful Conquerour may in­vade the Goods and Estate of the Conquer'd; but when this Damage is made up, his Title to the Goods ceases, and the Residue belongs to the Wife and Children of the Sub­dued.

It may seem a strange Doctrine, that any one should have a Power over the Life of another Man, and [Page 25] not over his Estate; but this we find every day, for tho' I may Kill a Thief that sets on me in the High-way, yet I may not take away his Money; for 'tis the Brutal Force the Aggressor has used, that gives his Adversary a Right to take away his Life, as a noxious Creature. But 'tis only Damage sustain'd, that gives Title to another Mans Goods.

It must be confess'd that the Practise of Conquerors o­therwise. Practice of the World is other­wise, and we commonly see the Conqueror (whether Iust or Unjust) by the Force he has over the Con­quer'd, compels them with a Sword at their Brest to stoop to his Conditions, and submit to such a Government as he pleases to Af­ford them. But we Enquire not now, what is the Practice, but what Right there is to do so. If it be said the Conquer'd sub­mit by their own Consent: Then this allows Consent necessary to give the Conquerour a Title to Rule over them. But then we may En­quire whether Promises Extorted by Force without Right, can be thought Consent, and how far they [Page 26] are Obligatory; And I humbly con­ceive they Bind not at all. He that forces my Horse from me, ought presently to Restore him, and I have still a Right to retake him: So he that has forced a Promise from me, ought presently to Restore it, that is, quit me of the Obligation of it, or I may chuse whether I will per­form it or not: For the Law of Na­ture obliges us only by the Rules she prescribes, and therefore cannot oblige me by the Violation of her Rules; such is the Extorting any thing from me by Force.

From what has been said, I pre­sume it pretty clearly appears that an Unjust Conquest gives no Title at all; That a Iust Conquest gives Power only over the Lives and Li­berties of the Actual Opposers, but not over their Posterity or Estates, otherwise than as before is mentio­ned; and not at all over those that did not Concur in the Opposition.

They that desire a more full Dis­quisition of this Matter, may find it at large in an Incomparable Trea­tise concerning the True Original, [Page 27] Extent and End of Civil Govern­ment, Chap. 16. This Discourse is said to be written by my Excellent Friend, IOHN LOCKE, Esq Whe­ther it be so or not, I know not; This I am sure, whoever is the Author, the Greatest Genius in Christendom need not disown it.

But granting that all we have said in this Matter is Wrong, and granting that a Conquerour, whe­ther Iust or Unjust, obtains an Ab­solute Arbitrary Dominion over the Persons, Estates, Lives, Liberties and Fortunes of all those whom he finds in the Nation, their Wives, Posterity, &c. so as to make perpe­tual Slaves of them and their Ge­nerations to come; Let us next Enquire whether Concessions grant­ed Concessions granted by a Conquerour, whether Obli­gatory. by such a Victorious Hero, do not bound the Exorbitancy of his Power, and whether he be not Obliged strictly to Observe these Grants.

And here I believe no Man of Common Sense or Justice, will Deny it; None that has ever Consider'd the Law of Nature [Page 28] and Nations, can possibly he­sitate on this matter; the very Proposing it, strikes the Sense and Common Notions of all Men so forcibly, that it needs no farther proof. I shall therefore insist no longer on it, but hasten to consider how far this is the Case of Ireland: And that brings me natu­rally to the fourth Particular pro­pos'd, vizt. To shew by Prece­dents, Records, and History, what Concessions and Grants have been made from time to time to the Peo­ple of Ireland, and by what steps the Laws of England came to be introduced into this Kingdom.

We are told by Matth. Paris, Hi­storiographer What Conces­sions have been made from the Crown of England to the Kingdom of Ireland. to Hen. III. that Henry the Second, a little before he left Ireland, in a Publick Assembly and Council of the Irish at Lismore, did cause the Irish to Receive, and swear to be Govern'd by the Laws of England: Rex Henricus (saith he) By Henry II. antequam ex Hibernia Rediret apud Lismore Concilium Congregavit ubi Leges Angliae sunt ab omnibus gratan­ter receptae, & Iuratoriâ cautione prestitâ Confirmatae, Vid. Matth. Pa­ris, ad An. 1172. Vit. H. 2.

[Page 29] And not only thus, but if we Irish Modus Tenendi Parli­amentum. may give Credit to Sir Edward Cook, in the 4th Instit. Cap. 1. and 76. and to the Inscription to the Irish Modus Tenendi Parliamentum, it will clearly Appear, that Henry the Second did not only settle the the Laws of England in Ireland, and the Jurisdiction Eclesiastical there, by the Voluntary Acceptance and Allowance of the Nobility and Clergy, but did likewise Allow them the Freedom of Holding of Parliaments in Ireland, as a sepa­rate and distinct Kingdom from England; and did then send them a Modus to Direct them how to Hold their Parliaments there. The Title of which Modus runs thus: ‘Henricus Rex Angliae Con­questor & Dominus Hiber­niae, &c. Mittit hanc formam Archiepiscopis, Episcopis, Abbatibus, Prioribus, Co­mitibus, Baronibus, Iusti­ciariis, Vicecomitibus, Ma­joribus, Praepositis, Ministris & omnibus. Fidelibus suis Terrae Hiberniae Tenendi Parliamentum. [Page 30] In primis Summonitio Parli­amenti praecedere debet per Quadraginta Dies.’

And so forth.

This Modus is said to have been sent into Ireland by Hen. II. for a Direction to Hold their Parliaments there. And the sense of it agrees for the most part with the Modus Tenendi Parl. in England, said to have been Allowed by William the Conquerour; when he obtain'd that Kingdom; where 'tis alter'd, 'tis only to fit it the better for the Kingdom of Ireland.

I know very well the Antiquity of this Modus, so said to be Transmit­ted for Ireland by Hen. II. is questi­on'd by some Learned Antiquaries, particularly by Mr. Selden Tit. Hon. Par. 2. C. 5. Sect. 26. Edit. Lond. An. 1672 and Against Cook's 4th In­stit. C. 76. Mr. Pryn, who deny also the English Modus as well as this. But on the other hand, my Lord Chief Justice Cook, in the 4th Instit. pag. 12. and 349. does strenuously As­sert them both. And the late Re­verend and Learned Dr. Dopping Bi­shop [Page 31] of Meath, has Published the Irish Modus, with a Vindication of its Antiquity and Authority in the Preface.

There seems to me but two Ob­jections of any Moment raised by Mr. Pryn against these Modi. The One relates both to the English and Irish Modus; the other chiefly strikes at the Irish. He says the Name Parliament, so often found in these Modi, was not a name for the great Council of England known so early as these Modi Pretend to. I con­fess I am not prepared to Disprove this Antiquary in this Particular: But to me it seems reasonable e­nough to Imagine that the Name Parliament, came in with William the Conqueror: 'Tis a Word per­fectly French, and I see no reason to doubt it's Coming in with the Normans. The other Objection affects our Irish Modus, for he tells us, That Sheriffs were not esta­blish'd in Ireland in Henry II's. time, when this Modus was pretended to be sent hither, yet we find the Word Vicecomes therein. To this I can only Answer, That Hen. II. [Page 32] intending to Establish in Ireland the English form of Government, as the first, and Chief step thereto, he sent them Directions for Holding of Parliaments, Designing after­wards by degrees and in due time to settle the other Constitutions agreable to the Model of England. If therefore England had then She­riffs, we need not wonder to find them named in the Irish Modus, tho they were not as yet establish'd a­mongst us, for they were designed to be appointed soon after, and be­fore the Modus could be put regu­larly in execution; and according­ly we find them establish'd in some Counties of Ireland in King Iohns Time.

This Irish Modus is said to have been in the Custody of Sir Christo­pher Preston of Clane in Ireland, An. 6. Hen. 4. and by Sir Iohn Talboi Lord Lieutenant of Ireland, under King Hen. 4. It was Exemplified by Inspeximus under the great Seal of Ireland, and the Exemplification was sometimes in the Hands of Mr. Hackwel of Lincolns Inn, and by him was Communicated to Mr. Selden. The Tenor of which Exemplifica­tion runs thus.

and so as before, ‘Et omnibus Fideli­bus suis Terrae Hiberniae Tenendi Parliamentum Im­primis Summonitio, &c.’ and [Page 34] then follows the Modus, agreeable in most things with that of England, only fitted to Ireland. Then the Exem­plification concludes:

Now we can hardly think it cre­dible, (says the Bishop of Meath) that an Exemplification could have been made so solemnly of it by King Henry the Fourth, and that it should refer to a Modus transmitted into Ireland by King Henry II. and Affirm that it was produced before the Lord Lieutenant and Council at Trym, if no such thing had been Done: This were to call in que­stion the Truth of all former Re­cords [Page 35] and Transactions, and make the Exemplification contain an Egregious Falshood in the body of it.

The Reverend Bishop of Meath, in his fore-cited Preface does be­lieve that he had obtain'd the ve­ry Original Record, said by my Lord Cook to have been in the Hands of Sir Christopher Preston: It came to that Learned Prelates Hands amongst other Papers and Manuscripts of Sir William Dom­viles, late Attorney General in this Kingdom, who in his Life-time, upon an occasional Discourse with the Bishop concerning It, told him that this Record was bestow'd on him (Sir W. Domvile) by Sir Iames Cuffe, late Deputy Vice-Treasurer of Ireland, that Sir Iames found it among the Papers of Sir Francis Aungier, Master of the Rolls in this Kingdom; and the present Earl of Longford (Grandson to the said Sir Francis Aungier) told the Bishop, that his said Grandfather had it out of the Treasury of Wa­terford.

[Page 36] Whilst I write this, I have this very Record now before me, from the Hands of the said Bishop of Meath's Son, my Nephew, Samuel Dopping; and I must confess it has a Venerable Antient Appearance, but whether it be the True Origi­nal Record, I leave on the Argu­ments produced for its Credit by the said Bishop.

This I am sure of, that whether Parliaments very early in Ireland. this be the very Record Transmit­ted hither by King Henry the Se­cond, or not; yet 'tis most certain from the Unanimous Concessions of all the fore-mentioned Antiqua­ries, Cook, Selden, Pryn, &c. That we have had Parliaments in Ireland very soon after the Invasion of Henry II. For Pryn confesses that Against the 4th Inst. c. 76. p. 249. King Hen. II. after his Con­quest of Ireland, and the General Voluntary Submission, Homages, and Fealties of most of the Irish Kings, Prelates, Nobles, Cities and People, to him, as to their Sove­raign Lord and King, Anno 1170, (it should be 1172.) held therein a General Council of the Clergy [Page 37] at Cashal, wherein he Rectify'd many Abuses in the Church, and Establish'd sundry Eclesiastical Laws, agreeable to those in the Church of England; Ecclesiae illius statum ad Anglicanae Ecclesiae for­mam Redigere Modis omnibus elabo­rando; To which the Irish Clergy promis'd Conformity, and to ob­serve them for time to come, as Togograph Hibern. l 3. c. 18 Hib. Expug. l. 11. c. 33, 34. Giraldus Cambrensis, who was then in Ireland, and other Hoveden Annal pars­post. p. 302. Brampton Chr. Col. 1071. Knighton de Even. Angl. l. c. c. 10 col. 2394, 2395. Pol. Virg. Hist. Angl. l. 13. Radul. de Di­ceto. Walsingbam, &c. Histo­ans, relate: Et ut in singulis Obser­vatio similis Regnum Colligaret utrumque (that is England and Ire­land) passim omnes unanimi voluntate communi Assensu, Pari desiderio Re­gis imperio se subjiciunt, omnibus igitur hoc modo Consummatis, in Con­cilio habito apud Lismore Leges An­gliae ab omnibus sunt gratantur recep­tae, & juratoriâ cautione praestitâ Con­firmatae, says Math. Paris.

Can any Concession in the Original Com­pact for Ire­land. World be more plain and free than this? We have heard of late much Talk in England of an Original Compact between the King and Peo­ple of England; I am sure 'tis not possible to shew a more fair Origi­nal [Page 38] Compact between a King and People, than this between Henry the Second, and the People of Ire­land, That they should Enjoy the like Liberties and Immunities, and be Govern'd by the same Mild Laws, both Civil and Ecclesiastical, as the Peo­ple of England.

From all which, It is manifest that there were no Laws Imposed on the People of Ireland, by any Authority of the Parliament of England; nor any Laws introdu­ced into that Kingdom by Henry the Second, but by the Consent and Allowance of the People of Ire­land: For both the Civil and Ec­clesiastical State were settled there Regiae sublimitatis Authoritate, sole­ly by the Kings Authority, and their own good Wills, as the Irist Statute, 11 Eliz. C. 1. expresses it. And not only the Laws of England, but the manner of Holding Parlia­ments in Ireland to make Laws o [...] their own (which is the Foundatio [...] and Bulwark of the Peoples Liber­ties and Properties) was Directe [...] and Established there by Henry the Second, as if he were Resolve [...] [Page 39] that no other Person or Persons should be the Founders of the Go­vernment of Ireland, but himself and the Consent of the People, who submitted themselves to him a­gainst all Persons whatsoever.

Let us now see by what farther Degrees the Government of Ireland grew up Conformable to that of England.

About the Twenty-third year of Henry the Second, (which was King Iohn made King of Ireland. within Five years after his Return from Ireland) he created his younger Son Iohn, King of Ireland, at a Parliament held at Oxford. Soon after King Iohn being then a­bout Twelve Years of Age, came into Ireland, from Milford to Water­ford, as his Father had formerly done. The Irish Nobility and Gentry immediately repaired to him; but being Received by him and his Retinue with some Scorn and Derision, by reason of their long rude Beards, quas more Patrio grandes habebant & prolixas, (says Giraldus Cambrensis, Hib. Expug. Cap. 35.) they took such Offence [Page 40] thereat, that they departed in much Discontent; which was the occasion of the young Kings stay­ing so short a time in Ireland, as he did this his first time of being here.

And here, before we proceed any farther, we shall observe, That By this Ireland made an Ab­solute separate Kingdom. by this Donation of the Kingdom of Ireland to King Iohn, Ireland was most eminently set apart a­gain, as a Separate and Distinct Kingdom by it self from the King­dom of England; and did so con­tinue, until the Kingdom of Eng­land Descended and came unto King Iohn, after the Death of his Brother Richard the First, King of England, which was about Twen­ty two years after his being made King of Ireland; during which space of Twenty two years, both whilst his Father Henry the Second, and his Brother Richard the First, were living and Reigning, King Iohn made divers Grants and Char­ters to his Subjects of Ireland, which are yet in being in this Kingdom; wherein he stiles him­self Dominus Hiberniae, (the con­stant Stile till Henry the Eighth's [Page 41] time) and in others, Dominus Hi­berniae & Comes Meritoniae. By which Charters both the City of Dublin, and divers other Corpora­tions enjoy many Priviledges and Franchises to this day. But after the said Grant of the Kingdom of Ireland to King Iohn, neither his Father Henry II. nor his Brother King Richard I. Kings of England, ever stiled themselves, during their Lives, King or Lord of Ireland; for the Dominion and Regality of Ireland was wholly and separately vested in K. Iohn, being absolutely Granted unto him without any Re­servation. And he being Created King in the Parliament at Oxford, under the Stile and Title of Lord of Ireland, Enjoy'd all manner of Kingly Iurisdiction, Preheminence, and Authority Royal, belonging un­to the Imperial State and Majesty of a King, as are the Express words of the Irish Statute, 33 Hen. VIII. c. 1. by which Statute the Stile of Do­minus was changed to that of Rex Hiberniae.

Let us then suppose that Rich­ard the First, King Iohn's Elder [Page 42] Brother, had not died without Is­sue, but that his Progeny had sat on the Throne of England, in a Continued Succession to this Day: Let us suppose likewise the same of King Iohn's Progeny, in rela­tion to the Throne of Ireland; where then had been the Subordi­nation of Ireland to the Parliament, or even to the King of England? Certainly no such thing could have been then pretended: Therefore if any such Subordination there be, it must arise from something that fol­lowed after the Descent of England, to King Iohn; for by that Descent England might as properly be Sub­ordinate to Ireland, as the converse; Ireland being vested in the Royal Person of King Iohn, Two and Twenty years before his Acces­sion to the Crown of England, and being a more Ancient King­dom than the Kingdom of England. As the English Orators in the Council of Constance, An. 1417 Seldens Tit. Hon. Par. 1. C. 8 Sect. 5. Usher Archbi­bishop of Ar­magh, of the Religion of the Antient Irish, Cap. 11. confess'd and alledged, as an Argument in the Contest between Henry the Fifth's Legates, and those of Charles the Sixth King of France, for Precedence: Satis Constat (say [Page 43] they) Act. Concil. Constant. Ses. 28. MS. in Bib. Reg. not in the Printed Acts. secundum Albertum Mag­num & Bartholomeum de Proprieta­tibus Rerum, quod toto Mundo in tres partes Diviso, scilicet in Europam, Asiam & Africam (for America was not then Discovered) Europa in quatuor Dividitur Regna scilicet, Primum Romanum, Secundum Con­stantinopolitanum, Tertium Regnum Hiberniae (quod jam translatum est in Anglos) & Quartum Regnum His­paniae. Ex quo patet, quod Rex Angliae & Regnum suum sunt de Eminentiori­bus Antiquioribus Regibus & Regnis totius Europae. The Antiquity and Precedence of the King of England, was allo'wd him wholly on the Ac­count of his Kingdom of Ireland.

Perhaps it will be said, That Ireland in what sense Annex'd to England. this Subordination of the Kingdom of Ireland, to the Kingdom of Eng­land, proceeds from Ireland's being Annex'd to, and as it were united with the Imperial Crown of Eng­land, by several Acts of Parliament both in England and Ireland, since King Iohns time. But how farr this Operates, I shall Enquire more fully hereafter; I shall only at pre­sent Observe, that I conceive little [Page 44] more is Effected by these Statutes Than that Ireland shall not be Ali­en'd 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, and the Sub­jects of Ireland are oblig'd to Obey him as their Liege Lord.

To proceed therefore. After both Crowns were united, on the King Iohn comes a second time into Ire­land. The People submit to him Death of Richard the First without Issue, in the Royal Person of King Iohn: He, about the Twelfth Year of his Reign of England, went a­gain into Ireland, viz. the Twenty Eight day of Iune, 1210. and Math. Paris tells us, pag. 220. Cum Venisset ad Dublinensem Civitatem Occurrerunt ei ibidem plus quam 20 Reguli illius Regionis qui omnes Ti­more maximo preterriti homagium ei & Fidelitatem fecerunt. Fecit quoque Rex ibidem, Construere Leges & Consuetudines Anglicanas, ponens Vicecomites aliosque Ministros, qui populum Regni illius juxta Leges Anglicanas Judicarent.

[Page 45] His Son King Henry the Third Concess [...] ▪ from Hen. III. came to the Crown the Nineteenth of October 1216. and in Novem­ber following he Granted to Ireland a Magna Charta, Dated at Bristol 12 November, the First Year of his Reign. 'Tis Prefaced, that for the Honour of God, and Advancement of Holy Church, by the Advice of his Council of England, (whose names are particularly recited) He makes the following Grant to Ireland; And then goes on Exactly Agreeable to the Magna Charta which he granted to England; only in ours we have Civitas Dublin, & Avenliffee, instead of Civitas London, and Thamesis with other Alterations of the like kind where Needful. But ours is Eight years older than that which he grant­ed to England, it not being till the Ninth Year of his Reign, and ours is the First Year. This Magna Char­ta of Ireland Concludes thus, Quia vero sigillum nondum Habuimus pre­sentem Cartam Sigillis Venerabilis Patris nostri Domini Gualt. Apost. Sedis Legati & Willelmi Mar eschalli Comitis Pembrooke Rectoris nostri & Regni nostri secimus Sigillari. Testi­bus omnibus praenominatis & alijs Multis D [...]t per Manus Praedictorum [Page 46] Domini Legati & Willelmi Marescal­li. Apud Bristol Duodecimo die No­vembr. Regni nostri Anno Primo. An Antient Coppy of this Magna Charta of Ireland is to be found in the Red Book of the Exchequer Dublin.

In February following in the First Year like wise of his Reign, by Ad­vice of all his Faithful Counsellors in England, to gratify the Irish (says Pryn against the 4th Inst. c. 76. p. 250. 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.

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, Record out of Mr. Petyt of the Antiquity of Parliaments in Ireland. 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, [Page 49] 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.

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 [Page 52] one knows how fatal the Conse­quents of that may be.

To return therefore where we Farther Con­cessions from Hen. III 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, (b) Against Cook's 4th In­stit. p. 252. in these words:

‘Rex Dilecto & Fideli suo Claus. 12 H. III in 8 de Legibus & Consuetu­dinibus Obser­vandis in Hi­bern. Richardo de Burgo Justie' suo Hibern. Salutem. Man­damus vobis firmiter prae­cipientes [Page 53] 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.’

[Page 54] By what foregoes, I presume it plainly appears, that by three se­veral Establishments under the three first Kings of Ireland of the Norman Race, the Laws and Liber­ties of the People of England, were granted to the People of Ireland. And that neither of these three Kings Established those Laws in Ireland by any Power of the Parliament of England, but by the free Consent, Allowance and Acceptance of the People of Ireland.

Hen. II. first introduced the Laws Recapitula tion. of England into Ireland, in a Pub­lick Assembly of the Irish at Lismore, and Allowed them the Freedom of Parliaments to be held in Ire­land, as they were held in England.

King John at the Request, and by the Consent of the Irish, did ap­point the Laws of England to be of Force in Ireland; and tho' he did not this till the Twelfth year of his Reign of England, yet he did it not as King of England, but as Lord of Ireland: For the Crown of England came to him by Descent [Page 55] from his Brother Richard, who had no Regal Power in Ireland; and what his Brother had not, could not descend to him.

Henry the Third in the first year of his Reign gave Ireland a Magna Charta; and in the Twelfth year of his Reign did provide, That all the Laws of England should be observ'd in Ireland; and that the Charter granted to the Irish by his Father King Iohn under his Seal, when he was in that Kingdom, should be kept inviolably.

And from the Days of these Three Kings, have England and Ireland been both Govern'd by the like Forms of Government under one and the same Supreme Head, the King of England; yet so, as both Kingdoms remain'd Separate and Distinct in their several Juris­dictions under that One Head, as are the Kingdoms of England and Scotland at this day, without any Subordination of the One to the Other.

It were endless to mention all [Page 56] Records and Precedents that might be quoted for the Establishment of the Laws of England in Ireland; I shall therefore enter no farther into that Matter, but therein refer to Lord Chief Justice Cook, Fourth In­stit. Pryn, Against the 4th Instit. Reyly, Placita Parliamenta­ria. English Laws Established in Ireland. &c.

If now we Enquire, What were those Laws of England that became thus Established in Ireland? Surely we must first reckon the Great Law of Parliaments, which England so Law of Parli­ament. justly Challenges, and all Mankind have a Right to. By the Law of Parliament, I mean that Law where by all Laws receive their Sanction, The Free Debates and Consent of the People, by Themselves, or their Chosen Representatives. That this was a main Branch of the English Law Established in this Kingdom, and the very Foundation of our Future Legislature, appears manifest from Parliaments being so early con­vok'd in Ireland, as the fore-men­tion'd Precedents express.

Mr. Pryn acknowledges one in Hen. II's time, (pag. 259. against the 4th Instit.) but makes a very false [Page 57] Conclusion, that there appears no Footsteps of a Parliament after­wards, till the third year of Ed­ward the Second, because the Acts of that Parliament are the first that are Printed in our Irish Statute-Book: For so we may argue the Parliaments of England to be of later Date than pretended, when we find the first Printed Acts in Keeble to be no older than the 9th of Hen. III. Whereas 'tis most cer­tain, that Parliaments have been held in England some Ages before that.

After this Great Law of Parlia­ments, Common Law. we may reckon the Common Law of England, whether it relates to Regulating and Setling of Pro­perty, and Estates in Goods or Land, or to the Iudiciary and Executive parts of the Law, and the Mini­sters and Process thereof, or to Cri­minal Cases. These surely were all Establish'd in this Country, by the three first Kings of Ireland of the Norman Race.

Let us now consider the state of Statute Law. the Statute Laws of England under [Page 58] these three Kings, and their Pre­decessors: For by the Irish Volun­tary Submission to, and Accep­tance of the Laws and Govern­ment of England, we must repute them to have submitted themselves to these likewise; till a Regular Legislature was Establish'd amongst them, in pursuance of that Submis­mission and Voluntary Acceptance.

And here we shall find, that in Statute-Law of England from the Nor­man Conquest to Hen. III. those Times, viz. from the Nor­man Conquest to Henry the Third's time inclusive, the Statute-Laws of England were very few and slender. 'Tis true, that before the 12th of Hen. III. we find amongst the Eng­lish Historians frequent mention of the Laws of Edward the Confessor, William the Conquerour, Hen. I. Hen. II. King Iohn, and Hen. III. All which are only Charters, or several Grants of Liberties from the King; which nevertheless had the force of Acts of Parliament, and laid as great Obligations both upon Prince and People, as Acts of Parliament do at this day: Whereof we may read several Proofs in the Princes Case, Cook's 8th Report. But these were [Page 59] only so many Confirmations of each other, and all of them Sanctions of the Common Laws and Liberties of the People of England, ab Antiquo Usitatae & comprohatae per totam ter­ram & in quibus ipsi & eorum Patres nati & nutriti sunt, as the words of the Manuscript Chronicle of Litch­field express it.

The Laws of Edward the Con­fessor, Law of Ed­ward the Confessor. held in so great Veneration in Antient Times, & per universum Regnum corroboratae & confirmatae, prius inventae & Constitutae fuerunt Tempore Regis Edgari Avi sui. Ve­rum tamen post mortem ipsius Regis Edgari, usque ad Coronationem San­cti Regis Edwardi (which was 67 years) praedictae Leges Sopitae sunt & penitus intermissae. Sed postquam Rex Edwardus in Regno sublimatus fuit Consilio Baronum Angliae Legem illam sopitam Excitavit, Excitam Reparavit, Reparatam Decoravit, De­coratam Confirmavit; & confirmatae vocantur Lex Sancti Regis Edwar­di, non quod ipse primus eam ad in­venisset; sed quod Reparavit, Re­stituitque, Selden [...] & speci [...] ▪ ad eadmerum, pag 17 [...] as the said Litchfield Chronicle has it. These Laws [Page 60] of Edward the Confessor were tran­scribed by Ingulphus Abbot of Croy land under William the Conqueror and are annexed to his History.

The Laws of William the Con­queror are but a Confirmation of the Of Wil. Conq. Laws of Edward the Confessor, with some small alterations, as the very Letter of those Laws themselves express it. Leges W. 1. Cap. 63. apud Selden in not [...] [...]d eadmerum p. 192. Hoc quoque praecipi­mus ut omnes habeant & teneant Le­ges Edwardi Regis in omnibus Rebus adauctis his quas constituimus ad Uti­litatem Anglorum.

The Laws of Henry I. which are in the Red Book of the Exchequer, Of Hen. I. in the custody of the Kings Remem­brancer in England, are but a sum­mary confirmation both of the Laws of Edward the Confessor and William the First, as the Charter it self expresses it, Vid. Selden ut supra. Lagam Regis Edwardi vobis Reddo cum illis emen­dationibus quibus Pater meus emen­davit Consilio Baronum suorum.

The Laws of Henry II. called Of Hen II. Constitutiones Clarendoniae, and the Assize of Clarendon in the 2d part of [Page 61] Cooks Inst. p. 6. are all but confir­mations and vindications of the King's just Prerogative against the Usurpations of the Pope and Cler­gy: As we find at large in Chron. Gervasii. Doroborn p. 1387. Edit. Lond. an. 1652.

The Laws of King John, called Of K. John. The Great Charter of King John, granted in the 17th Year of his Reign, upon the Agreement made between him and his Barons at Running-Mead between Staines and Windsor, was but a Confirmation of the Laws of Edward the Confessor and Henry the First, as Mat. Paris ad an. 1215. pag. 253. &c. Mat. Paris relates it. Anno Regis Johan­nis 17. venientes ad Regem magnates petierunt quasdam Libertates & Le­ges Regis Edwardi cum aliis liberta­tibus sibi & Regno Angliae & Eccle­siae Anglicanae concessis confirmari pro­ut in Charta Regis Hen I. ascriptae continentur. The same Historian gives us also at large both Charta Libertatum, and Charta de Foresta, which are not extant in the Rolls of those times, nor to be found in any till the 28th of Edward I. and that but by inspeximus.

[Page 62] The Laws of Henry III. contain'd in Magna Charta and Charta de For­resta, Of Hen. III. both which are called Mag­nae Chartae Libertatis Angliae, and were establish'd about the 9th Year of Henry III. are for the most part but declaratory of the common mu­nicipal Laws of England, and that too no new declaration thereof; for King Iohn in the 17th year of his Reign had granted the like before, which was also call'd Magna Charta. Cook's Pref. to the 2d Inst. And by the English Statute 25 Ed. 1. c. 1. it is Enacted, That the Great Charter, and the Charter of the Forrest be taken as the Com­mon Law of England.

By what foregoes, I conceive, it is very clear, That all the Char­ters and Grants of Liberties from Edward the Confessor's time down to the 9th of Henry the Third were but Confirmations one of another, and all of them Declarations, and Confirmations of the Common Law of England. And by the several E­stablishments, which we have for­merly mention'd, of the Laws of England to be of force in Ireland: [Page 63] First, in the 13th of Henry II. Se­condly in the 12th of King Iohn. Thirdly, in the 12th of Henry III. All those Laws and Customs of England, which by those several Charters were Declared and Con­firmed to be the Laws of England, were establish'd to be of force in Ireland. And thus Ireland came to be govern'd by one and the same Common Law with England; and those Laws continue as part of the municipal and fundamental Laws of both Kingdoms to this day.

It now remains that we enquire, Engl. Statutes since the 9th. Hen. III. intro­duced in Ire­land. How the Statute Laws and Acts of Parliament made in England since the 9th of Henry the Third came to be of force in Ireland; And whe­ther all or any of them, and which, are in force here, and when and how they came to be so.

And the first Precedent that oc­curs in our Books, of Acts of Par­liament in Ireland particularly men­tioning and confirming special Acts of Parliament in England, is found in a Marginal Note of Sir Richard Bolton's formerly Lord Chief Baron [Page 64] of the Exchequer in Ireland, affixed in his Edition of the Irish Statutes to Stat. 10 Hen. 7. Cap. 22. to this purport, That in 13 Edw. II. by Par­liament in this Realm of Ireland the Statutes of Merton, made the 20th Statutes of Merton. Marlebr. Westm. Gloucest. of Hen. II. and the Statutes of Marl­bridge, made the 52 of Henry the Third; The Statute of Westminster the First, made the 3d of Edward the First; The Statute of Gloucester, made the 6th of Edward the First▪ And the Statute of Westminster the Second, made the 13th of Edward the First, were all confirm'd in this Kingdom, and all other Statutes which were of force in England, were referr'd to be Examin'd in the next Parliament; and so many as were then Allow'd and Publish'd, to stand likewise for Laws in this King­dom. Vid. Lib. Rubr. Scaccar. Dubl. And in the 10th of Henry the Fourth, it was Enacted in this Kingdom of Ireland, That the Sta­tutes made in England should not be of force in this Kingdom, unless they were Allow'd and Publish'd in this Kingdom by Parliament. And the like Statute was made again in the 29th of Henry the Sixth. These Statutes are not to be found in the [Page 65] Rolls, nor any Parliament Roll of that time; but he (Sir Richard Bolton) had seen the same Exempli­sy'd under the Great Seal, and the Exemplification remaineth in the Treasury of the City of Waterford. Thus far the Note. If we consi­der the frequent Troubles and Di­stractions in Ireland, we shall not wonder that these, and many other Rolls and Records, have been lost in this Kingdom: For from the third year of Edward the Second, which was Anno 1310. through the whole Reigns of Edward III. Richard II. Henry IV. and Henry V. and so to the Seventh year of Hen­ry the Sixth, Anno 1428. which is about 118 years, there are not any Parliament Rolls to be found, Annals of Ireland, at the End of Cam­den's Britan. Edit. 1637. page 196, 197, &c. yet certain it is, that divers Parlia­ments were held in Ireland in those times. Ibid. p. 160. Pryn against the 4th Instit. Chap, 76. The same may be said from Henry the Second's coming into Ireland, Anno 1172. to the third year of Edward the Second, Anno 1310. about 138 years.

Perhaps it may be said, That if here were such Statutes of Ireland as the said Acts of the 10th of [Page 66] Henry the Fourth, and the 29th of Henry the Sixth; As they shew, that the Parliaments of Ireland did think that English Acts of Parlia­ment could not bind Ireland; yet they shew likewise, that even in those days the Parliaments of Eng­land did claim this Superiority; or else, to what purpose were the said Acts made, unless in denial of that Claim?

All which I hope may be readi­ly granted without any prejudice to the Right of the Irish Parlia­ments: There is nothing so com­mon, as to have one Man claim another Mans Right: And if bare Pretence will give a Title, no Man is secure: And it will be yet worse, if when another so Pretends, and I insist on my Right, my Just Claim shall be turn'd to my Prejudice, and to the Disparagement of my Title.

We know very well that many of the Judges of our Four Courts have been from time to time sent us out of England; and some of them may easily be supposed to [Page 67] come over hither Prepossess'd with an Opinion of our Parliaments be­ing subordinate to that of England. Or at least, some of them may be Scrupulous, and desirous of full Se­curity in this Point; and on their Account, and for their Satisfaction, such Acts as aforesaid, may be de­vised, and Enacted in Ireland. But then, God forbid, that these Acts should afterwards be laid hold of to a clear other intent than what they were framed for; and instead of Declaring and Securing our Rights, should give an Handle of Contest, by shewing that our Rights have been question'd of Antient Time.

In conclusion of all, If this Su­periority of the Parliament of Eng­land have been Doubted a great while ago, so it has been as great a while ago Strenuously Opposed, and Absolutely Denied by the Par­liaments of Ireland. And by the way, I shall take Notice, That from whencesoever this Antient Pretence of Ireland's Subordination proceeded in those days, it did not arise from the Parliament of Eng­land [Page 68] it self: For 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, as appears by what foregoes.

Afterwards by a Statute made in Ireland the 18th of Hen. VI. Cap. 1. All the Statutes made in England against the Extortions and Oppressi­ons of Purveyors, are Enacted to be holden and kept in all Points, and put in Execution in this Land of Ireland.

And in the 32d year of Henry the Sixth, Cap. 1. by a Parliament in Ireland, 'tis Enacted, That all the Statutes made against Provisors to the Court of Rome, as well in Eng­land as in Ireland, be had and kept in force.

After this, in a Parliament at Drogheda the 8th of Edward IV. cap. 1. it was Ratify'd, That the English Statute against Rape, made the 6th of Richard the Second, [Page 69] should be of Force in Ireland from the 6th day of March last past: And that from henceforth the said Act, and all other Statutes and Acts made by Authority of Parliament within the Realm of England, be Ratify'd and Confirm'd, and Adjudg­ed by the Authority of this Parlia­ment in their Force and Strength, from the said sixth day of March. We shall hereafter have occasion of taking farther Notice of this Statute upon another Account.

Lastly, In a Parliament held at All English Statutes before the 10th of Hen. VII. in force in Ire­land. Drogheda the 10th of Henry the Seventh, cap. 22. it is Enacted, That all Statutes late (that is, as the Cook's 4th Instit. Cap. 76. P. 351. Learned in the Laws expound it, before that time) made in England, concerning the Common and Publique Weal of the same, from henceforth be Deem'd effectual in Law, and be Ac­cepted, Used and Executed within this Land of Ireland in all Points, &c.

Vid. Irish Stat. And in the 14th year of the same Kings Reign, in a Parliament held at Tristle-Dermot, it was En­acted, That all Acts of Parliament [Page 70] made in England for Punishing Cu­stomers, Controulers, and Searchers, for their Misdemeanors; or for Punishment of Merchants or Factors, be of Force here in Ireland, Provi­ded they be first Proclaim'd at Dub­lin, Drogheda, and other Market-Towns.

Thus we see by what Steps and Degrees all the Statutes which were made in England from the time of Magna Charta, to the 10th of Henry the Seventh, which did concern the Common Publick Weal, were Re­ceiv'd, Confirm'd, Allow'd, and Authoriz'd to be of Force in Ire­land; all which was done by Assent of the Lords Spiritual and Tempo­ral, and the Commons in the Parlia­ment of Ireland Assembled, and no Otherwise.

We shall next Enquire, Whether English Sta­tutes Declara­tory of the Common Law in force in Ireland. there are not other Acts of the English Parliament, both before and since the 10th of Henry the Seventh, which were and are of Force in Ire­land, tho' not Allow'd of by Par­liament in this Kingdom. And we shall find, That by the Opini­on [Page 71] on of our best Lawyers, there are divers such; but then they are only such as are Declaratory of the An­tient Common Law of England, and not introductive of any New Law: For these become of Force by the first General Establishment of the Common Laws of England in this Kingdom, under Henry the Second, King Iohn, and Henry the Third; and need no particular Act of Ire­land for their Sanction.

As to those English Statutes English Acts introductive of a New Law, not of force in Ireland. since the 10th of Henry the Se­venth, that are Introductive of a New Law, it was never made a Question whether they should Bind Ireland, without being Allow'd in Parliament here; till of very late years this Doubt began to be mo­ved; and how it has been Carried on and Promoted, shall Appear more fully hereafter.

I say, Till of very late years; for the Antient Precedents which we have to the contrary, are very nu­merous. Amongst many, we shall mention the following Particulars.

[Page 72] In the 21th of Henry the 8th an Act was made in England making it Felony in a Servant that runneth away with his Masters or Mistresses Goods. This Act was not receiv'd in Ireland till it was Enacted by a Parliament held here in the 33d of Henry the 8th. c. 5. Ses. 1.

In the 21th of Henry VIII. c. 19. there was a Law made in England, That all Lords might Distrain on the Lands of them holden, and make their Avowry not naming the Tenant, but the Land. But this was not of force in Ireland till En­acted here in the 33d of Henry VIII. C. 1. Ses. 1.

An Act was made in England, anno 31. Henry VIII. That Joint-Tenents and Tenents in Common should be compelled to make Par­tition, as Coparceners were com­pellable at Common Law. But this Act was not Receiv'd in Ire­land till Enacted here An. 33. Hen­ry VIII. c. 10.

[Page 73] Anno 27. Henry VIII. c. 10. The Statute for Transferring Uses into Possession was made in England; but not admitted in Ireland till 10. Car. 1. Ses. 2.

In like manner, the English Sta­tute 33. Henry VIII. c. 1. directing how Lands and Tenements may be dispos'd by Will, &c. was not of force in Ireland till 10. Car. 2. Ses. 2.

The Act of Uniformity of Com­mon Prayer and Administration of the Sacraments was made in Eng­land the 1st. of Eliz. c. 2. but was not establish'd in Ireland till the 2d. of Eliz. c. 2. And so that of Eng­land 14. Car. 2. c. 14. was not re­ceiv'd in Ireland till 17. & 18. Car. 2 c. 6.

The Statute against Wilful Per­jury made in England 5. Eliz. c. 9. was not Enacted in Ireland till 28 Eliz. c. 1.

So the English Act against Witch­craft and Sorcery made 5 Eliz. c. 16. [Page 74] And another Act against Forgery 5 Eliz. c. 14. were neither of them in force in Ireland till the 28th of Her Reign, Cap. 3 and 4.

The English Statutes against Pi­rates was made the 28th of Hen. 8. c. 15. but not in Ireland till the 12th of King Iames, c. 2.

In England an Act was made the 27th of Eliz. c. 4 against Fraudu­lent Conveyances; but it was not in force in Ireland till Enacted here the 10th of Charles, c. 3. Ses. 2.

In the 15th year of King Charles the 1st. in a Parliament held at Dublin there were Six English Sta­tutes made Laws of this Kingdom, with such Alterations as best fitted them to the State thereof, viz.

21 Iac. c. 14. For pleading the Ge­neral Issue in Intrusions brought by the King, by Chap. 1. of the Irish Statutes.

31 Eliz. c. 2. For Abridging of Proclamations on Fines, by Chap. 2. [Page 75] 2 and 3 Edw. 6. c. 8. Concerning Offices before the Escheator, by Chap. 4.

31 Eliz. c. 1. Discontinuance of Writs of Error in the Exchequer Chamber, by Chap. 5.

8 Eliz. c. 4. and 18 Eliz. c. 7. con­cerning Clergy, by Chap. 7.

24 Hen. 8. c. 5. Concerning Kil­ling a Robber, by Chap. 9.

There are Six English Statutes likewise passed in the time of King Charles the 2d. upon and soon after the Restoration, some of which were not passed into Laws in Ire­land till a year, two or three, after­wards: As will appear by consult­ing the Statute Books. Irish Stat. 13 C. 2. c. 2. 13 C. 2. c. 3. 14 & 15 C. 2. c. 1. 14 & 15 C. 2. c. 19. 17 & 18 C. 2. c. 3. 17. & 18 C. 2. c. 11. English Stat. 12 C. 2. c. 12. 12 C. 2. c. 3. 12 C. 2. c. 14, 12 C. 2. c. 24. 12 C. 2. c. 33. 16 & 17 C. 2. c. 5.

And in the First year of William and Mary, Ses. 2. c. 9. an Act passed in England declaring all Attainders and other Acts made in the late pre­tended Parliament under King James at Dublin void: But was not En­acted here in Ireland till the 7th year of K. William c. 3. And this was thought requisite to be done upon mature consideration thereon before [Page 76] the King and Council of England, For we had two several Acts transmit­ted to us at dif­ferent times, to this very purpose. One we rejected in the Lord Syd­ [...]eys Govern­ment, t'other we pass'd un­der the Lord Capell. notwithstanding that the English Act does particularly name Ireland, and was wholly design'd for, and re­lates thereto.

The like may we find in several other Statutes of England passed since his present Majesties Accessi­on to the Throne, which have af­terwards been passed here in Ire­land, with such Alterations as make them practicable and agreeable to this Kingdom. Such as are a­mongst others, the Act for Disarm­ing Papists. The Act of Recogniti­on. The Act for taking away Clergie from some Offenders. The Act for taking Special Bail in the Country, &c. The Act against Clandestine Mortgages. The Act a­gainst Cursing and Swearing.

These, with many more, are to to be found in our Statute Books in the several Reigns of Henry the 8th. Edward the 6th. Queen Eli­zabeth, King Iames, King Charles the 1st and 2d. and King William. But it is not to be found in any [Page 77] Records in Ireland, that ever any Act of Parliament introductive of a new Law made in England since the time of King Iohn, was by the judgment of any Court received for Law, or put in Execution in the Realm of Ireland before the same was Confirmed and Assented to by Parliament in Ireland.

And thus I presume we have pret­ty clearly made out our Fourth En­quiry forementioned: and shewn plainly the several steps by which the English form of Government, and the English Statute Laws were re­ceived in this Kingdom; and that this was wholly by the Peoples con­sent in Parliament, to which we have had a very antient Right, and as full a Right as our next Neigh­bours can pretend to or challenge.

I shall now consider the Objecti­ons and Difficulties that are mov­ed Objections Answer'd. on this Head drawn from Prece­dents, and Passages in our Law-Books that may seem to prove the contrary.

[Page 78] First 'tis urg'd, That in the Irish Act concerning Rape passed anno Objection from the Stat. of Rape. 8 Edward 4, c. 1. 'tis expressed, That a Doubt was conceiv'd whether the English Statute of the 6th of Richard the 2d. c. 6. ought to be of force in Ireland without a Confir­mation thereof in the Parliament of Ireland. Which shews (as some alledg) that even in those days it was held by some, That an Act of of Parliament in England might bind Ireland before it be consented to in Parliament here.

But I concieve this Gloss is rais'd meerly for want of Expressing the Reason of the said Doubt in the Irish Statute of the 8th of Edward the 4th. c. 1. which we may reaso­nably judge was this. By the Sta­tute of Westminster the 2d. c. 34. a Woman that eloped from her Hus­band and lived with the Adulterer, or a Wife that being first Ravish'd did afterwards consent, and lived with the Ravisher, she should loose her Dower. This Statute of West­minster the 2d, was made of force in Ireland by an Act passed here [Page 79] the 13th of Edward the 2d, as we have seen before, pag. 68, 69. Af­terwards by the English Statute of the 6th of Rich. the 2d. c. 6. there was a farther addition made to the said Statute of Westminster the 2d. to this effect, That a Maiden or Wife being Ravished, and afterwards consenting to the Ravishers, as well the Ravisher as she that was Ra­vished shall be disabled to claim all Inheritance or Dower after the death of her Husband or Ances­tor.

On this account the Doubt was here raised in Ireland in the 8th of Edward the 4th. c. 1. Whether this latter English Statute of the 6th of Richard the 2d. c. 6. were not in force in Ireland by virtue of the I­rish Statute of the 13th of Edward the 2d. which confirmed the Sta­tute of Westminster the 2d. c. 34. And for setling this Doubt the said Statute of the 8th of Edward the 4th c. 1. was passed in Ireland, and we find very good reason for the said Doubt. For the English Sta­tute of the 6th of Richard the 2d. c. 6. contained but a small addition [Page 80] to the Statute of Westminster the 2d c. 34. and we see that even this ad dition it self was judged not to be of force in Ireland till Enacted here. For the said Irish Statute of the 8th of Edward the 4th. c. 1. makes the said Statute of the 6th of Rich. 2d. c. 6. of Force in Ireland only from the 6th of March, then last past.

'Tis urg'd secondly, That tho' perhaps such Acts of Parliament in England which do not Name Ire­land, shall not be construed to Bind Ireland, yet all such English Statutes as mention Ireland, either by the General Words of all his Majesty's Dominions, or by particularly Na­ming of Ireland, are and shall be of Force in this Kingdom.

This being a Doctrine first broach'd Directly (as I conceive) by Will. Hussey, Lord Chief Justice of the Kings Bench in England, in the first year of Henry the Seventh and of late Revived by the Lord Chief Justice Cook, and strongly urged, and much rely'd upon i [...] these latter Days; I shall take th [...] Liberty of Enlarging thereon, tho [Page 81] I venture thereby to swell this Pamphlet to a size greater than I desire or design'd.

First therefore, As to such Eng­lish Object. English Sta­tutes compre­hending Ire­land by gene­ral Words. Statutes as seem to compre­hend Ireland, and to Bind it, un­der the General Words of all his Ma­jesty's Dominions or Subjects, what­ever has been the Opinion of Pri­vate and Particular Lawyers in this Point, I am sure the Opinions of the Kings of England, and their Privy Council, have been other­wise: 'Tis well known since Poyn­ing's Act in Ireland, the 10th of Henry the Seventh, no Act can pass in our Parliament here, till it be first Assented to by the King and Privy Council of England, and Transmitted hither under the Broad Seal of England: Now the King and his Privy Council there, have been so far from surmising that an Act of Parliament of England, men­tioning only in General All the Kings Dominions, or Subjects, should Bind Ireland, that they have clear­ly shewn the contrary, by frequent­ly Transmitting to Ireland, to be pass'd into Laws here, English Sta­tutes, [Page 82] wherein the General Words of all the Kings Dominions or Sub­jects were contain'd; which would have been to no purpose, but meerly Actum Agere, had Ireland been Bound before by those Eng­lish Statutes.

Of this I shall give the follow­ing Examples, amongst many others.

The Act of Parliament in Eng­land Act against Appeals to Rome. against Appeals to Rome, 24 Hen. 8. c. 12. by express words ex­tends to all his Majesties Domini­ons, yet the same was not in force, nor receiv'd in Ireland, till it was Enacted by Parliament there, the 28th of Hen. 8. c. 6.

In like manner the Statutes made Acts of First Fruits and Fa­culties. in England concerning First Fruits, 26 Hen. 8. c. 3. and the Act of Facul­ties, Title in the English Sta­tutes is, No Imposition shall be paid to the Bishop of Rome. 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 [Page 83] 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 High-Com­mission-Court▪ 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.

[Page 84] And truly I see no more Reason By the same Reason Scot­land may be bound. 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 'tis 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.

[Page 85] Secondly, As to such English English Sta­tutes naming Ireland. 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, 'tis 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:

• [Page 86] 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 'tis to be found in the Collection of English Statutes, is plainly thus: The Judges in Ireland [Page 87] 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 'tis manifest, that this Statutum Hiberniae was no [Page 88] 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 Or dinatio pre Statu Hiber­niae. 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 [Page 89] 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 'tis very improbable, that only this single Ordinance should Appear, if any such Parliament were call'd to­gether.

Thirdly, As to the Staple-Act, Staple-Act, 2 Hen. 6. c. 4. which expresly names Ireland, and Hussey's Opinion there­on. The Case, as we find it in the [Page 90] Year-Books of Mich. 2 Rich. 3. fol. 11. and Mich. 1 Hen. 7. fol. 3. is in short thus: The Merchants of Water­ford Merchants of Waterford's Case. having Ship'd off some Wooll, and consign'd it to Sluice in Flan­ders, the Ship by stress of Weather was put in at Callis, where Sir Tho­mas Thwaits, Treasurer of Callis, sei­zed the said Wooll as forfeited, half to himself, and half to the King, by the said Statute; hereup­on a Suit was commenced between the said Merchants and the said Treasurer, which was brought be­fore all the Judges of England into the Exchequer Chamber: The Mer­chants pleaded the King's License to the Citizens of Waterford and their Successors, for carrying Wooll where they pleased; and the Que­stions before the Judges were two, Viz. Whether this Staple-Act Binds Ireland; And Secondly, Whether the King could grant his License con­trary to the Statute, and especially where the Statute gives half the For­feiture to the Discoverer.

The first Point only relates to our present purpose; and herein we find the foresaid Year-Book of 2 [Page 91] Rich. 3. fol. 12. to Report it thus: Et ibi (in the Exchequer Cham­ber) quoad Primam Questionem Di­cebant quod Terr. Hibern. inter se habent Parliament. & omnimodo Cur­prout in Angl. & per Idem Parlia­mentum faciunt Leges & Mutant Le­ges & non Obligantur per Statuta in Anglia, quia non hic habent Milites Parliamenti (and is not that an un­answerable Reason?) sed hoc in­telligitur de terris & rebus in terris illis tantum efficiendo; sed Personae eorum sunt Subject. Regis & tanquam Subjecti erunt Obligati ad aliquam rem extra Terram illam faciend. con­tra Statut. sicut habitantes in Calesia, Gascoignie, Guien, &c. dum fuere Sub­jecti; & Obedientes erunt sub Ad­miral. Angl. de re fact. super Altum Mare; & similit. Brev. de Errore de Iudicio reddit. in Hibern. in Ban­co Reg. hic in Angl.

I have verbatim transcribed this Passage out of the foresaid Year-Book, that I might be sure to omit nothing that may give the Obje­ction its full weight. And all that I can answer to it, is this:

[Page 92] 1. That when the foresaid Case came a second time under the Consideration of the Judges in the Exchequer Chamber in Mich. 1 Hen. 7. fol. 3. we find it Re­ported thus: Hussey the Chief Iu­stice said, That the Statutes made in England shall bind those of Ire­land, which was not much gain-said by the other Iudges, notwithstanding that some of them were of a contrary Opinion the last Term in his Ab­sence. How the Presence and Opi­nion of the Chief Justice came to influence them now, I leave the Reader to judge.

2. That Brook in Abridging this Case of the first of Hen. 7. fol. 3. Ti­tle Parliament, Sec. 90. adds, Ta­men Nota, That Ireland is a King­dom by it self, and hath Parliaments of its own; intimating thereby, That therefore Hussey's Opinion herein was Unreasonable.

3. That 'tis manifest, if Hussey mean by his words, That All Acts of Parliament in England shall bind Ireland, it is directly contrary to [Page 93] the Judges Opinion in the second of Richard the Third, before reci­ted; for within the Land of Ire­land, they are all positive, That the Authority of the Parliament of England will not Affect us. They seem at the utmost reach to extend the Jurisdiction of the English Par­liament over the Subjects of Ire­land, only in relation to their Acti­ons beyond Seas, out of the Realm of Ireland, as they are the King of England's Subjects; but even This will Appear Unreasonable, when we consider, that by the same Ar­gumentation, Scotland it self may be bound by English Laws, in re­lation to their Foreign Trade, as they are the King of Englands Sub­jects. The Question is, Whether England and Ireland be two Distinct Kingdoms, and whether they have each their Respective Parlia­ments; neither of which will be deny'd by any Man: And if so, there can be no Subordination on either side, each is compleat in its own Jurisdiction, and ought not to interfere with t'other in any thing. If being the King of Eng­land's Subjects, be a Reason why [Page 94] we ought to submit to Laws, (in relation to our Trade abroad, in places where the Parliament of England has no Jurisdiction) which have not receiv'd our Assent; the Peo­ple of England will consider whe­ther they also are not the King's Subjects, and may therefore (by this way of Reasoning) be bound by Laws which the King may As­sign them without their Assent, in relation to their Actions Abroad or Foreign Trade: Or whether they had not been Subjects to the King of France, had our Kings con­tinu'd their Possession of that Coun­try, and there kept the Seat of the Monarchy; and then, had France been stronger than England, it might seem that the Subjects of these Kingdoms might have been bound by Laws made at Paris, without their own Consent. But let this Doctrine never be mention'd amongst the Free-born Subjects of these Nations.

Thus I have done with the Three Principal Instances that are usually brought against us, on the Stress that is laid on English Acts of [Page 95] Parliament, particularly Naming Ireland.

There have been other Statutes Members from Ireland in the Parliament of England. or Ordinances made in England for Ireland, which may reasonably be of force here, because they were made and Assented to by our own Representatives. Thus we find in the White Book of the Exchequer in Dublin, in the 9th year of Ed­ward the First, a Writ sent to his Chancellour of Ireland, wherein he mentions Quaedam Statuta per nos de Assensu Prelatorum Comitum Baronum & Communitates Regni no­stri Hiberniae, nuper apud Lincoln & quaedam alia Statuta postmodum apud Eborum facta. These we may sup­pose were either Statutes made at the Request of the States of Ireland, to Explain to them the Common Law of England; or if they were introductive of New Laws, yet they might well be of force in Ireland, being Enacted by the Assent of our own Representatives, The Lords Spiritual and Temporal, and Com­mons of Ireland; as the Words afore-mention'd do shew: And in­deed, these are Instances so far [Page 96] from making against our Claim, that I think nothing can be more plainly for us; for it manifestly shews, that the King and Parlia­ment of England would not Enact Laws to Bind Ireland, without the Concurrence of the Representatives of this Kingdom.

Formerly, When Ireland was but thinly Peopled, and the English Laws not fully currant in all parts of the Kingdom, 'tis probable that then they could not frequently Assemble with conveniency or safe­ty to make Laws in their own Par­liaments at home; and therefore during the Heats of Rebellions, o [...] Confusion of the Times, they were forced to Enact Laws in Eng­land. But then this was always by their proper Representatives. For we find that in the Reign of Edward the Third, (and by what foregoes, 'tis plain 'twas so in Ed­ward the First'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 [Page 97] 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 [Page 98] 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 Modern Acts of the Parlia­ment of Eng­land, naming Ireland. 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 [Page 99] Precedents of English Acts of Par­liament alledged against us: But still with this Observation, That 'tis 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 [...]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. Acts in favour of Adventu­rers in 1641. which was in the Year 1642. there [Page 100] 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 Re [...] an Act passed in England, in relation to the Affairs of Ireland. For 'tis 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 [Page 101] said, that by those Acts 'tis 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; 'twas 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 Acts in Crom­wels time. 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 [Page 102] 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 Act. 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 [Page 103] 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 Act. 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: 'Tis 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 Encouraging Navigation Act. Shipping and Navigation, by express name Mentions and Binds Ireland; and by the last Clause in the Act, Obliges all Ships belonging thereto [Page 104] importing any Goods from our Foreign Plantations, to touch first at England.

Fourthly, The Acts Prohibiting Note, Export­ing Wooll from Ireland, is made penal by the Irish. Stat. 13 Hen. 8. c. 2. 28 Hen. 8. c. 17. But both these Statutes are obsolete: The like may we observe of the 11 Eliz. c. 10. & 13 El. c. 4. the Exportation of Wooll from Ireland, to any Country except to England, do likewise strongly Bind us, and by the 12 Car. 2. c. 32. it was made highly penal on us, and by the 14th of Car. 2. c. 18. 'tis made Felony.

To these three last Acts, I must confess, I have nothing to urge, to take off their Efficacy; Name us they do most certainly, and Bind us so, as we do not transgress them. But how Rightfully they do this, is the matter in Question. This I am sure of, that before these Acts in King Charles the Second's Time, (the Eldest of which is not over Thirty-Seven years) there is not one positive full Precedent to be met with in all the Statute-Book, of an English Act Binding the Kingdom of Ireland. And on this Account we may venture to assert, That these are at least Innovations on us, as not being warranted by any former Precedents.

[Page 105] And shall Proceedings only of Thirty-Seven Years standing, be urg'd against a Nation, to Deprive them of the Rights and Liberties which they Enjoy'd for Five Hundred Years before, and which were In­vaded without and against their Consent, and from that day to this have been constantly complain'd of? Let any English Heart that stands so Iustly in Vindication of his own Rights and Liberties, an­swer this Question, and I have done.

I am now arriv'd at our Present English Acts Binding Ire­land since King William's Reign. Days, under the Happy Govern­ment of His Majesty King WIL­LIAM the Third; and I am sorry to reflect, That since the late Re­volution in these Kingdoms, when the Subjects of England have more strenuously than ever Asserted their own Rights, and the Liberty of Parliaments, it has pleased them to bear harder on their Poor Neigh­bours, than has ever yet been done in many Ages foregoing. I am sure what was then done by that Wise and Just Body of Sena­tors, [Page 106] was perfectly out of Good Will and Kindness to us, under those Miseries which our Afflicted Country of Ireland then suffered But I fear some Men have since that, made use of what was then done, to other Purposes than at first intended. Let us now see what that was, and consider the Circumstances under which it was done.

In the year 1689. when most o [...] the Protestant Nobility, Gentry, and Clergy of Ireland, were dri­ven out of that Kingdom by the Insolencies and Barbarities of the Irish Papists, who were then it Arms throughout the Kingdom and in all Places of Authority un­der King Iames, newly Return'd to them out of France; the only Re­fuge we had to fly to was in Eng­land, where Multitudes continued for many Months, destitute of all manner of Relief, but such as the Charity of England afforded, which indeed was very Munificent, and never to be forgotten.

[Page 107] The Protestant Clergy of Ireland Act for the Protestant Irish Clergy. being thus Banish'd from their Be­nefices, many of them Accepted such small Ecclesiastical Promotions in England, as the Benevolence of well dispos'd Persons presented them with. But this being direct­ly contrary to a Statute in this Kingdom, in the 17 and 18 of Charles the Second, Cap. 10. Intitu­led, An Act for Disabling of Spiritual Persons from holding Benefices or other Ecclesiastical Dignities in Eng­land or Wales, and in Ireland at the same time. The Protestant Irish Clergy thought they could not be too secure in avoiding the Penalty of the last mention'd Act, and therefore Apply'd themselves to the Parliament of England, and ob­tain'd an Act in the first year of King William and Queen Mary, c. 29. Intituled, An Act for the Re­lief of the Protestant Irish Clergy. And this was the first Attempt that was made for Binding Ireland by an Act in England, since his Maje­sty's Happy Accession to the Throne of these Kingdoms.

[Page 108] Afterwards in the same year, and Act against Commerce with France. same Session, Chap. 34. there pass'd an Act in England, Prohibiting all Trade and Commerce with France, both from England and Ireland. This also binds Ireland, but was during the Heat of the War in that King­dom, when 'twas impossible to have a regular Parliament therein, all being in the hands of the Irish Papists. Neither do we complain, of it, as hindring us from corre­sponding with the King's Enemies, for 'tis the Duty of all Good Sub­jects to abstain from that. But 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.

When the Banish'd Laity of Ire­land observ'd the Clergy thus care­ful to secure their Properties, and provide for the worst as well as they could in that Juncture, when no other means could be taken by a Regular Parliament in Ireland; they thought it likewise adviseable for them to do something in rela­tion to their Concerns. And ac­cordingly [Page 109] they obtain'd the Act for Act for Secu­rity of the Protestants of Ireland. the better Security and Relief, of their Majesties Protestant Subjects of Ireland, 1 W. and M. Ses. 2. c. 9. Wherein King Iames's Irish Parlia­ment at Dublin, and all Acts and At­tainders done by them, are declared void. 'Tis likewise thereby Enacted, that no Protestant shall suffer any Prejudice in his Estate or Office, by reason of his absence out of Ireland, since December 25. 1685. and that there should be a Remittal of the Kings Quit-Rent, from 25 December 1688. to the end of the War. Thus the Laity thought themselves secure.

And we cannot wonder that du­ring the Heat of a Bloody War in this Kingdom, when it was impos­sible to Secure our Estates and Pro­perties by a Regular Parliament of our own; we should have recourse to this Means, as the only which then could be had. We conclud­ed with our selves, that when we had obtained these Acts from the Parliament in England, we had gon a great way in securing the like Acts to be passed in a regular Parliament in Ireland, whenever it [Page 110] should please God to re-establish us in our own Country: For we well knew our own Constitution under Poynings Law, That no Act could Pass in the Parliament of Ireland till approved of by the King and Privy Council of England. And we knew likewise, That all the Lords and others of his Maje­sties Privy Council in England are Members of the Lords or Com­mons House of Parliament there. And that by obtaining their Assent to Acts of Parliament in Favour of the Irish Protestants, they had in a manner pre-engaged their Assent to the like Bills when they should hereafter come before them as Pri­vy Councellors, in order to be re­gularly Transmitted to the Parlia­ment of Ireland, there to be passed into Laws of that Kingdom. But instead of all this, to meet with another Construction of what was done herein, and to have it pleaded against us as a Precedent of our Submission, and absolute Acquies­cence in the Jurisdiction of the Parliaments of England over this Kingdom, is what we complain of as an Invasion (we humbly con­ceive) [Page 111] of that Legislative Right which our Parliament of Ireland, claims within this Kingdom.

The next Act pass'd in the Parli­ament Act appoint­ing New Oaths of England, Binding Ireland, is that for Abrogating the Oath of Supremacy in Ireland, and Appointing other Oaths, 3 and 4 William and Mary, c. 2. To this the Parliament convened at Dublin, Anno 1692. under Lord Sydney, and that like­wise Anno 1695. under Lord Capel, paid an intire Obedience. And by this ('tis alledged) we have given up our Right, if any we had, and have for ever acknowledged our Subordination to the Parliament of England. But let us a little consi­der the force of this Argument.

I readily grant, that this and the other fore-mentioned Acts in Eng­land since the Revolution, when they were made, were look'd upon highly in our Favour, and for our Benefit; and to them as such, we have conform'd our Selves. But then, in all Justice and Equity, our Submission herein is to be deem'd purely voluntary, and not at all pro­ceeding [Page 112] from the Right we conclude thereby in the Legislators. If a Man, who has no Iurisdiction over me, command me to do a thing that is pleasing to me, and I do it; it will not thence follow, that there­by he obtains an Authority over me and that ever hereafter I must O­bey him of Duty. If I voluntarily give my Money to a Man when I please, and think it convenient for me; this does not Authorize him at any time to command my Money from me when he pleases. If it be said, this allows Subjects to Obey only whilest 'tis convenient for them. I pray it may be consider­ed, whether any Men Obey longer, unless they be forced to it; and whether they will not free them­selves from this Force as soon as they can. 'Tis impossible to hin­der Men from desiring to free them­selves from Uneasiness, 'tis a Prin­ciple of Nature, and cannot be e­radicated. If Submitting to an In­convenience be a less Evil than en­deavouring to Throw it off, Men will Submit. But if the Inconve­nience grow upon them, and b [...] greater than the hazard of getting [Page 113] rid of it, Men will Offer at puting it by, let the Statesman or Divine say what they can.

But I shall yet go a little further, and venture to Assert, That the Right of being subject Only to such Laws to which Men give their own Consent, is so inherent to all Man­kind, and founded on such Immu­table Laws of Nature and Reason, that 'tis not to be Alien'd, or Given up, by any Body of Men whatso­ever: For the End of all Govern­ment and Laws being the Publick Good of the Commonwealth, in the Peace, Tranquility and Ease of every Member therein; whatsoever Act is contrary to this End, is in it self void, and of no effect: And therefore for a Company of Men to say, Let us Unite our selves into a Society, and let us be absolutely Go­vern'd by such Laws, as such a Legis­ [...]ator, without ever Consulting us, shall devise for us; 'tis always to be understood, Provided we find them for our Benefit: For to say, We will be Govern'd by those Laws, whe­ther they be Good or Hurtful to us, is absurd in it self: For to what End [Page 114] do Men joyn in Society, but to avoid Hurt, and the Inconvenien­cies of the State of Nature?

Moreover, I desire it may be considered, whether the General Application of the Chief part of the Irish Protestants, that were at that time in London, to the Parlia­ment at Westminster, for obtaining these Laws, may not be taken for their Consent, and on that Account, and no other, these Acts may ac­quire their Binding Force. I know very well, this cannot be look'd upon as a Regular and Formal Con­sent, such as might be requisite at another more favourable Juncture: But yet it may be taken talis qualis, as far as their Circumstances at that time would allow, till a more con­venient Opportunity might present it self.

I am sure, if some such Conside­rations as these, may not plead for us, we are of all his Majesties Subjects the most Unfortunate: The Rights and Liberties of the Parliament of England have recei­ved the greatest Corroborations [Page 115] since his Majesties Accession to the Throne; and so have the Rights of Scotland; but the Rights of the Peo­ple of Ireland, on the other hand, have received the greatest Weaken­ing under his Reign, by our Sub­mission (as 'tis alledg'd) to these Laws that have been made for us.

This certainly was not the De­sign of his Majesty's Glorious Ex­pedition into these Kingdoms; That, we are told by Himself, (whom we cannot possibly mistrust) was to Assert the Rights and Liber­ties of these Nations; and we do humbly presume that his Majesty will be graciously pleased to per­mit us to Enjoy the Benefits thereof.

And thus I have done with the The Opinions of the Law­yers thereon. Fourth Article proposed. As to the Fifth, viz. The Opinions of the Learned in the Laws relating to this Matter; 'tis in a great measure dis­patch'd by what I have offered on the Fourth Head; I shall therefore be the more brief thereon. And I think indeed the only Person of Note that remains to be considered [Page 116] by us, is the Lord Chief Justice Lord Chief Justice Cook's Opinion Dis­cuss'd. Cook, a Name of great Veneration with the Gentlemen of the Long Robe, and therefore to be treated with all Respect and Deference.

In his Seventh Report in Calvin's Case, he is proving that Ireland is a Dominion Separate and Divided from England; for this he quotes many Authorities 20 H. 6. 8. Pilkington' s Case. 32 H. 6. 25. 20 Eliz. Dyer. 360. Flowd. Com. 360. out of the Year-Books and Reports; and a­mongst others, he has that which I have before mention'd, pag. 91. 2 R. 3. f. 12. which he Transcribes in this manner, Hibernia habet Par­liamentum, & faciunt Leges, & no­stra Statuta non ligant eos, quia non mittunt Milites ad Parliamentum; and then adds, in a Parenthesis, (which is to be understood, unless they be specially named) sed Personae eo­rum sunt subjecti Regis sicut inhabi­tantes in Calesia, Gasconia, & Guyan. The first thing I shall observe here­on, is the very unfaithful and broken Citation of this Passage, as will manifestly appear by comparing it with the true Transcript I have given thereof before, pag. 91. Were this all, 'twere in some measure [Page 117] pardonable. But what cannot be excused, is the Unwarrantable Po­sition in his Parenthesis, without the least colour or ground for it in his Text. Herein he concludes down right Magisterially, So it must be, this is my Definitive Sentence; as if his Plain Assertion, without any other Reason, ought to prevail; nay, even point blank against the irrefra­gable Reason of the Book he quotes. I confess in another place of Calvin's Case, viz. fol. 17. b. he gives this Assertion a Colour of Reason, by saying, That tho' Ire­land be a Distinct Dominion from England, yet the Title thereof being by Conquest, the same by Iudgment of Law might by Express Words be bound by the Parliaments of England How far Conquest gives a Title, we have Enquired before: But I would fain know what Lord Cook means by 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.

[Page 118] 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 'tis 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 [Page 119] 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. 'Tis 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; [Page 120] 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.

[Page 121] This Assertion likewise is incon­sistent with himself in other parts of his Works. He tells us in his 4th. Inst. pag. 349. That 'tis 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; 'tis not impossible, but they may Enact different or contrary Sanctions; which of these shall the People O­bey? He tells us in Calvin's Case [Page 122] 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 Opinions of other Judges, in Favour of Ireland. 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 Pilki [...]s Case. against A. to shew Cause, why Let­ters [Page 123] 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, This Statute we may reckon. amongst the number of those that are lost during the long In­tervals of our Irish Acts, not­ed before page 65. to be aboue 118 Years. 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; [Page 124] 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 o [...] 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 a Tenth or Fifteenth be granted by Parliament in England, that shall not Bind Ireland, although the King should send the same Statute into Ireland under his Great Seal: Except they in Ireland will in their Parliament Approve it; Because they have not any Commandment by Writ to come to the Parliament of En­gland: And this was not Denied by Markham, Yelverton, or Ascough.

[Page 125] The Merchants of Waterford's Case Merchants of Waterfords Case. which I have observed before, pag. 90. as Reported in the Year Book of the 2d. of Richard the 3d. fol. 11, 12, is notorious on our behalf, but needs not be here repeated.

The Case of the Prior of Lan­thony Prior of Lanthonys Case. in Wales, mentioned by Mr. Pryn against the 4th Inst. ch. 76. p. 313. is usually cited against us. But I conceive 'tis so far from proving this, that 'tis very much in our Be­half. The Case was briefly thus. The Prior of Lanthony brought an Action in the Com. Pleas of Ireland against the of Prior Mollingar, for an Arrear of an Annuity, and Judg­ment went against the Prior of Mollingar; hereon the Prior of Mol­lingar brought a Writ of Error in the King's Bench of Ireland, and the Judgment was affirmed. Then the Prior of Mollingar Appeal'd to the Parliament in Ireland held 5 Hen. 6. before Iames Butler Earl of Or­mond, and the Parliament Revers'd both Judgments. The Prior of Lanthony removed all into the King's Bench in England; but the King's [Page 126] Bench refused to intermeddle, as having no Power over what had pass'd in the Parliament of Ireland. Here­upon the Prior of Lanthony Appeal'd to the Parliament of England. And it does not appear by the Parlia­ment Roll Rot. Parl. An. 8. H. 6. in ult. that any thing was done on this Appeal; all that is Entred being only the Petition it self at the end of the Roll. Vid. Pryn against the 4th Instit. chap. 76. p. 313.

Now whether this be a Prece­dent proving the Subordination of our Irish Parliament to that of En­gland, I leave the Reader to judge. To me it seems the clear contrary. For first we may observe, the King's Bench in England absolutely dis­claiming any Cognisance of what had passed in the Parliament of Ire­land. And next we may observe, That nothing at all was done there­in upon the Appeal to the Parlia­ment of England: Certainly if the Parliament of England had thought themselves to have a Right to En­quire into this Matter, they had so done, one way or t'other, and not left the Matter Undetermin'd

[Page 127] It has ever been acknowledged Argument from Acts of Succession and Recogni­tion pass'd in Ireland. that the Kingdom of Ireland is in­separably annex'd to the Imperial Crown of England. The Obliga­tion that our Legislature lies un­der by Poyning's Act, 10 H. 7. c. 4. makes this Tye between the two Kingdoms indissoluble. And we must ever own it our Happiness to be thus Annex'd to England: And that the Kings and Queens of Eng­land are by undoubted Right, ipso facto Kings and Queens of Ireland. And from hence we may reasona­bly conclude, that if any Acts of Parliament made in England, should be of force in Ireland, before they are Received there in Parliament, they should be more especially such Acts as relate to the Succession and Settlement of the Crown, and Recog­nition of the Kings Title thereto, and the Power and Iurisdiction of the King. And yet we find in the Irish Statutes, 28 Hen. VIII. c. 2. An Act for the Succession of the King and Queen Ann; and another, Chap. 5. declaring the King to be Supream Head of the Church of Ireland; both which Acts had formerly [Page 128] pass'd in the Parliament of England So likewise we find amongst the Irish Statutes Acts of Recognition of the Kings Title to Ireland, in the Reigns of Henry the Eighth, Queen Elizabeth, King Iames, King Charles the Second, King William and Queen Mary. By which it appears that Ireland, tho' Annex'd to the Crown of England, has always been look'd upon to be a Kingdom Compleat within it self, and to have all Jurisdiction to an Absolute King­dom belonging, and Subordinate to no Legislative Authority on Earth. Tho', 'tis to be Noted these English Acts relating to the Succession, and Recognition of the Kings Title, do particularly Name Ireland.

As the Civil State of Ireland is Ireland's State Ecclesiastical Independent. thus Absolute within it self, so like­wise is our State Ecclesiastical: This is manifest by the Canons and Constitutions, and even by the Ar­ticles of the Church of Ireland which differ in some things from those of the Church of England And in all the Charters and Grant of Liberties and Immunities to [Page 129] Ireland, we still find this, That Holy Church shall be Free, &c. I would fain know what is meant here by the word Free: Certainly if our Church be Free and Absolute within it self, our State must be so likewise; for how our Civil and Ecclesiastical Government is now interwoven, every body knows. But I will not enlarge on this head, it suffices only to hint it; I shall detain my self to our Civil Govern­ment.

Another Argument against the Argument from a Record in Reyley. Parliament of England's Jurisdicti­on over Ireland, I take from a Re­cord in Reyley's Placita Parliamen­taria, pag. 569. to this effect: 14 Ed. 2. Par. 2. Memb▪ 21 Int. In the 14th of Edward the Second, the King sent his Letters Patents to the Lord Justice of Ireland, leting him know, That he had been mo­ved by his Parliament at Westmin­ster, that he would give Order that the Irish Natives of Ireland, might enjoy the Laws of England concern­ing Life and Member, in as large and ample manner as the English of Ireland enjoy'd the same. This therefore the King gives in Com­mandment, [Page 130] and orders according­ly, by these his Letters Patents. From hence, I say, we may gather, That the Parliament of England did not then take upon them to have any Iurisdiction in Ireland, (for then they would have made a Law for Ireland to this Effect) but in­stead thereof, they Apply to the King, that he would interpose his Commands, and give Directions that this great Branch of the Com­mon Law of England should be put in Execution in Ireland indifferent­ly to all the Kings Subjects there, pursuant to the Original Compact made with them on their first Sub­mission to the Crown of England.

Let us now consider the great Objection drawn from a Writ of Error. Objection drawn from a Writ of Error's lying from the Kings Bench of England, on a Judgment given in the Kings Bench in Ireland; which proves (as 'tis insisted on) that there is a Subordination of Ire­land to England; and that if an In­feriour Court of Judicature in Eng­land, can thus take cognizance of, and over-rule the Proceedings in the like Court of Ireland; it will [Page] follow, that the Supream Court of Parliament in England may do the same, in relation to the Proceed­ings of the Court of Parliament in Ireland.

It must be confess'd that this has been the constant Practice; and it seems to be the great thing that induced my Lord Cook to believe that an Act of Parliament in Eng­land, and mentioning or Including Ireland, should Bind here. The Subordination of Ireland to Eng­land, he seems to infer from the Subordination of the Kings Bench of Ireland, to the Kings Bench of England. But to this I answer:

1. That 'tis the Opinion of se­veral Learned in the Laws of Ire­land, That this Removal of a Judg­ment from the Kings Bench of Ire­land, by Writ of Error, into the Kings Bench of England, is foun­ded on an Act of Parliament in Ireland, which is lost amongst a great number of other Acts, which we want for the space of 130 years at one time, and of 120 at another time, as we have noted before, [Page 132] pag. 65. But it being only a Gene­ral Tradition, that there was such an Act of our Parliament, we on­ly offer it as a Surmise, the Statute it self does not appear.

2. Where a Judgment in Ireland is Removed, to be Revers'd in England, the Judges in England ought, and always do judge, ac­cording to the Laws and Customs of Ireland, and not according to the Laws and Customs of England, any otherwise than as these may be of Force in Ireland; but if in any thing the two Laws differ, the Law of Ireland must prevail, and guide their Judgment. And there­fore in the Case of one Kelly, Re­moved to the Kings Bench in Eng­land, in the beginning of King Charles the First, one Error was assigned that the Praecipe was of Woods and Underwoods, which is a manifest Error, if brought in Eng­land; but the Judges finding the Use to be Otherwise in Ireland, judged it No Error. So in Crook, Charles, fol. 511. Mulcarry vers. Eyres. Error was assigned for that the Declaration was of one hundred [Page 133] Acres of Bogg, which is a word not known in England; but 'twas said, It was well enough under­stood in Ireland, and so adjudged No Error.

From whence, I conceive, 'tis manifest, that the Jurisdiction of the Kings Bench in England, over a Judgment in the Kings Bench of Ireland, does not proceed from any Subordination of one Kingdom to the other; but from some other Reason, which we shall endeavour to make out.

3. We have before observed, That in the Reign of K. Henry the Third, Gerald Fitz-Maurice, Lord Justice of Ireland, sent four Knights to know what was held for Law in England in the Case of Coparceners. The Occasion of which Message (as before we have noted out of the Kings Rescript) was, because the Kings Justice of Ireland was ig­norant what the Law was. We may reasonably imagine that there were many Messages of this kind; for in the Infancy of the English Government, it may well be sup­posed, [Page 134] that the Judges in Ireland were not so deeply versed in the Laws of England: This occasion­ed Messages to England, Before Judgment given in Ireland, to be inform'd of the Law. And After Decrees made, Persons who thought themselves aggrieved by Erroneous Judgments, apply'd them­selves to the King in England for Redress. Thus it must be, that Writs of Error (unless they had their Sanction in Parliament) be­came in use. Complaints to the King by those that thought them­selves injur'd, increased; and at last grew into Custom, and ob­tain'd the Force of Law.

Perhaps it may be Objected, That if the Judges of the Kings Bench in England ought to Regu­late their Judgment by the Cu­stoms of Ireland, and not of Eng­land, it will follow, that this Ori­ginal which we assign of Writs of Error to England, is not right.

I Answer, That this may be the Primary Original, and yet consist well enough with what we have [Page 135] before laid down: For tho' the Common Law of England was to be the Common Law of Ireland, and Ireland at the beginning of its English Government might fre­quently send into England to be inform'd about it; yet this does not hinder, but Ireland, in a long Process of Time, may have some smaller Customs and Laws of its own, gradually but insensibly crept into Practice, that may in some measure differ from the Cu­stoms and Practice of England; and where there is any such, the Judges of England must regulate their Sentence accordingly, tho' the first Rise of Writs of Error to England, may be as we have here suggested. In like manner, where the Statute-Law of Ireland differs from that of England, the Judges of England will regulate their Judg­ments by the Statute-law of Ire­land: This is the constant Practice, and notoriously known in Westmin­ster-Hall: From which it appears, that removing a Judgment from the Kings Bench of Ireland, to the Kings Bench of England, is but an Appeal to the King in his Bench [Page 136] of England, for his Sense, Judge­ment, or Exposition of the Laws of Ireland. But of this more here­after.

4. When a Writ of Error is Re­turned into the Kings Bench of England, Suit is made to the King only; The Matter lies altogether before Him; and the Party com­plaining applies to No Part of the Political Government of England for Redress, but to the King of Ire­land only, who is in England: That the King only is sued to, our Law-Books make Plain. This Court is call'd Curia Domini Regis, and Au­la Regia, because the King used to sit there in Person, as Lambard tells us; And every Cause brought there, is said to be coram Domino Rege, even at this very day, Cooke 4 Inst. p. 72. Therefore if a Writ be returnable coram nobis ubicunque fuerimus, 'tis to be Return'd to the Kings Bench. But if it be Return­able coram Iusticiariis nostris apud Westm. 'tis to be Return'd into the Common Pleas. This Court (as Glavnil and other Antients tells us) used to Travel with the King, [Page 137] where-ever he went. And Fleta, in describing this Court, says, Ha­bet Rex Curiam suam & Iusticiarios suos, coram quibus, & non alibi nisi coram semet ipso, &c. falsa Iudicia & Errores revertuntur & Corriguntur. The King then (as Britton says) having Supream Jurisdiction in his Realm, to judge in all Causes what­soever; therefore it is, that Erro­neous Iudgments were brought to him out of Ireland. But this does not argue that Ireland is therefore Subordinate to England; for the People of Ireland are the Subjects of the King to whom they Appeal. And 'tis not from the Country where the Court is held, but from the Presence and Authority of the King (to whom the People of Ire­land have as good a Title as the People of England) that the Prae­eminence of the Iurisdiction does flow, And I question not, but in former times, when these Courts were first Erected, and when the King Exerted a greater Power in Judicature than he does now, and he used to sit in his own Court, that if he had Travell'd into Ire­land, and the Court had follow'd [Page 138] him thither; Erroncous Judgments might have been removed from England before him into his Court in Ireland; for so certainly it must be, since the Court Travell'd with the King. From hence it appears, that all the Jurisdiction, that the Kings Bench in England, has over the Kings Bench in Ireland, arises only from the Kings Presence in the former. And the same may be said of the Chancery in England, if it will assume any Power to Con­troul the Chancery in Ireland; be­cause (as Lambard says, p. 69, 70.) The Chancery did follow the King, as the Kings Bench did; and that, as he tells us out of the Lord Chief Justice Scroope, the Chancery and the Kings Bench were once but one Place. But if this be the ground of the Jurisdiction of the Kings Bench in England over the Kings Bench in Ireland, (as I am fully perswaded it is) the Parlia­ment in England cannot from hence claim any Right of Jurisdiction in Ireland, because they claim a Iurisdiction of their own; and their Court is not the Kings Court, in that proper and strict sence that the Kings Bench is.

[Page 139] But granting that the Subordina­tion of the Kings Bench in Ireland, to the Kings [...]ch in England, be rightly concluded from a Writ of Error out of the latter, [...]ying on a Judgment in the former. I see no Reason from thence to conclude, that therefore the Parliament of Ireland is Subordinate to the Parlia­ment in England, unless we make any one sort of Subordination, or in any one part of Jurisdiction, to be a Subordination in all Points, and all parts of Jurisdiction. The Subjects of Ireland may Appeal to the King in his Bench in England, for the Expounding of the Old com­mon and Statute-Law of Ireland; will it therefore follow that the Parliament of England shall make New Laws to bind the Subjects in Ireland? I see no manner of Con­sequence in it; unless we take Ex­pounding Old Laws, (or Laws alrea­dy made) in the-Kings Bench, and making New Laws in Parliament, to be one and the same thing. I be­lieve the best Logician in Europe will hardly make a Chain of Syllo­gisms, that from such Premises, [Page 140] will regularly induce such a Con­clusion.

To close this Point, We find that a Judgment of the Kings Bench in Ireland, may be Removed by a Writ of Error to the Parliament in Ireland: But the Judgment of the Parliament of Ireland was never question'd in the Parliament of England. This Appears from the Prior of Lanthony's Case afore­going.

I shall conclude this our Fifth Article with a memorable Passage Declaration in the Irish Act of Faculties. out of our Irish Statutes, which seems to strengthen what we have delivered on the Business of a Writ of Error, as well as the chief Do­ctrine I drive at; and that is 28 H. VIII. Chap. 19. The Act of Fa­culties. This Statute is a Recital at large of the English Act of the 25 Hen. VIII. c. 21. In the Pream­ble of which English Act 'tis De­clared, That this Your Graces Realm Recognizing no Superiour but Your Grace, hath been and yet is free from any Subjection to any Mans Laws, but only such as have been Devised with­in [Page 141] this Realm; for the Wealth of the same, or to such others, as by Suffe­rance of Your Grace and Your Proge­nitors, the People of the Realm have taken at their Free Liberties by their own Consent; and have bound them­selves by long Use and Custom to the Observance of, &c.

This Declaration, with the other Clauses of the said English Act, is verbatim recited in the Irish Act of Faculties; and in the said Irish Act it is Enacted, That the said English Act, and every thing and things there­in contained, shall be Established, Af­firmed, Taken, Obey'd and Accepted within this Land of Ireland as a good and perfect Law, and shall be within the said Land of the same Force, Ef­fect, Quality, Condition, Strength and Vertue, to all Purposes and Intents, as it is within the Realm of England; (if so, then the said Clause de­clares our Right of being bound only by Laws to which we Con­sent, as it does the Right of the People of England) And that all Subjects within the said Land of Ire­land, shall enjoy the Profit and Commodity thereof, in like manner [Page 142] as the Kings Subjects of the Realm of England.

I am now Arrived at our Sixth and Last Article Proposed, viz. The Farther Rea­sons offered in behalf of Ireland. Reasons and Arguments that may be be farther Offered on one side and t'o­ther in this Debate.

I have before taken notice of the England's Ti­tle to Ireland by Purchase. Title England pretends over us from Conquest: I have likewise en­quired into the Precedents on one side and t'other, from Acts of Par­liament, from Records, and from Reports of the Learned in the Laws. There remains another Pretence or two for this Subordina­tion, to be Considered; and one is founded on Purchase.

'Tis said, That vast Quantity of Treasure, that from time to time has been spent by England in Reducing the Rebellions and carry­ing on the Wars of Ireland, has given them a just Title at least to the Lands and Inheritances of the Rebels, and to the absolute Dispo­sal thereof in their Parliament; And as particular Examples of this, [Page 143] we are told of the great Sums Ad­vanced by England for suppressing the Rebellion of the Irish Papists in 41. and Opposing the late Re­bellion since King WILLIAM's Accession to the Throne.

To this I Answer, That in a War there is all Reason imagina­ble that the Estates of the Unjust Opposers should go to repair the the Damage that is done. This I have briefly hinted before. But if we consider the Wars of Ireland, we shall perceive they do not re­semble the common Case of Wars between two Foreign Enemies; Ours are rather Rebellions, or In­testine Commotions; that is, The Irish Papists rising against the King and Protestants of Ireland; and then 'tis plain, that if these Latter, by the Assistance of their Brethren of England, and their Purse, do prove Victorious, the People of England ought to be fully Repaid▪ But then the manner of their Pay­ment, and in what way it shall be Levied, ought to be left to the People of Ireland in Parliament Assembled: And so it was after [Page 144] the Rebellion of 41. The Adven­turers then were at vast Charges, and there were several Acts of Parliament in England made for their Re-imbursing, by disposing to them the Rebels Lands. But af­ter all, it was thought Reasonable that the Parliament of Ireland should do this in their own way; and therefore the Acts of Settlement and Explanation, made all the for­mer English Acts of No Force; or at least did very much Alter them in many Particulars, as we have Noted before. In like manner we allow that England ought to be re­paid all their Expences in supres­sing this late Rebellion: All we de­fire is, That, in Preservation of our own Rights and Liberties, we may do it in our own Methods re­gularly in our own Parliament: And if the Re-imbursement be all that England stands upon, what avail­eth it whether it be done this way or that way, so it be done? We have an Example of this in Point between England and Holland in the Glorious Revolution under His Present Majesty: Holland in Assisting England Expended 600000 [Page 145] Pounds, and the English Parlia­ment fairly repay'd them: It would have look'd oddly for Holland to have insisted on Disposing of Lord Powis's and other Estates, by their own Laws, to re-imburse them­selves.

'Tis an Ungenerous thing to vil­lifie good Offices, I am far from doing 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 Coun­ [...]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 [...]he same time propose the Preven­tion of their own Danger, that would necessarily have attended our Ruine; if so, 'twas 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, [Page 146] as France or Spain for instance, Object. Ire­land prejudi­cial to Eng­land's Trade, therefore to be Bound. 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. 'Tis 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, [Page 147] 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 'tis time enough to be at Enmity, and use Force.

[Page 148] The last thing I shall take No­tice Object. Ire­land a Colony. 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 'tis 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-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 [Page 149] 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.

[Page 150] 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 Against the Rights of Mankind. 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. 'Tis 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 Consent only gives Law force. depends the Obligation of all Hu­mane Laws; insomuch that without it, by the Unanimous Opinion of [Page 151] 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 [Page 152] 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 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.

[Page 153] 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 [Page 154] the Eastern Dominions, ought to be so: And the same runs through­out the whole Race of Mankind.

Secondly, 'Tis against the Com­mon Against the Common Law of Eng­land. 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 Birth­right 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 [Page 155] 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 [Page 156] 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, 'tis granted in these words, Et ad ha­bend. Commune Concilium Regni de Auxiliis & Scutagiis Assidendis, Sub­moneri faciemus Ar [...]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. [Page 157] 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 Against the Statute Law both of Eng­land and Ire­land. both of England, and Ireland: this has been pretty fully disuss'd before; however I shall here again take no­tice, That See before pag. 65. 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 [Page 158] of Henry the 6th. And in the 10th Year of Henry the 7th. Chap. 23 Irish Statutes, The Parliame [...] which was held at Drogheda, befor [...] Sir Christopher Preston, Deputy to Iaspar Duke of Bedford, Lieut [...] 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 Irelan [...] 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 Pultons Col. Eng. Stats. Edit. 1670. pag. 63. 25t [...] 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. ibid. page. 75. And again in the Statute of Liber ties, by the same King, Cap. 1. D [...] Tallag. non Concedend. it is Enact­ed in these Words. No Tallage or Aid shall be Taken or Levy'd by Us, or Our Heirs, in Our Realm, without [Page 159] 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, ibid. page. 113. 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, 10 H. 7. c. 22 that makes all the Statutes of England before that, in Force in this King­dom? [Page 160] 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, 'tis Dangerous to those who do it, 'tis 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 [Page 161] 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. 28 H 8. c. 4. 28 H. 8. c. 20. 3 & 4 Ph. & M. c. 4. 11 Eliz. Ses. 2. c. 1. 11 Eliz. Ses. 3. c. 8. 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, 'Tis against several Against seve­ral Concessi­ons made to Ireland. 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 [Page 162] Transcribed from the Roll by Sir William Do [...]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 [Page 163] 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 Inconsistent with the Roy­alties of a Kingdom. the Royalties and Praeeminence of a Separate and Distinct Kingdom. That we are thus a Distinct Kingdom, has been clearly made out before. 'Tis plain, the Nobility of Ireland are an Order of Peers clearly Distinct from the Peerage of England, the [Page 164] 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. 'Tis Resolved in Sir Richard Pembrough's Cafe in the 44th of Edw. III. That Sir Richard might lawfully refuse [Page 165] 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. 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. 'Tis 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; 'tis in it self Supream with­in [Page 166] it self, and must have all Jurisdi­ctions, Authorities and Praeeminen­cies to the Royal State of a King­dom belonging, or else 'tis 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 Against the Kings Prero­gative. 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 [Page 167] 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 'tis 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. [Page 168] The Happiness of our Constitu­tions depending on a Right Tem­perament between the Kings and the Peoples Rights.

Seventhly, It is against the Practice Against the Practice of former Ages. 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 [Page 169] 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.

[Page 170] Eighthly, 'Tis against several Against the Resolution of Judges. 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, Destroys Pro­perty. 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 anothe [...] 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 [Page 171] Ple of England, cannot think of such a thing, but with Abhorrence.

Lastly, The People of Ire­land Greates Con­fusion. 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 to England to Assume this Power. 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 [Page 172] 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 Crown of England, with a Design to make them Easie to England, and to keep them in the Allegiance of the King of Eng­land. How Consistent it may be with True Policy, to do that which the People of Ireland may think is an Invasion of their Rights and Li­berties, I do most humbly submit to the Parliament of England to Consider. They are Men of Great Wisdom, Honour, and Iustice: and know how to prevent all future In­conveniencies. We have heard Great Out-cries, and deservedly, on Brea­king the Edict of Nantes, and other Stipulations; How far the Break­ing our Constitution, which has been of Five Hundred years stand­ing, exceeds that, I leave the World to judge. It may perhaps be urg'd, That 'tis convenient for the State of England, that the Supream Council thereof should make their Jurisdi­ction [Page 173] as Large as they can. But with Submission, I conceive that if this Assumed Power be not Iust, it cannot be convenient for the State. What Cicero says in his Of­fices, Nihil est Utile, nisi idem sit Honestum, is most certainly true. Nor do I think, that 'tis any wise necessary to the Good of England to Assert this High Jurisdiction over Ireland. For since the Statutes of this Kingdom are made with such Caution, and in such Form, as is prescribed by Poyning's Act 10 H. 7. and by the 3d and 4th of Phil. and Mar. and whilest Ireland is in En­glish hands, I do not see how 'tis possible for the Parliament of Ire­land to do any thing that can be in the least prejudicial to England. But on the other hand, If England assume a Iurisdiction over Ireland, whereby they think their Rights and Liberties are taken away; That their Parliaments are rendred meerly nugatory, and that their Lives and Fortunes Depend on the Will of a Legislature wherein they are not Parties; there may be ill Conse­quences of this. Advancing the Pow­er of the Parliament of England, by [Page 174] breaking the Rights of another, may in time have ill Effects.

The Rights of Parliament should be preserved Sacred and Inviolable, wherever they are found. This kind of Government, once so Uni­versal all over Europe, is now al­most Vanished▪ from amongst the Nations thereof. Our Kings Domini­ons are the only Supporters of this noble Gothick Constitution, save on­ly what little remains may be found thereof in Poland. We should not therefore make so light of that sort of Legislature, and as it were Abo­lish it in One Kingdom of the Three, wherein it appears; but ra­ther Cherish and Encourage it wherever we meet it.