# A Declaration of the People's Natural Right to a Share in the Legislature/Footnotes
## Page:A Declaration of the People's Natural Right to a Share in the Legislature (1775) (IA declarationofpeo00shar).djvu/293

‭Footnotes by section:
‭Preface
‭(‬17‭) “‬Good and Evil are not matters of Law or of‭ ‬Logic.‭ ‬They are the most,‭ ‬if not the only,‭ essential ‬circumstances of the world.‭ ‬They are what everything else refers to.‭ ‬They stamp an eternal mark‭ and ‬difference on all things,‭ ‬which even imagination cannot cancel or erase.‭ ‬The enjoyment of the‭ ‬one,‭ ‬and the avoiding of the other,‭ ‬is the very end of‭ ‬our being,‭ ‬and likewise of all the beings which do‭ ‬or which even can be supposed to exist,‭ ‬and which have‭ a sense ‬and perception of them.‭ ‬Whatever therefore‭ ‬relates to the general Good‭ ‬and Evil of a People‭ i‬s of a‭ public ‬nature.‭ ‬It is that circumstance which makes it‭ so‬.‭ ‬The terms are as good as synonymous.‭ ‬Whatever‭ ‬concerns,‭ ‬on the contrary,‭ ‬only this or that individual,‭ ‬is of a private nature.‭ ‬It is confined to his or their happiness or‭ welfare ‬to his or their‭ ‬good and evil.‭ ‬There is again the true and unerring‭ ‬criterion.‭ ‬These things seem clear to the greatest degree of intuitive certainty.‭ ‬It is strange to be forced‭ ‬to reason about them‭!” ‬Considerations on the Measures carrying on with respect to the British Colonies in North America.‭ ‬2d Edit,‭ ‬p.‭ ‬156,‭ ‬157.   The “Considerations‭" ‬indeed of this sensible Author,‭ ‬in every other part of his work,‭ ‬highly merit the most serious attention of all those persons‭ (‬of what‭ party so‬ever‭) ‬who desire real information and good counsel concerning the present disputes with our‭ B‬rethren in America.
‭(1‬8‭) — “‬Now the LAW,‭ ‬that is‭" (s‬ays Sir Edward Coke‭) “‬LINEA RECTA est Index sui et obliqui,‭ ‬And Briton saith that TORT a la Ley est contrarie,‭ ‬and as aptly for the cause aforesaid is INJURY,‭ ‬in English called WRONG.‭ ‬And INJURIA is derived from in and jus, because it is contrary to RIGHT,‭ s‬o as a faire tort is sacere tortum, and Fleta saith,‭ ‬est autem jus publicum‭ et PRIVATUM ‬quod ex naturalibus praeceptis out Gentium,‭ aut civilibus, est collectum, et quod injure scripto JUS appelatur, id in lege Angliae Rectum esse aicitur," ‬And in the Mirror‭ A‬nd other places of the Law it‭ ‬is called DROIT,‭ ‬as Droit defend,‭ ‬the Law defendeth.” 1 lnst.‭ ‬lib.‭ ‬2.‭ ‬c.‭ ‬12.‭ ‬p.‭ ‬158.‭ ‬The last two words,‭ ‬however,‭ ‬ought rather to have been rendered the Law forbiddeth, than‭ “‬the Law defendeth,” because the English verb defend‭ is ‬very seldom used in the Sense which Sir Edward Coke meant to express.
‭(‬19‭) ‬For without these they deserve not the name of men, since a more evident “mark of the Beast” ‬need not be sought for than the neglect of reason and conscience,‭ ‬or the baseness of yielding the same in an active obedience to the arbitrary will of any man or body of men whatsoever.‭
(20‭) “‬I say unto you,‭" (s‬aid our Lord,‭) “‬my‭ ‬friends,‭ ‬be not afraid of them that kill the body,‭ ‬and,‭ ‬after that,‭ ‬have no more that they can do‭; ‬but‭ I ‬will forewarn you whom you shall fear:‭ ‬fear him, which,‭ ‬after he hath killed,‭ ‬hath power to cast into‭ Hell; y‬ea,‭ ‬I say unto you,‭ ‬fear him.‭" ‬Luke xii,‭ ‬5.6,-‭ ‬See also Matthew x,‭ ‬28.
‭(‬21‭) ‬I am a professed enemy,‭ ‬indeed,‭ ‬to standing‭ ‬Armies‭; ‬but God forbid that I should be so to the individual incorporated therein,‭ w‬hose true honour, natural dignity, and just privileges, AS MEN, I shall‭ ‬ever be ready to assert and vindicate‭; ‬and indeed I am‭ ‬bound to do so by that indispensable duty which I‭ ‬owe to the great Author of human Nature,‭ ‬in opposition to the spiritual prince of this world,‭ ‬who is ever‭ ‬plotting to corrupt, vilify,‭ ‬and enslave, that noblest‭ ‬work of God,‭ ‬Mankind‭! ‬And as this same Love and‭ ‬Regard,‭ ‬which I here profess for the Individuals of the Army,‭ ‬are certainly due also to the Individuals of‭ ‬every other Body of Men, whose general Principles are censured in this Declaration,‭ ‬I must beg leave to assure my Readers,‭ ‬that I do not mean to oppose the Men,‭ ‬but merely their unreasonable Principles,‭ ‬without any‭ ‬personal application whatsoever‭; ‬for,‭ ‬otherwise,‭ ‬the severity of my expressions‭ (‬especially against the Church‭ ‬of Rome and the French Government‭) ‬would be entirely inconsistent with that “Good-Will to Men,"‭ ‬which‭ ‬I am indispensably obliged(a),‭ ‬for my own eternal‭ ‬Happiness,‭ ‬to maintain‭!
‭(‬22‭) ‬See Note in page x.‭ ‬of this Preface.‭
(23‭) ‬This point is more particularly examined‭ ‬and proved in my Tract concerning,‭ “the ‬Law of Nature and Principles of Action in Man.‭"
(24‭) “‬Do ye not know that the Saints‭” (‬which Term‭ is ‬not confined to Persons of any particular Rank or‭ ‬Office‭) “sh‬all JUDGE THE WORLD‭? ‬And,‭ ‬If‭ ‬the world shall he judged by you,‭ ‬are ye unworthy to‭ ‬judge the smallest Matters‭? — ‬Know ye not that‭ w‬e‭ shall ‬JUDGE Angels?‭—‬How Much more things‭ that pertain to this life." ‬1‭ ‬Cor.‭ ‬vi.‭ ‬2.‭ 3‬.
‭(a)‬-Upon this point I have written a distinct Tract, which is intended also for publication,‭ ‬and entitled “A Tract on the Law of Liberty."
‭(‬25‭) " ‬Primum Fundamentum Legis Anglicae est‭ ‬LEX RATIONIS,‭ &c‬.‭ ‬Quae in hoc‭ ‬Regno,‭ ‬ficut in omnibus aliis Regnis,‭ ‬ubiqae tenentur.‭" ‬Doct.‭ ‬et Stud.‭ ‬c.‭ ‬5.‭ ‬p.‭ ‬14.‭ ‬There is indeed an inferior order of Maxims‭ ‬(though yet of very great authority‭) ‬which arise from‭ ‬general customs and the approved ancient determinations of the Courts of Law‭; ‬and these form,‭ ‬what is‭ ‬called,‭ ‬THE FOURTH foundation of‭ ‬the English Law; though they may be ranked‭ (‬as the Author of Doctor‭ ‬and Student informs us‭) w‬ith the general ancient customs,‭ ‬on THE THIRD foundation. ‭—“‬Si quis tamen pro‭ ‬uno solo fundamento ea"‭ (‬meaning the general customs,‭ ‬and the several maxims arising therefrom‭) “‬censeri‭ ‬judicaverit,‭ ‬ad placitum suum,‭ ea pro ‬uno tantum fundamento compotare potest,‭ ‬et tunc secundum ilium‭ ‬quinque fundamenta"‭ (‬for otherwise he reckons‭ fix in all) “Legis ‬Angiia tantum assignari debent.‭" ‬Doct.‭ ‬et Stud.‭ ‬c.‭ ‬8.‭ ‬p.‭ ‬28.‭ ‬But as the true meaning of the said inferior Maxims is not obvious to people in general,‭ ‬like those belonging to‭ the first ‬foundation, it is happy‭ ‬for us that they are not necessary to be known by any‭ ‬persons who do not profess the Law‭; ‬neither,‭ ‬indeed,‭ ‬can they be known without great study and labour,‭ ‬of‭ ‬which we are well apprised by‭ ‬the learned Author of‭ ‬Doctor and Student.‭ "‬Haec vero maxima solum‭ in C‬uriis Regiis,‭ ‬five inter Legis Angliae peritos noscuntur,‭ ‬nec leviter absque magno studio in legibus Angliae habendo cognosci possunt.‭ Ideo pro sepa‬rabilibus fundamentis ponuntur.‭ ‬Ibid.‭
‭(‬26‭) ‬The Apostle Paul has delivered a most tremendous learning to those wretched Politicians,‭ ‬who admit‭ ‬the baneful Doctrine‭ — “‬Let us do‭ ‬Evil that Good‭ ‬may come;” for he immediately adds,‭ — “‬WHOSE‭ ‬DAMNATION‭" (s‬ays he‭) “‬IS JUST,‭" ‬Rom.‭ iii‬.‭ ‬8.‭ ‬If those persons,‭ ‬who contend for the absolute Necessity of Bribery‭ ‬,‭ ‬Pensions, and other undue means of parliamentary Influence for the carrying on‭ ‬public Business, would carefully confider the said warning, they would have just reason to be alarmed on account of their own personal danger,‭ ‬for having promoted such a baneful and destructive principle‭!
(27‭) “‬Take away the Wicked from before the‭ ‬King,‭ ‬and his Throne shall be established in Righteousness.‭" ‬Prov.‭ ‬xxv.‭ ‬5.‭ ‬It is only against some‭ ‬particular Opinions and evil Counsel, and not against the‭ ‬Persons of those who may have promoted the same,‭ ‬that I mean to apply this excellent proverb:‭ ‬The real‭ ‬intentions of such Men,‭ ‬though erroneous,‭ ‬may have‭ ‬been as Sincere as my own‭; ‬and I therefore protest,‭ ‬that my earnest wish is to promote a change of opinions and measures, rather than of persons, since those,‭ ‬who‭ ‬are once convinced of their former mistakes, may hereafter prove more useful Servants to the public than others,‭ ‬perhaps,‭ ‬whose abilities and conduct are yet untried.
Footnotes for Chapter 1:
‭(1) ‬Judgement of whole Kingdoms,‭ &c. p. 14.
‭(‬2‭) ‬Hooker's Ecclesiastical Polity,‭ ‬lib,‭ 1‬,‭ §. 12, ‬p.‭ ‬87.
‭(‬3‭) ‬I must beg leave to refer the reader also to some‭ ‬excellent observations on this head,‭ ‬in a Pamphlet‭ ‬published since the above was written entitled,‭ A‬n‭ ‬Argument in Defence of the Colonies‭ ‬,‭ ‬p.‭ ‬76,‭ ‬77,‭ ‬and‭ ‬78.
‭(‬4‭) “‬C’est que dans un Gouvernement tel que‭ ‬celui d'Angleterre,‭ ‬tous les efforts que le Souverain fait pour usurper un pouvoir absolu font autant de‭ ‬pas qui le conduisent vers le precipice."‭ ‬Tome‭ ‬3,‭ ‬Liv.‭ x‬.‭ ‬p.‭ ‬329.‭
(5‭) ‬The celebrated Chancellor Fortescue asserts,‭ ‬that‭ ‬a limited or politic Government‭ (‬like that of England‭) ‬is infinitely more eligible,‭ ‬for the interest and satisfaction even of the Prince himself,‭ ‬than an absolute regal power: ‭—‬ “Non jugum fed libertas est politice‭ ‬regere populum‭; s‬ecuritas quoque maxima nedum‭ ‬plebi,‭ ‬fed et ipsi Regi‭; ‬alleviatio eriam non minima solicitudinis suae:‭" — V‬iz. “That to rule the people by Government politic is no Yoke,‭ ‬but‭ ‬Liberty,‭ ‬and great security,‭ ‬not only to the subjects,‭ but ‬also to the King himself; and further,‭ ‬no small‭ ‬lightening or easement to his charge.‭" (‬De Laud.‭ ‬Leg.‭ ‬Angl.‭ ‬cap.‭ ‬34.‭ ‬p.‭ ‬78.‭) ‬So that those politicians,‭ ‬who plead the necessity of securing,‭ ‬at any rate,‭ ‬a majority in parliament,‭ ‬to vote implicitly for whatever‭ ‬the Minister proposes,‭ ‬do miserably betray the true‭ ‬interest and peace of their Sovereign‭! ‬for this fixes‭ ‬upon the King and his Ministers‭ (‬as in arbitrary governments‭) ‬the blame and ignominy of every determination that happens to be wrong,‭ ‬which would otherwise either have been overruled by the free Council of‭ ‬the nation,‭ ‬or else must have been equally imputed to‭ ‬the People themselves:‭ ‬and yet this wretched policy‭ ‬has alternately been adopted by all parties,‭ ‬notwithstanding that it is founded‭ (‬like many of Machiavel's doctrines‭) ‬on that abominable antichristian‭ ‬principle of mere worldly-minded men,‭ — “‬Let‭ ‬us do evil that good may come‭; — whose ‬damnation‭ (‬lays the apostle to the Romans‭) ‬is just,‭" ‬Rom.‭ ‬iii.‭ ‬8.‭ ‬The evil of an undue parliamentary influence they endeavour to excuse by the plea of Necessity‭ ‬for the Good oi the State,‭ ‬though it is certainly the‭ ‬most flagrant Violation of the fundamental principles‭ ‬of the state,‭ ‬and is absolutely destructive of the true interest both of the Prince and People‭!
‭(‬6‭) “‬Nedum principis voluntate, fed et totius regni‭ assensu‬,‭ ‬ipsa‭ (‬i.‭ ‬e.‭ ‬Angliae sstatuta‭) conduntur, ‬quo‭ ‬populi laesuram illa efficere nequeunt,‭ ‬vel non eorum commodum procurare," &c. ‭— “E‬t si statuta haec, tanta solennitate et prudentia edita,‭ ‬efficaciae tantae,‭ ‬quantae conditorum cupiebat intentio,‭ ‬non esse contingant,‭ ‬concito reformari ipsa‭ poss‬unt,‭ ‬et non sine communitatis et procerum regni illius assensu,‭ ‬quali ipsa primitus emanarunt,” &c. Chancel.‭ ‬Fortese.‭ ‬de Laud, Leg.‭ ‬Ang.‭ ‬c.‭ ‬18,‭ ‬p.‭ ‬40.‭ ‬b.
(7‭) “‬Iniquum est ingenuis hominibus non esse liberam rerum suarum alienationem.‭" ‬Co.‭ ‬Lit.‭ ‬223.‭ ‬And again:‭ “‬Quod nostrum est,‭ s‬ine facto five defectu nostro,‭ ‬amiiti seu in alium transferri non potest.‭" ‬8‭ ‬Co.‭ ‬92. “Rerum suarum quilibet est‭ ‬moderator et arbiter.‭" ‬Co.‭ ‬Lit.‭ ‬223. “Regulariter non valet pactum de re mea non alienanda.” Co.‭ ‬Lit.‭ ‬223.‭ ‬And again: “Non potest rex subditum renitentem onerare impositionibus." 2‭ ‬Inst.‭ ‬6I.‭ ‬from Fortescue,‭ ‬c.‭ ‬9.‭ ‬and‭ ‬18.
(8‭) “‬Quicquid est contra normam recti est injuria.‭" ‬3‭ ‬Buls.‭ 3‬13.‭ ‬And “Lex nemini operatur iniquum‭ — nemini facit injuriam" ‬Jenk.‭ ‬Cent.‭ ‬22.‭ ‬And therefore “Quod contra legem sit pro infecto‭ ‬habetur.” 4‭ ‬Co.‭ ‬31.
(9‭) “‬Lex est ab aeterno.” Jenk.‭ ‬Cent.‭ ‬34.
(10‭) — “‬Etiam si aliquod statutum esset editum‭ ‬contra eas,‭" (‬leges divinas,‭) “‬nullius‭ vigoris in l‬egibus Angliae censeri debet,” &c. Doct. et Stud,‭ ‬c.‭ ‬6,‭ ‬p.‭ ‬18.
‭(‬11‭) “‬Qui aliquid statuerit parte inaudita altera,‭ ‬aequum licet dixerit,‭ ‬baud aequum secerit.” Princip. Leg.‭ et AEquit. ‬p.‭ ‬90.‭ ‬or‭ — “‬baud aequus suerit,” 6‭ ‬Co.‭ ‬52.
(12‭) “‬Forma legalis forma essentialis.” 10.‭ ‬Co.‭ — 100. ‬And “Forma non observata insertur adnullatio‭ actus.” 12 ‬Co.‭ ‬7.
‭(‬13‭) “‬Iniquum est aliquem rei sui esse judicem.‭" ‬— "In propria causa riemo judex.‭" ‬Principia Legis‭ et AE‬quitatis,‭ ‬p.‭ ‬41.
‭(‬14‭) “‬Neque Rex ibidem,‭ ‬per se,‭ ‬aut ministros‭ s‬uos,‭ ‬tallagia,‭ s‬ubsidia,‭ ‬aut quaevis onera alia,‭ ‬imponit ponit legiis suis,‭ au‬t leges eorum mutat, vel novas condit sine concessione vel assensu totius regni sui in parliamento suo expresso,” &c.‭ ‬Chancell.‭ ‬Fortescue de Laudibus Legum Angliae,‭ ‬c.‭ ‬36,‭ ‬p.‭ ‬84.‭ ‬b.‭
(15‭) “‬Ubi eadem ratio,‭ ‬ibi idem lex,‭" ‬or‭ " ‬jus,‭" ‬Princip,‭ ‬Leg.‭ ‬et‭ AEquit. ‬p.‭ ‬116.
‭(‬16‭) “‬Major haereditas venit unicuique nostrum a‭ ‬jure et legibus quam a parentibus." 2‭ ‬Inst.‭ ‬56.
(17‭) “‬The first and highest Treason is that which is‭ ‬committed against the Constitution."‭ ‬Lord Sommers's‭ ‬Judgement of whole Kingdoms,‭ ‬p.‭ ‬8 - “Est autom injuria omne quod non jure fit."‭ ‬Fleta,‭ ‬1.‭ ‬2,‭ ‬c.‭ I‬.‭ ‬And,‭ ‬on the other hand, “they neither are,‭ ‬nor can‭ ‬be Traitors,‭ ‬who endeavour to preserve and maintain the Constitution‭; ‬but they are the Traitors, who desjgn and pursue the subversion of it‭; ‬they‭ ‬are the Rebels,‭ ‬that go about to overthrow the Government of their Country‭; ‬whereas such as seek‭ ‬to support and defend it are the truly loyal persons, and do act conformable to the ties and obligations of‭ ** ‬fealty.‭" ‬Lord Sommers,‭ ‬p.‭ ‬9.‭ — ‬Agreeable to this doctrine was the answer of Dr.‭ ‬Sharp,‭ ‬archbishop of York,‭ ‬when the question was put to him,‭ "‬How a person,‭ ‬who had sworn Allegiance to King James,‭ ‬could ,‭ ‬with a good conscience,‭ ‬take the same oath‭ ‬to King William‭?" ‬To which he replied,‭ " ‬That‭ ‬the Laws of the land are the only rule of our conscience in this matter,‭ ‬and we‭ ‬are no further bound‭ ‬to pay‭ ‬obedience to governors,‭ ‬nor to any other governors,‭ ‬than the Laws enjoin.‭ ‬If,‭ ‬therefore,‭ ‬King‭ ‬William,‭ ‬in the eye of the Law,‭ ‬be our King,‭ ‬we must in conscience pay obedience to him as such.‭ ‬I take‭ ‬this‭ (s‬ays he‭) ‬for a certain truth,‭ ‬that,‭ ‬as the‭ Law ‬makes the King, so the same Law extends, or‭ ‬limits,‭ ‬or transfers,‭ ‬our obedience and allegiance‭; a‬nd all Oaths imposed by the Law oblige the conscience no further than the Law meant they should‭ oblige‬.‭ ‬Only this is always to be remembered that,‭ ‬whatever Obedience the Laws of the land require of us,‭ ‬it is to be understood with this proviso,‭ ‬that it be not‭ co‬ntradictory to the Laws of God.‭ ‬But in that case we must obey passively,‭ ‬though we cannot obey actively:‭ ‬and with this tacit condition I do suppose all‭ ‬oaths of fidelity in the world are‭ ‬given and taken.‭" ‬Life of Abp.‭ ‬Sharp,‭ ‬part‭ ‬3d,‭ ‬pag.‭ ‬24,‭ ‬25,‭ ‬and‭ ‬26.‭ ‬MS.‭ ‬written by his Son,‭ ‬for the use of his Grandchildren.
‭(‬18‭) “‬Quae rerum natura prohibentur NULLA Lege confirmata funt."‭ (‬Finch,‭ ‬74.‭) ‬And‭ “‬Nihil‭ quod ‬est contra rationem est licitum.‭" ‬Co.‭ ‬Lit.‭ ‬97.
‭(‬19‭) "‬Ubi non est condendi authoritas,‭ ‬ibi non eft‭ p‬arendi necessitas.‭" ‬Dav.‭ ‬69.‭ ‬And‭ "‬Judicium a non fuo judice datum nullius eft momenti.‭" 10. ‬Co.‭ 76.
‭(‬20‭) " ‬Nam non potest rex Angliae,‭ ‬ad libitum suum,‭ ‬leges mutare regni fui.‭ ‬Principatu namque nedum‭ ‬regali, fed et politico, ipfe suo populo dominatur.‭" ‬And again:‭ "‬Quia nec leges ipse"‭ [‬rex‭] “‬fine‭ s‬ubditorium assensu mutare poterit, nec subjectum populum renitentem onerare impositionibus peregrinis‭; q‬uare‭ ‬populus ejus libere fruetur bonis suis,‭ ‬Legibus,‭ ‬quai cupit,‭ ‬regulatus, nec per regem suum,‭ ‬aut quemvis‭ alium, ‬depilatur,” &c.‭ ‬Chancel. Fortescue deLaud. Leg,‭ ‬Ang.‭ ‬c.‭ ‬9,‭ ‬p.‭ ‬26.
‭(‬21‭) "‬Si a jure discedas,‭ ‬vagus eris,‭ ‬et erunt omnia omnibus incerta.‭" ‬Co.‭ ‬Lit.‭ ‬227.‭ ‬And,‭ “‬Rerum ordo confunditur si unicuique jurisdictio non fervetur.” (‬4‭ ‬Inst.‭ ‬proem.‭) ‬For,‭ ‬if the fundamental Rule of the Constitution be set aside even in one‭ ‬instance,‭ ‬the baneful influence of such an evil precedent will soon prepare the way for the Declaration of the‭ w‬hole Law‭; ‬because, “uno absurdo dato,‭ ‬infinita sequuntur.”‭ ‬1‭ ‬Coke,‭ ‬102.‭
‭(‬22‭) ‬If the preceding arguments are not sufficient‭ ‬to prove in what light the said Act is to be considered, yet the present distinct and separate Jurisdiction of the‭ ‬Irish Parliament,‭ ‬the Continuation of their ancient and‭ ‬constitutional Privileges,‭ ‬notwithstanding the doctrine‭ ‬asserted in the said Act,‭ ‬and their annual Transactions,‭ ‬both in Taxation and Legislation,‭ ‬are Facts,‭ ‬which‭ ‬prove‭ (‬better than Arguments‭) ‬that the people of Ireland‭ ‬have‭ ‬an inherent Right to enact Laws independent of the British Parliament‭; ‬otherwise the King's‭ Assen‬t would not be sufficient to render the said laws‭ valid‬ and binding without the especial approbation and‭ ‬consent also of the British Parliament,‭ ‬which indeed‭ ‬is never required‭; s‬o far is it from being necessary!‭ ‬And,‭ ‬farther,‭ ‬the inhabitants of Great-Britain would think‭ it‬ extremely unreasonable and unjust,‭ ‬if the Parliament of Ireland should claim a Right of making Laws, with the Kind's assent,‭ ‬to bind any part of this Island!‭ ‬The Argument is reciprocal:‭ so‬ that,‭ ‬if we should‭ rea‬lly detest such a measure against ourselves,‭ ‬the Law of Laws forbids us to claim the like power over any‭ ‬of our fellow-subjects,‭ ‬without their free consent.‭ “‬Non facias alteri quod tibi non‭ ‬vis fieri."‭ ‬This is laid down as one of the most common precepts of‭ ‬the Law of Reason‭ (‬Doct.‭ ‬and Stud.‭ ‬c.‭ ‬2,‭ ‬p.‭ ‬7.‭); and s‬uch is the immutability of the Law of Reason, that‭ against‬ it there can be no prescription,‭ statute, ‬or custom‭; ‬and,‭ ‬if any are made contrary thereto,‭ ‬they are‭ ‬not to be esteemed statutes or customs,‭ ‬but corruptelae, i.‭ ‬e.‭ ‬Corruptions or Depravities‭ — “‬Non funt statuta sive consuetudines,‭ s‬ed corruptelae.” Doct.‭ ‬and‭ ‬Stud.‭ ‬c.‭ ‬2,‭ ‬p.‭ ‬5.‭ ‬To the same effect is that Command of Christ himself,‭ (‬recorded in Matt.‭ ‬vii.‭ ‬I2.‭) ‬which our Lord declared to be‭ “‬the Law end the Prophets;" viz.‭ “‬Whatsoever ye would that men should do‭ ‬to you,‭ ‬do ye even so to them:‭ ‬for this is the Law and‭ the prophets”: s‬o that it may justly be intitled, the Law‭ of L‬aws‭; and a sta‬tute,‭ ‬therefore,‭ ‬which is‭ ‬contrary thereto,‭ ‬is doubly unlawful.
The separate interests of the‭ ‬two Kingdoms are sufficiently restrained,‭ ‬with respect to each other,‭ ‬by our‭ ‬excellent Constitution of State,‭ ‬which‭ ‬requires‭ the Ass‬ent of the People, ‭ (‬that is,‭ ‬of those which are concerned‭ ‬respectively,‭) ‬to render any Law‭ v‬alid and binding upon either nation‭; w‬hich,‭ ‬the foregoing arguments‭ ‬demonstrate:‭ ‬and I hope the ingenious and sensible author of the argument in defence of the Colonies‭ ‬(lately published‭) ‬will‭ a‬cknowledge,‭ ‬that he has‭ all‬owed too much,‭ ‬when he admits, in‭ ‬page i‭ ‬14,‭ ‬that “the‭ ‬whole kingdom of Ireland is bound by the Acts of the‭ S‬upreme Legislature,‭ &‬c."‭ ‬which doctrine leads him‭ ‬afterwards to make a distinction between Taxation and Legislation.
And again,‭ ‬the two kingdoms are so firmly united, by the bands of‭ Allegiance, to one Head (or Monarchy) of li‬mited power,‭ ‬that their interests in all material‭ external ‬exigencies are thereby rendered mutual, as well as their internal interests,‭ ‬in the maintenance of‭ natural a‬nd constitutional Liberty,‭ ‬in each kingdom respectively; because one of them cannot be deprived of this,‭ (‬as‭ ‬they are governed by the same Head,) without hastening the destruction of the other.‭ ‬And this intimate‭ ‬connexion of mutual interest in the‭ ‬constitution of‭ st‬ate,‭ ‬and in the reciprocal enjoyment of the same reasonable common Law,‭ (‬whereby each kingdom enjoys‭ ‬an Equality of privilege,‭ ‬and natural freedom,‭) ‬renders the Union of the two kingdoms more just and‭ equitable, ‬ and,‭ ‬consequently,‭ ‬more‭ sa‬fe and durable,‭ ‬than it could possibly have been made by any other‭ ‬means:‭ ‬and the inhabitants of both islands‭ (‬though‭ s‬prung from a variety of jarring,‭ ‬jealous,‭ ‬and fierce‭ ‬nations‭) ‬have,‭ ‬by these means,‭ ‬acquired a certain mutual consideration for each other,‭ as fe‬llow-subjects,‭ ‬which‭ ‬could never have been produced by mere alliances,‭ ‬guarantees,‭ ‬or defensive leagues,‭ ‬nor,‭ ‬perhaps,‭ ‬by‭ ‬any other mode of government whatever,‭ ‬than that‭ ‬by which divine Providence has effected it‭; viz‬.‭ ‬the‭ ‬English Constitution:‭ ‬this has firmly united the Strength‭ ‬of the two Islands‭; ‬whereby reciprocal succour,‭ ‬in‭ ‬time of need,‭ ‬is insured to both.
‭(‬23‭) “‬Qui aliquid statuerit,‭ ‬parte inaudita altera, licet aequum dixerit,‭ ‬baud aquum fecerit:‭" s‬o that,‭ ‬if any act is ever so just in itself,‭ ‬yet it becomes otherwise‭ (‬that is,‭ ‬unjust and iniquitous,‭ ‬as is before remarked‭) ‬by the want of these legal formalities.
‭(‬24‭) ‬Every establishment in the American Colonies‭ ‬has been settled by our ancestors as nearly as possible‭ ‬to the constitutional form of government in the Mother-Country‭; ‬and,‭ ‬as the advantages of this mode‭ ‬have been proved by the experience of more than a‭ ‬century‭; (s‬ee an argument,‭ ‬just published,‭ ‬in defence‭ ‬of the exclusive Right,‭ ‬claimed by the Colonies,‭ ‬to‭ ‬tax themselves,‭ ‬p.‭ ‬36,‭ ‬39,‭ ‬44.‭) ‬it is very dangerous‭ ‬(now that the Colonies begin to be filled with people‭) ‬to vary the ancient and approved Form of the Constitution.‭ "‬Periculosum est nes novas et inusitatas inducere,” Co.‭ ‬Lit.‭ 3‬79.‭ ‬And,‭ “‬Claudulae inconsuetae semper inducunt suspicionem.‭" ‬3‭ ‬Co.‭ ‬81.‭ ‬And‭ ‬again, “Quae praeter consuetdinem et morem majorum‭ s‬iunt neque placent,‭ ‬neque recta videntur‭" ‬4‭ ‬Co.‭ ‬78.‭ ‬And lastly, “Whatsoever is against the Rule of‭ ‬Law‭ ‬is inconvenient.‭" ‬Co.‭ ‬Lit.‭ ‬p.‭ ‬379.
‭(‬25‭) ‬The toleration of domestic Slavery in the Colonies greatly weakens the claim or natural Right of our‭ ‬American Brethren to Liberty.‭ ‬Let them put away‭ ‬the accursed thing‭ (‬that horrid Oppression‭) ‬from among‭ ‬them,‭ ‬before they presume to implore the interposition of divine Justice‭; ‬for,‭ ‬whilst they retain their brethren‭ ‬of the world in the most shameful involuntary servitude,‭ ‬it is profane in them to look up to the merciful Lord of‭ ‬all,‭ ‬and call him Father‭!
(26‭) “‬To extend the Governor's Right to command,‭ ‬and Subject's Duty to obey,‭ ‬beyond the Laws of one's country,"‭ (s‬aid that learned lawyer,‭ ‬Lord Sommers,‭) "‬is Treason against the Constitution,‭ ‬and Treachery to the society whereof we are‭ ‬members.‭" ‬Judgement of whole Kingdoms,‭ &‬c.‭ ‬p.6.‭
(27‭) “‬Nor is it merely the first and highest Treason‭ ‬in itself,‭ ‬that a member of a political society is capable of committing,‭ ‬to go about to subvert the Constitution‭; ‬but it is also the greatest‭ ‬Treason he can‭ ‬perpetrate against the Person,‭ ‬Crown, and Dignity‭ ‬of the King; for such an endeavour both annuls‭ ‬and vacates all his title to superiority over those‭ ‬above whom he was exalted from the common level by‭ ‬virtue of the Constitution,‭ ‬and deprives him‭ ‬of all rightful and legal claim of rectoral authority‭ ‬over the society,‭ ‬by destroying the alone foundation upon which it was erected‭ ‬and by which he‭ ‬became veiled with it,” &c.‭ ‬Ibid.‭ ‬p.‭ ‬9‭ & ‬10.
‭(‬28‭) "‬Cui plus licet quam par est,‭ ‬plus‭ ‬vult quam‭ ‬licet." 2‭ ‬Inst.‭ ‬465.
(29‭) “‬Firmior et potentior est operatio legis quam‭ ‬dispositio hominis.‭" ‬Co.‭ ‬Lit.‭ 102
(30‭) "‬Whosoever‭" (s‬ays Aristotle‭) “‬is governed‭ ‬by a man‭ ‬without Law, is governed by a man and by a beast.‭" ‬Lord Sommers,‭ ‬N.‭ I 1‬. " Ipse autem rex non debet esse sub homine,‭ sed sub ‬Deo,‭ ‬et sub lege‭; ‬quia lex facit regem. Attribuat‭ ‬igitur rex legi quod lex attribuit ei,‭ ‬videlicet dominationem‭ ‬et potestatem:‭ ‬non est enim rex ubi dominatur‭ ‬volufitas,‭ ‬et non lex.‭'* ‬Brafton,‭ ‬lib.‭ ‬i,‭ ‬c.‭ ‬8.‭ ‬------ “Rex autem habet superiorem,‭ ‬Deum.‭ ‬S. ----‭ ‬Item‭ l‬egem, per quam factus esi rex.‭ — ‬Item curiam suam," &c. ----‭ ‬Et ideo si rex fuerit sine sraeno, i.e. sine‭ ‬lege,‭ ‬debent‭ ‬ei fraenum ponere,‭" &‬c.‭ ‬Bract.‭ ‬lib.‭ ‬2,‭ c‬.‭ ‬21,‭ ‬p.‭ ‬34.
(31‭) — "‬Non est enim rex ubi dominatur voluntas, et‭ ‬non lex.‭" ‬Bract.‭ ‬lib.‭ ‬i,‭ ‬c.‭ ‬8,‭ ‬p.‭ ‬5,‭ ‬b.
(32‭) "‬La ley est le plus haute inheritance que‭ le‬ roy ad:‭ ‬car par la ley il‭ ‬meme et touts ses sujets font rules,‭ et si ‬le ley ne suit,‭ ‬nul Roi,‭ et ‬nul inheritance, sera."‭ ‬19‭ ‬Hen.‭ ‬VI.‭ ‬63.
‭(‬33‭) “‬Ubi non eft condendi authoritas, ibi non est‭ p‬arendi necessitas.‭" ‬Dav.‭ ‬69.‭ ‬Prin.‭ ‬Leg.‭ ‬et‭ A‬Equit.‭ ‬p.‭ ‬117.
(34‭) “‬Insuper lex rationis permittit plurima fieri,‭ ‬ut seilicet quod licitum est vim vi repellere,‭ ‬et quod‭ s‬as unicuique se tueri et rem suam defendere contra‭ ‬vim‭ ‬injustam."‭ ‬Doct.‭ ‬ct Stud.‭ ‬c.‭ ‬2,‭ ‬p.‭ ‬8.‭ — ‬See also‭ ‬Bracton,‭ ‬lib.‭ ‬4,‭ ‬c.‭ ‬4,‭ ‬p.‭ ‬162.‭ ‬b.
Footnotes for section 2 of chapter 1:
‭(1) ‬Whereas it hath been found,‭ b‬y former experience, that the Courts of Wards and Liveries,‭ ‬and Tenures by Knights-Service,‭ ‬either of the King or‭ ‬others,‭ ‬or by Knights-Service‭ in capite, ‬or Soccage‭ ‬in capite of the King,‭ ‬and the consequents upon the‭ ‬fame,‭ ‬have been much more burthensome,‭ ‬grievous,‭ ‬and prejudicial,‭" &c.
(2) See‭ ‬2d and‭ ‬4th Sections of the said Act.‭
Footnotes for chapter 2:
‭(1) “‬Huffey,‭ ‬Chief Justice,‭ ‬disoit que les Statuts faits en Angleterre liera ceux de Ireland,‭ ‬que ne suit moult‭ ‬dedit des autres Justices,‭ ‬nient obstant que aucun de‭ ‬eux furent en contraria‭ ‬opinione le derrein term en son‭ ‬absence.‭" ‬Year-Book,‭ ‬i Hen.‭ ‬VII.‭ ‬p.‭ ‬3.
‭(‬2‭) W‬hich is clearly proved by Sir Richard Bolton,‭ ‬Chancellor of Ireland,‭ ‬in the Declaration,‭ &c. ‬printed‭ ‬in Harris's Hibernica,‭ ‬p.‭ ‬29.‭ ‬- “As‭ ‬to‭ ‬the Opinion of‭ ‬Huffy,‭ ‬Chief Justice,‭ ‬in first of Hen.‭ 7‬.‭ ‬fol.‭ ‬3.‭ ‬that‭ ‬the Statutes made in England‭ ‬shall bind them of Ireland, this Opinion,‭ ‬as it is put by him generally,‭ ‬cannot he‭ law; ‬for Brooke,‭ ‬in abridging that case in title Parliament,‭ ‬Sect.‭ ‬19.‭ ‬faith,‭ that the ‬opinion was denied to‭ ‬be law,‭ ‬the last term before‭; ‬and added further,‭ ‬tamen nota,‭ ‬that Ireland is a Realm of itself and hath a‭ ‬"Parliament in itself implying thereby,‭ ‬that Ireland could‭ n‬ot be bound but by a Parliament of Ireland. And‭ ‬according to that is the opinion of the Judges in‭ ‬20th Hen.‭ ‬VI.‭ ‬fol.‭ ‬8.‭ ‬in John Pilkington's cafe‭; ‬and in‭ ‬2d Rich.‭ ‬III,‭ ‬fol.‭ ‬11.‭ ‬in the Merchants of Waterford's case,‭ ‬before remembered‭; ‬and likewise contrary to the opinion of Huffy,‭ ‬are the judgements of‭ ‬eight several Parliaments in Ireland before the Statute of‭ ‬10th of Hen.‭ ‬VII.‭ viz. ‬13th of Edw.‭ II‬.‭ ‬19th of Edw.‭ ‬II.‭ ‬18th of Hen.‭ ‬VI.‭ ‬29th of Hen. VI.‭ ‬32d Hen.‭ ‬VI.‭ ‬37th Hen.‭ ‬VI.‭ ‬and‭ ‬8th Edw. IV.‭ ‬And,‭ sin‬ce the Statute‭ ‬10th Hen.‭ ‬VII.‭ ‬of five‭ ‬Parliaments‭; viz‬.‭ ‬28th of Hen.‭ ‬VIII.‭ 3‬3d of Hen. VIII.‭ ‬28th of Eliz.‭ 11‬h of Jam.‭ ‬and 10th Car.‭ besides‬ the Statute of 10th of Hen.‭ ‬VII.‭ ‬itself.‭"
‭(‬3‭) ‬This binding in external transactions seems to‭ ‬be allowed‭ (‬though unwillingly‭) ‬by Mr.‭ ‬Mollyneux‭ ‬(a‭ ze‬alous‭ ‬asserter of the liberties of Ireland in the‭ ‬Reign of King William‭)‬.‭ "‬They seem‭" (s‬ays‭ ‬he,‭ s‬peaking of English Acts of Parliament‭) “a‬t the utmost‭ ‬reach,‭ ‬to extend the jurisdiction of the English Parliament over the subjects of Ireland,‭ ‬only in relation to their action, beyond seas, out of the Realm of Ireland, as they are the King of England’s subjects,” &c. p. 71.‭
‭(‬4‭) “‬All the Judges‭" (‬but we must‭ ‬except Huffy‭) “‬were assembled in the Exchequer-Chamber,‭ ‬and‭ ‬there,‭ ‬with respect to the first question,‭ ‬it was said,‭ ‬that the lands of Ireland have a Parliament among‭ ‬themselves,‭ ‬and all Kinds of Courts,‭ ‬as in England‭; ‬and,‭ ‬by the same Parliament,‭ ‬they make laws and‭ ‬change laws,‭ ‬and are not bound by Statutes‭ (‬made‭) ‬in England,‭ ‬because they have not here Knights of‭ ‬Parliament‭; ‬but this is understood of lands and‭ ‬things only to be effected in those lands,‭ ‬but their‭ ‬persons are subject to the King‭; ‬and,‭ ‬as subjects,‭ ‬they are bound to any thing out of that land,‭ ‬that is‭ ‬done out of that land contrary to Statute,‭ ‬like as the inhabitants of Calais,‭ ‬Gascoigne,‭ ‬Guienne,‭ &c. ‬while they were subjects of the King,‭ ‬and in like manner are obedient under the Admiral of England concerning any thing done upon the High-‭ ‬Seas,‭ ‬and‭ ‬also a writ of error of judgement given in Ireland (is cognizable‭) ‬in the King's Bench here in England.”
Anno secundo Rich.‭ ‬III.‭ ‬p.‭ ‬12.‭ “‬Omnes Justicia-rii"‭ (‬but we must except Huffy‭) “‬associati suerunt‭ ‬in Camera Scaccarii,‭ ‬et ibi quoad primam questionem‭ ‬dicebatur,‭ ‬quod terrae Hiberniae inter se habent‭ ‬Parliamentum et omnimodo Curias prout in Anglia,‭ ‬et per idem Parliamentum faciunt leges et mutant‭ leges‬, et non obligantur per statuta in Anglia,‭ ‬quia non‭ ‬hie habent Milites Parliamenti‭; ‬fed hoc intelligitur de‭ ‬terris et rebus in terris ill‭' ‬tantum efficiendo,‭ ‬fed‭ ‬perfonae illae sunt subjectae Regis,‭ ‬et tanquam subjecti‭ ‬erunt‭ ‬obligati ad aliquam rem extra terram illam facierdam contra Statutum,‭ s‬icut habitantes in Calesia,‭ ‬Gascoignie,‭ ‬Guien,‭ &‬c.‭ ‬dum suerunt subjecti‭; ‬et‭ ‬fimiliter obedienies erunt sub Admirall‭' ‬Angliae,‭ ‬de re facta super altum mare:‭ ‬et similiter breve de‭ ‬errore de judicio reddito in Hibernia in Banco Regio hic in Anglia,‭" &c.
‭(‬5‭) “‬That albeit Ireland was a distinct Dominion,‭ ‬yet,‭ ‬the title thereof being by conquest,‭ ‬the same,‭ ‬by‭ ‬judgement of law,‭ ‬might by express words be bound‭ ‬by Act of Parliament of England.‭" ‬Calvin's Cafe,‭ ‬7th Rep.‭ ‬p.‭ ‬444.
(6‭) ‬See the former note in p.‭ ‬56.‭ “‬Quia non hie habent Milites Parliamenti.”
‭(‬7‭) “-------- ‬et auxi la terre de Ireland est severe del'Roiaume d'Angleterre‭; ‬car si un disme ou quinzime soit grante icy,‭ ‬ceo ne liera ceux d'Ireland; mesq‭; ‬le Roy manderoit m cel‭' ‬estat"‭ (‬for estatute‭) “‬en Ireland soubz son Grand Seel,‭ ‬finon que ils veul’ en leur Parliament ceo approver‭; ‬mes s'ils veul allower ceo,‭ ‬donq sera tenu la et ils seront lies paricel‭'‬.‭" ‬Year-Book‭ ‬19th Hen.‭ ‬VI.‭ ‬p.‭ ‬8.‭
‭(‬8‭) ‬The case is stated by Sir Richard Bolton,‭ ‬Chancellor of Ireland,‭ ‬in his Declaration,‭ &‬c.‭ ‬printed in Harris's Hibernica,‭ ‬p.‭ 15‬.‭ ‬as follows: “That‭ ‬one John Pilkington brought a soire facias against one A.‭ ‬to shew cause why Letters Patents, whereby the King had granted an office in Ireland to the said A.‭ s‬hould not be repealed,‭ ‬whereas‭ ‬the said John Pilkington had the same office granted him by former Letters Patents granted by the‭ s‬ame King,‭ ‬to occupy to himself or his Deputy.‭ ‬Whereupon the said A.‭ ‬was warned and appeared,‭ ‬and said,‭ ‘T‬hat the‭ land ‬of Ireland,‭ ‬time beyond the‭ ‬memory of man,‭ ‬hath been a land separated and severed‭ ‬from the Realm of England,‭ ‬and ruled and governed by‭ ‬the customs and laws of the same land of Ireland.‭ ‬And 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 Justice,‭ ‬which Justice,‭ s‬o‭ ‬elected,‭ ‬hath power to pardon and punish all felonies,‭ ‬trespasses,‭ &c‬.‭ ‬and to assemble a Parliament,‭ ‬and‭ ‬by the advice of the Lords and Commonalty to make‭ ‬Statutes;‭ ‬and he alledgeth further,‭ ‬that a Parliament was assembled,‭ ‬and that it was ordained,‭ ‬by the said‭ ‬Parliament,‭ ‬that every man who had any office within the said land,‭ ‬before a certain day,‭ ‬and he puts the‭ ‬day in certain,‭ shall‬ occupy the said office by himself,‭ ‬or otherwise that he shall forfeit his office.‭ A‬nd‭ s‬heweth,‭ ‬further,‭ ‬how the said John Pilkington occupied the said office by a deputy,‭ ‬and that,‭ ‬insomuch as he came not in proper person to reside upon‭ ‬his office before the day,‭ t‬hat his office was void,‭ ‬and‭ ‬that the King,‭ ‬by his Letters Patents,‭ ‬granted the said office,‭ s‬o become void,‭ ‬to the said A.‭ ‬and‭ p‬rayed that the said Letters Patents should be effectual,‭ ‬and not repealed.'‭ ‬And upon the plea the‭ s‬aid John Pilkington demurred in law.‭ ‬In the argument of which case,‭ ‬it was debated by the Judges,‭ ‬Yelverton,‭ ‬Fortescue,‭ ‬Portington,‭ ‬Markham,‭ ‬and‭ ‬Ascough,‭ ‬whether the said prescription were good,‭ ‬or 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 effectual,‭ ‬and‭ ‬ought not to be repealed:‭ ‬and in the argument of‭ ‬this cafe it was agreed,‭ ‬by Fortescue and Portington,‭ ‬that if a tenth or fifteenth be granted by Parliament in England,‭ ‬that shall not bind them in Ireland‭; ‬although‭ ‬the King send the lame Statute into Ireland,‭ ‬under his great seal‭; ‬except they in Ireland‭ w‬ill in their Parliament approve it:‭ ‬but,‭ ‬if they will approve it,‭ ‬then it‭ s‬hall bind in Ireland.‭ ‬And Portington said,‭ ‬that if a‭ ‬tenth be granted in the Parliament of England,‭ ‬that‭ s‬hall not bind in Ireland,‭ ‬because they have not any‭ ‬commandment by writ to come to our Parliament‭; ‬and‭ ‬this was not denied by Markham,‭ ‬Yelverton,‭ ‬or Ascough.‭ ‬Upon this case these points following are‭ ‬to be observed:‭ ‬First,‭ ‬that the Lords of the Council‭ ‬of Ireland had then power,‭ ‬in the absence of the King,‭ ‬and‭ ‬vacancy of a Lieutenant or Deputy,‭ ‬to elect a Justice, and that is plainly proved by the preamble of the‭ ‬Statutes of‭ ‬33d of Hen.‭ ‬VIII. chap.‭ ‬2.‭ ‬in Ireland.‭ ‬The words are these‭; ‘‬For as much as continually‭ ‬fithens the conquest of this Realm of Ireland,‭ ‬it hath been used in this same Realm of Ireland,‭ ‬that at‭ ‬every such time,‭ ‬as it hath chaunced the same Realm‭ ‬to be destitute of a Lieutenant,‭ ‬Deputy,‭ ‬Justice,‭ ‬or‭ ‬other Head-Governour,‭ ‬by death,‭ s‬urrender,‭ ‬or departure out of the said Realm,‭ ‬or otherwise,‭ ‬the‭ ‬Council of this Realm of Ireland,‭ ‬for the time being,‭ ‬have used,‭ ‬by the laws and usages of the same,‭ ‬to assemble themselves together‭ ‬to choose and elect a‭ ‬justice,‭ ‬to be Ruler and Governor of this Realm,‭ ‬till‭ ‬the King's Highness‭ ‬had deputed and ordained a‭ ‬Lieutenant,‭ ‬Deputy,‭ ‬or other Governor,‭ ‬for the same Realm‭; ‬which justice,‭ s‬o being elected,‭ ‬was,‭ ‬and‭ ‬hath been,‭ ‬always,‭ ‬by the ancient laws and customs‭ ‬of this said Realm of Ireland,‭ ‬authorised to do and‭ e‬xercise the said roume of Deputy there,‭ ‬for the good‭ ‬rule and governance,‭ ‬and leading of the King's subjects within the said Realm of Ireland,‭ ‬and in ministration of Justice,‭ ‬with divers other authorities,‭ ‬pre-eminences,‭ ‬and jurisdictions,‭ ‬there‭; which usag‬e,‭ ‬election,‭ ‬and authority,‭ ‬of the said Justice‭; ‬hath‭ ‬been many times ratified and confirmed by divers‭ ‬Statutes in this Realm provided and made.‭ ‬But this order of election of a Justice is now,‭ ‬by the said Statute of 33d of Hen.‭ ‬VIII.‭ ‬altered‭; ‬as by the said Statute more at Large may appear.‭"
‭(‬9‭)"------- ‬et auxi quant a ceo que Fortescue ad dit,‭ ‬que,‭ s‬i un Disme soit grante en le Parliament icy,‭ ‬ceo ne liera ceux d'lreland‭; S‬eo‭ ‬veux bien pur ceo que‭ ‬ils n'ont commandment ove nous per breve de venir al’ Parliament.‭" Y‬ear-Book,‭ ‬19th Hen.‭ ‬VI.‭ ‬p.‭ ‬8.
‭(‬10‭) “A‬nd‭ ‬2d Rich.‭ ‬III.‭ ‬12."‭ (s‬ays he‭) “‬Hibernia habet Parliamentum,‭ ‬et faciunt leges,‭ ‬et nostra Statuta non ligant eos,‭ ‬quia non mittunt Milites ad‭ ‬Parliamentum,‭" (‬which is to be understood unless‭ ‬they be especially named,‭) “‬fed personae eorum sunt‭ s‬ubjecti Regis ficut habitantes in Calesia,‭ ‬Gasconia,‭ ‬et Guyan,” &c.‭ ‬Calvin's Case,‭ ‬7‭ ‬Rep.‭ ‬p.‭ ‬447.
(11‭) “‬Ratio Legis est anima Legis.‭" ‬Jenk.‭ ‬Cent.‭ ‬p,‭ ‬45.
‭(‬12‭) “1‬0‭ Octobris‬,‭ ‬Rex,‭ ‬affectans pacificum Statum terrae‭ ‬Hiberniae,‭ ‬mandavit Richardo de Burgo Com.‭ ‬Ulton.‭ ‬et aliis nobilibus terrae praedictae, quod sint ad Parliamentum fuum quod summoneri fecit apud Westm. in octabus sancti Hillarii prox. ad tractand.‭ ‬ibid,‭ ‬cum proceribus,‭ &‬c.‭ ‬regni sui super Statu terrae praedictae.‭" ‬Rot.‭ ‬Parl.‭ ‬8.‭ ‬E.‭ 2‬.‭ m. 31.
(13‭) ‬Rot. Parl.‭ ‬35. E.‭ ‬3.‭ ‬irrot.‭ sic‬.
Anno‭ ‬35.‭ ‬E.‭ ‬3.‭ ‬deconcilio summonit.‭ ‬pro‭ ‬terr.‭ ‬habentibus in Hibernia. Maria Comitissa Norf. ‭AEl‬ianora Comit.‭ ‬Orm. Jana la Despencer, Philippa Comitissa de‭ ‬la Marche, Johanna Fitzwater, Agnes Com.‭ ‬Penbroke, Margaretta de Roos,‭ Matildis Comitissa Oxoniae, Catharina Com.‭ ‬Athol.
ad mittendum si de dignos ad colloquium.
‭(‬14‭) ‬In the same page likewise,‭ (‬4th Inst.‭ ‬p.‭ ‬350.)‭ ‬Lord Coke has produced stiii more evidence to prove‭ ‬the Parliamentary Rights of the Irish Subjects;‭ ‬for he‭ ‬cites the Parliament-rolls of‭ ‬10th of Edw.‭ ‬II.‭ — “‬De Parliamentis singulis annis in Hibernia tenendis,‭ ‬et‭ ‬de legibus,‭ ‬et consuetudinibus ibidem emendandis‭;" ‬and he remarks therupon,‭ — "‬Hereby it appeareth,‭" ‬(says he,‭) "‬that there were Parliaments holden in Ireland‭ ‬before this time,‭ ‬and order taken at this Parliament,"‭ ‬(says he,‭) “‬that they should be‭ holden ‬every year,‭ ‬and‭ ‬the like Acts were made in England,‭ ‬in‭ ‬4th E.III. and‭ ‬36th E.‭ ‬III.‭ ‬for Parliaments to be holden in‭ ‬England‭;” s‬o that regular‭ annual‬ Parliaments were‭ ‬established in Ireland before they were in England‭!
‭(‬15‭) “‬Formerly" ‭(s‬ays Mr.‭ ‬Mollyneux‭) “‬when‭ ‬Ireland was but thinly peopled,‭ ‬and the English laws not fully current in all parts of the Kingdom, it is probable,‭ ‬that then they could not frequently‭ ‬assemble with conveniency or safety to make laws in‭ ‬their own Parliament at home‭; ‬and therefore,‭ ‬during the heats of rebellions,‭ ‬or 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,‭ ‬it is plain it‭ ‬was‭ s‬o in Edwuard the First’s turn‭; ‬Knights of the Shire, Citizens,‭ ‬and Burgesses, were elected in the Shires, Cities, and Boroughs of Ireland, to serve in Parliament‭ i‬n England;‭ ‬and have so served‭ ‬accordingly.‭ F‬or, amongst the records of the Tower of London,‭ ‬Rot.‭ ‬Claus.‭ ‬50.‭ ‬Edward the Third,‭ ‬Parl.‭ ‬2.‭ ‬Memb.‭ ‬23.‭ ‬we find a writ from the King at Westminster,‭ ‬directed to James Butler,‭ ‬Lord Justice of Ireland,‭ ‬and‭ ‬to R.‭ ‬Archbishop‭ of ‬Dublin,‭ ‬his Chancellor,‭ ‬requiring them to issue writs,‭ ‬under the great Seal of Ireland,‭ ‬to the several Counties,‭ ‬Cities,‭ ‬and Boroughs,‭ ‬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 John‭ ‬Draper,‭ ‬who was chosen Burgess of Cork by writ,‭ ‬and served in the Parliament of England,‭ ‬and yet‭ ‬was denied his expences by some of the Citizens,‭ ‬care was taken to reimburse him.
If,‭ ‬from these last-mentioned records,‭ ‬it be concluded that the Parliament of England may bind Ireland‭; ‬it must also be allowed,‭ ‬that the people of‭ ‬Ireland ought to have their Representatives in the‭ ‬Parliament of England.‭ ‬And this,‭ ‬I believe,‭ ‬we‭ s‬hould be willing enough to embrace‭; ‬but this is an‭ ‬happiness we can hardly hope for.
This sending of Representatives out of Ireland to‭ ‬the Parliament in England,‭ ‬on some occasions,‭ ‬was found in process of time to be very troublesome and‭ ‬inconvenient‭; ‬and this we may presume was the‭ ‬reason that,‭ ‬afterwards,‭ ‬when times were more‭ s‬ettled,‭ ‬we fell again into our old track and regular course of Parliaments in our own country‭; ‬and‭ ‬hereupon the laws aforenoted,‭ ‬page‭ ‬64,‭ ‬were enacted,‭ ‬establishing,‭ ‬that no law made in the Parliament‭ ‬of England should be of force‭ ‬in Ireland, till it was allowed and published in Parliament here."
‭(‬16‭) “‬Observations on the more ancient Statutes," &c.‭ ‬p.‭ ‬145.
‭(‬17‭) “‬There have been other Statutes or Ordinances,‭ ‬made in England for Ireland,‭ ‬which may reasonably be of‭ ‬force here,‭ ‬because they were made‭ ‬and‭ ‬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 Chancellor of Ireland,‭ ‬wherein he mentions‭ Qu‬adam Statuta per nos de Assenfu Prelatorum‭ ‬Comiturn Baronum & Communitates Regni nostri Hiberniae, nuper apud Lincoln‭ & ‬quaedam alia Statuta posimodum 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 aforementioned do shew:‭ ‬and,‭ ‬indeed,‭ ‬these are instances so far 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.‭"
‭(18) -------- “‬Add hereunto,‭" (s‬ays Sir William‭ ‬Petty in his Political Survey of Ireland,‭ ‬p.‭ ‬31.‭) “‬that‭ ‬if both Kingdoms‭ were‬ under one Legislative Power‭ ‬and Parliament, the Members whereof should he proportionable in power and‭ ‬wealth of each Nation,‭ ‬there‭ ‬would be no danger such a Parliament should do anything to the prejudice of the English interest in Ireland;‭ ‬nor could the‭ Irish ‬ever complain of partiality‭ ‬when they‭ s‬hall be freely and proportionably represented‭ ‬in all Legislatures."‭ ‬The same author has also made‭ ‬a very striking remark in p.‭ ‬97,‭ ‬concerning the necessity of maintaining the independence of the Legisative‭ ‬Power,‭ ‬whether we apply the‭ same‬ to Ireland,‭ ‬or to any‭ ‬other part of the British Empire‭; ‬for “why should‭ ‬men”‭ (s‬ays he‭) “‬endeavour to get estates,‭ ‬where‭ ‬the Legislative Power is not agreed upon,‭ ‬and where‭ ‬tricks and words destroy natural Rights and Property‭?"
‭(‬19‭) ‬The learned Editor of these two Tracts,‭ (‬Mr.‭ ‬Harris,‭) ‬who has published them in his Hibernica,‭ ‬(printed at Dublin in‭ ‬1770,‭) s‬uppofes,‭ ‬that Sir Richard Bolton was not the author of this Declaration,‭ ‬and‭ ‬informs us,‭ ‬in his Preface,‭ ‬that he is‭ “‬inclined rather to give the honour of the performance to Patrick‭ ‬Darcey,‭ ‬Esq.‭ ‬an eminent Lawyer and an active‭ ‬Member of the House of Commons in the Parliament‭ ‬assembled at Dublin in‭ ‬1640,‭" ‬who was the author‭ ‬of a simitar argument delivered by him at a conference with a Committee of the Irish Lords in‭ ‬1640‭ ‬(printed in‭ ‬1643‭)‬. “The conformity”‭ (s‬ays Mr.‭ ‬Harris‭) “‬between what is alledged in the Declaration,‭ ‬and in Darcy's Arguments,‭ ‬inclines me to think‭ ‬him the author of that paper.‭" ‬But a conformity in‭ s‬ubstance, between two authors,‭ ‬upon one and the same national question,‭ ‬is very far from affording so substantial a proof of the real author as the name of‭ Si‬r Richard Bolton upon one of the manuscripts.‭ ‬Probably the‭ ‬impeachment of Sir Richard Bolton‭ (‬in the same year‭) ‬of High-Treason,‭ ‬for betraying‭ (‬in his capacity of‭ ‬Chancellor of Ireland‭) ‬the Constitution of that country (A)‭ ‬,‭ ‬might be another reason for Mr.‭ ‬Harris's supposition‭; ‬but this very contrary behaviour,‭ ‬with which‭ ‬Sir Richard Bolton was charged,‭ ‬does not appear to‭ ‬have been so much the effect of his private opinion,‭ ‬as‭ ‬of his political time-serving,‭ ‬or yielding,‭ ‬with his brethren in Administration,‭ ‬to the arbitrary notions of Lord‭ ‬Strafford,‭ ‬the‭ (‬then‭) ‬Lord Lieutenant of Ireland;‭ ‬or‭ ‬perhaps the dangerous increasing power of the Papists‭ ‬at that time might occasion his thus yielding to measures‭ ‬which were so diametrically opposite to his own‭ ‬just principles; though indeed no danger whatever can‭ ‬justify such conduct,‭ si‬nce‭ “‬honesty is always‭" (‬most‭ ‬certainly‭) "‬the best policy.‭" ‬Nevertheless,‭ ‬not only Serjeant Mayart’s answer acknowledges Sir Richard‭ a‬s the author of the Declaration; but Mr.‭ ‬Mollyneux,‭ ‬in p.‭ ‬48‭ ‬and‭ ‬49,‭ ‬cites a marginal note of Sir Richard's,‭ (‬when he was Lord Chief Baron of the Exchequer in Ireland,‭) ‬which he had affixed in his Edition‭ ‬of the Irish Statutes,‭ ‬Stat.‭ ‬10‭ ‬Henry VII.‭ ‬c.‭ ‬22.‭ ‬to‭ ‬the following purport‭; ‬resembling the substance of the‭ ‬Declaration,‭ ‬attributed to Sir Rich.‭ ‬Bolton,‭ ‬much more‭ ‬than the argument of Mr.‭ ‬Darcy,‭ ‬viz,. “That in the‭ 1‬3th of Edward the Second,‭ ‬by Parliament in this‭ ‬Realm of Ireland,‭ ‬the Statutes of Merton,‭ ‬made the‭ ‬20th of Henry the Second,‭ ‬and the Statutes of Malbridge,‭ m‬ade the‭ 52n‬d 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 confirmed in this kingdom,‭ (‬Ireland‭;) ‬and all other Statutes,‭ which w‬ere of force in England,‭ we‬re referred to be examined in the next Parliament‭; ‬and so many as were then allowed and published,‭ ‬to stand likewise for Laws‭ ‬in this Kingdom.‭ 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 allowed and published in this Kingdom by Parliament.‭ ‬And the like‭ ‬Statute‭ w‬as made again in the 29th of Henry the Sixth. These Statutes are not to he found in the Rolls,‭ ‬nor any‭ ‬Parliament Roll of that time:‭ ‬but he‭ (‬Sir Richard‭ ‬Bolton‭) ‬had seen the same exemplified under the great‭ ‬Seal,‭ ‬and the exemplification remaineth in the Treasury of the city of Waterford.‭" ‬Mollyneux's Case of Ireland,‭ ‬pp.‭ ‬48‭ & ‬49.
‭(A) ‬Viz.‭ ‬for having‭ “‬traiterously contrived,‭ ‬introduced,‭ ‬and exercised an arbitrary and‭ ‬tyrannical Government,‭ ‬against Law, throughout this Kingdom,‭ (‬Ireland,‭) ‬by the countenance,‭ ‬and assistance,‭ ‬of Thomas Earl of‭ ‬Strafford,‭ ‬then Chief Governor of this‭ ‬Kingdom.‭" ‬See the 1st Article of Impeachment against Sir Richard Bolton and others,‭ ‬with‭ t‬he Speech of Mr.‭ ‬Audley Mervin on‭ ‬that occasion,‭ ‬taken from‭ Nels‬on's Collection of Papers,‭ ‬and re-printed at Dublin in 1764,‭ ‬at the end of Darcy's Argument.
‭(‬20‭) “‬But such Statutes,‭ ‬as have been made in‭ ‬England since the 11th of King John,‭ ‬and are introductory and positive, making new Laws,‭ ‬or any ways‭ ‬altering,‭ ‬adding unto,‭ ‬or diminishing the ancient Common Laws,‭ ‬have not been binding or any ways of‭ ‬force in Ireland,‭ ‬until such time as they have been‭ e‬nacted,‭ ‬allowed,‭ ‬and approved of,‭ ‬by Act‭ ‬of Parliament in Ireland‭; ‬as may appear by the Judgements of nine Parliaments holden there, viz.‭ ‬in the‭ ‬I7th of Edward II.‭ ‬in a Parliament in Ireland,‭ ‬the‭ ‬Statutes of Merton and Marlebridge,‭ ‬made in the‭ ‬time of Henry III.‭ ‬and the Statutes of Westminfter‭ 1st‬,‭ ‬and of Westminster‭ ‬2d,‭ ‬and the Statute,‭ ‬of‭ ‬Gloucester,‭ ‬made in the‭ ‬time of Edward I.‭ w‬ere‭ ‬confirmed‭ a‬nd approved to be of force in Ireland‭;‬ and all other Statutes,‭ ‬which were of force in England,‭ ‬were then referred to be examined in the next Parliament,‭ ‬and so many of them,‭ ‬as should be‭ ‬then allowed,‭ ‬and published,‭ ‬to be accepted for Laws in Ireland. And afterwards,‭ ‬in a Parliament holden in Ireland‭ ‬in‭ ‬19th of Edward II.‭ ‬it was enabled that the Statutes made in England should not be of force in the Kingdom of Ireland,‭ ‬unless they‭ ‬were allowed and published‭ ‬in that Kingdom by Parliament‭; ‬and the like Statute‭ w‬as made again in‭ ‬29th of Henry VI.‭ — ‬But these Statutes are not to be found in these parliament rolls,‭ ‬nor any parliament rolls at that time,‭ ‬but the same are‭ ‬exemplified under the great Seal,‭ ‬and the exemplifications‭ w‬ere remaining in the Treasury of the city of Waterford. And it is most certain,‭ ‬that not only these parliament rolls,‭ ‬but also many other rolls and records,‭ ‬miscarried in those troublesome and distempered‭ ‬times,‭ ‬which have been in Ireland:‭ ‬For in all the‭ ‬times of Edw.‭ ‬III.‭ — ‬Rich,‭ ‬II.‭ —‬Hen.‭ ‬IV.‭ — ‬and‭ ‬Hen.‭ ‬V.‭ ‬which is almost‭ ‬an hundred years,‭ ‬there is not any parliament roll to be found‭ ‬,‭ ‬and yet it is‭ ‬most certain,‭ ‬that divers Parliaments were holden in those times.‭ ‬Moreover in‭ ‬28th of Edw.‭ ‬I.‭— ‬5th of‭ ‬Edw.‭ ‬III.‭ —‬14th of Edw.‭ ‬IIL‭—‬25th of Edw.‭ ‬III. — 34th of Edw.‭ ‬III.‭— ‬and‭ ‬7th of Rich.‭ ‬II.‭ — ‬divers‭ ‬good laws were made in England by several Acts of‭ ‬Parliament against the extortions and oppressions of‭ ‬Purveyors‭; ‬which laws were never received,‭ ‬nor put into execution in Ireland,‭ ‬until the 18th of‭ ‬Hen.‭ ‬VI.‭ ‬chap.‭ ‬I.‭ ‬that it was enabled,‭ ‬agreed,‭ ‬and‭ ‬established by parliament in Ireland,‭ ‬that all Statutes made against Purveyors within the Realm of‭ ‬England should be holden and kept in all points,‭ ‬and‭ ‬put in execution in Ireland.‭ ‬Afterwards in‭ ‬the time of Edward IV.‭ ‬a doubt was conceived,‭ ‬whether the Statute made in England in‭ ‬6th of Rich.‭ ‬II.‭ ‬chap.‭ ‬5.‭ ‬concerning Rape,‭ ‬ought to be of force‭ ‬in Ireland without a confirmation thereof by Parliament:‭ ‬for the clearing of which ambiguity and doubt,‭ ‬in‭ ‬8th Edward IV.‭ ‬chap.‭ I‬.‭ ‬in Ireland,‭ ‬it was‭ ‬enabled,‭ ‬by authority of Parliament,‭ ‬that the said‭ ‬Statute of 6th of Richard W,‭ ‬be adjudged and proved in force and strength‭; ‬and that the Statute may be of‭ ‬force in this land of Ireland from the‭ ‬6th day of‭ ‬March then last past,‭ ‬and from thenceforth the said‭ ‬Act,‭ ‬and all other Statutes and Acts made by the authority of the said Parliament,‭ ‬within the Realm of England,‭ ‬be ratified and confirmed,‭ ‬and adjudged‭ ‬by the authority of Parliament in their force and‭ str‬ength from the said‭ ‬6th Day of March.‭ ‬So‭ ‬as until the said Statute of‭ ‬8th Edw.‭ ‬IV.‭ — ‬the said‭ ‬Statute of‭ ‬6th Rich.‭ ‬II.‭ ‬was not wholly of force in Ireland‭; ‬and that may appear by the words of the‭ s‬aid Statute of the‭ ‬8th of Edward IV.‭ — ‬For by the words thereof the said Statute of‭ ‬6th Rich.‭ ‬II.‭ ‬was‭ ‬to be of force from the‭ ‬6th of March thin last past, whereas,‭ ‬the said Statute of‭ ‬6th Rich.‭ ‬II.‭ ‬had been‭ ‬but a declaration or explanation of the Statute of Westminster‭ ‬2.‭ ‬chap,‭ ‬34.‭ it would have been of force at all times since ‬the making of the Statute of Westminster 2d.‭ ‬which‭ ‬was in‭ ‬13th Edw. I.‭ — — ‬But afterwards,‭ 10‬th Hen,‭ ‬VII.‭ ‬c.‭ ‬22.‭ ‬it was enacted in a Parliament in‭ ‬Ireland,"‭ (‬this is one of the Acts commonly called‭ ‬Poining’s Acts,‭) “‬that all Statutes then lately made‭ ‬within the said Realm of England,‭ ‬concerning or belonging to the common or public‭ ‬weale of the same,‭ ‬from thence forth should be deemed good and effectual in the‭ ‬law,‭ ‬and over that accepted,‭ ‬used,‭ ‬and executed‭ ‬within the land of Ireland at all times requisite,‭ ‬according to the tenor and effect of the same;‭ ‬and over that by the authority aforesaid,‭ ‬that they,‭ ‬and every of them,‭ ‬be authorised,‭ ‬proved,‭ ‬and confirmed in the said land of Ireland.
‭“‬By all which Statutes,‭ ‬made from time to time in‭ ‬Ireland,‭ it plainly appeareth‬,‭ ‬that all Statutes made in‭ ‬England before 10th Hen.‭ ‬VII.‭ ‬concerning or belonging to‭ ‬the public and commonwealth of England,‭ ‬are made to be‭ ‬of force,‭ ‬and to become laws in Ireland.‭ — ‬In‭ ‬21st Hen.‭ ‬VIII.‭ ‬chap.‭ ‬7.‭ ‬an Act was made in England,‭ ‬that makes it felony in a servant that runneth away with the goods of his master or mistress‭; ‬and‭ ‬this Act was not received in Ireland until the same‭ was enacte‬d by a Parliament holden in Ireland in‭ ‬33d‭ ‬Hen.‭ ‬VIII.‭ ‬Seff.‭ 1‬.‭ ‬chap‭ ‬5.‭— In ‬21st Hen.‭ ‬VIII.‭ ‬chap.‭ ‬19‭ — ‬There was a law made in England,‭ ‬that‭ ‬all Lords might distrain upon the lands of them‭ ‬holden for their rents and services,‭ ‬and to make their avowries,‭ ‬not naming the tenant,‭ ‬but upon the‭ ‬lands:‭ ‬but this law was not received in Ireland until it was enacted there in‭ ‬33d Hen.‭ ‬VIII. Seff.‭ 1‬.‭ ‬chap.‭ ‬7.‭ — ‬An Act was made in England in Anno‭ ‬31.‭ ‬Hen.‭ ‬VIII.‭ ‬chap.‭ 1‬.‭ ‬that joint-tenants,‭ ‬and tenants in common,‭ sh‬ould be compelled to make partition‭; ‬which Act was not received in Ireland until it was enacted there in‭ ‬33d Hen.‭ ‬VIII Seff.‭ 1‬.‭ ‬chap.‭ 1‬0.‭ — ‬In‭ ‬27th Hen.‭ ‬VIII.‭ ‬chap.‭ ‬10.‭ ‬the Statute of‭ ‬Uses was made in England,‭ ‬for transferring of Uses‭ ‬into possession‭; ‬which Statute was never received,‭ ‬nor of force in Ireland,‭ ‬till the same was enacted in Ireland,‭ 10‬th Car.‭ 1‬.‭ ‬chap.‭ ‬1.‭ — ‬So‭ likewise‬,‭ ‬32d‭ ‬Hen.‭ ‬VIII.‭ ‬chap.‭ 1‬.‭ ‬a Statute was enacted in England,‭ ‬whereby it is directed how lands and tenements may be disposed by will,‭ ‬and concerning wardship and primer seizins‭; ‬which Statute was never‭ ‬received,‭ ‬nor of force in Ireland,‭ ‬until it was enacted by Parliament in Ireland,‭ ‬in 10th Car.‭ 1‬.‭ ‬chap.‭ ‬2.‭ — ‬In Anno 1st Eliz.‭ ‬chap,‭ ‬5.‭ ‬there was an Act made in England for the uniformity of the Common-Prayer,‭ ‬and Administration of the Sacraments; which Act was not received in Ireland,‭ ‬until the same‭ ‬was confirmed and established by Parliament in Anno 2d Eliz.‭ ‬c.‭ ‬2.‭ — ‬In Anno‭ ‬5th Eliz.‭ ‬c.‭ ‬9.‭ ‬there was an‭ ‬Act of Parliament made in England for the punishment of wilful perjury‭; ‬which Act was not of force in Ireland until the same was enacted by a Parliament in Ireland,‭ ‬in‭ ‬28th Eliz.‭ ‬chap.‭ ‬1.‭ —‬Another‭ ‬Act was made in England in Anno‭ ‬3d Eliz.‭ ‬chap.‭ ‬12. for‭ ‬the punishment of witchcraft and sorcery,‭ ‬and‭ ‬another Act‭ ‬in the same year,‭ ‬chap.‭ ‬14.‭ ‬for the punishment of forgery‭; ‬which Acts were not of force‭ ‬in Ireland until the same were enacted by Parliament there,‭ ‬in‭ ‬28th Eliz.‭ ‬chap.‭ ‬2,‭ ‬3. ‭— ‬In‭ ‬28th‭ ‬Hen.‭ ‬VIII.‭ ‬chap.‭ ‬15.‭ ‬there was an Act made in‭ ‬England for the punishment of piracy‭; ‬which Act was not of force in Ireland until the same was enacted in Ireland in‭ ‬12th of James,‭ ‬chap.‭ ‬2.‭ ‬In‭ ‬27th of Eliz.‭ ‬chap.‭ ‬4.‭ ‬an Act‭ ‬was made in England against fraudulent conveyances,‭ ‬which Act was‭ ‬not offered,‭ ‬nor received in Ireland,‭ ‬until the same‭ ‬was enacted in Ireland,‭ 10‬th Car.‭ ‬I.‭ ‬chap.‭ ‬3.‭ —‬ Besides many other Acts made in the several reigns‭ ‬of Henry VIII.‭ — ‬Edward VI.‭ — ‬Queen Elizabeth,‭ — ‬King James,‭ — ‬and the King's Majesty who now is.‭ —‬In‭ ‬24th Hen.‭ ‬VIII.‭ ‬chap.‭ ‬12.‭ &‬c.‭ ‬an Act was made in England concerning appeals made to‭ ‬Rome,‭ ‬which Act doth by express‭ w‬ords extend to‭ ‬all his Majesty's dominions‭; ‬yet the same‭ was ‬not‭ ‬received,‭ ‬nor of force in‭ ‬Ireland,‭ ‬until it was enacted‭ ‬by Act of Parliament there in 28th Hep.‭ ‬VIII.‭ ‬chap.‭ 6 — ‬Also the Statute of‭ ‬28th Hen.‭ ‬VIII.‭ ‬chap.‭ ‬8.‭ ‬made in England concerning the first-fruits of the Clergy,‭ ‬extended by express words to any of the‭ ‬King's dominions‭; ‬yet the same was not received,‭ ‬or of force in Ireland,‭ ‬until it was enacted there by Parliament in‭ ‬28th Hen.‭ ‬VIII.‭ ‬chap.‭ ‬8.‭ ‬Likewise‭ ‬the‭ ‬the Act of faculties made in England‭ ‬25th Hen. VIII.‭ ‬chap.‭ ‬21.‭ ‬extended by express‭ word‬s to all the King's dominions‭; ‬yet the same‭ w‬as not received, or of force,‭ ‬in Ireland,‭ ‬until it was enacted‭ ‬by Parliament in Ireland,‭ ‬28th Henry VIII. chap,‭ ‬19.‭"
(21‭) ‬In this indiscriminate manner Monsieur Rapin has expressed himself,‭ ‬and has thereby given a‭ ‬wrong Idea of the Irish Legislature to such of his readers as do not care for the trouble of seeking better information‭; ‬for,‭ ‬in speaking of the two Statutes,‭ ‬commonly called Poining’s Acts, (after having mentioned that‭ ‬Act relating to the King's permission for assembling the‭ ‬Parliament,‭) ‬he adds,‭ “‬Un autre portoit que tous les‭ ‬Actes faits dans le Parliament d'Angleterre,‭ ‬concernant le Public,‭ s‬eroient observez en Irlande.‭ ‬Ces‭ ‬deux Statuts font encore en force aujourdui.‭" ‬Tome‭ ‬4.‭ ‬p.‭ ‬469.
‭(‬22‭) “‬And,‭ ‬Hil.‭ ‬10.‭ ‬Jacobi Regis,‭ ‬it was resolved,‭ ‬by the two Chief Justices and Chief Baron,‭ ‬that this word,‭ (‬late,) in the beginning of this act,‭ ‬had the sense of (before,) so that this Act,‭ ‬extended to Magna Charta,‭ ‬and to all Acts of Parliament made‭ ‬in England before this Act of 10.‭ ‬H.‭ ‬7.‭ ‬But it is‭ ‬to be observed,‭ ‬that such Acts of Parliament as have‭ ‬been made in England since‭ ‬10.‭ ‬H.‭ ‬7.‭ ‬wherein Ireland is not particularly named or generally included,‭ ‬extend not thereunto‭; ‬for that,‭ ‬albeit it be governed by the same law,‭ ‬yet is it a distinct Realm or‭ ‬Kingdome,‭ ‬and‭ (‬as hath been said‭) ‬hath Parliaments‭ ‬there.” 4.‭ ‬Inst.‭ ‬p.‭ ‬351.
‭(‬23‭) ‬See Sir Richard Bolton's Declarations, &c.‭ ‬in Harris's Hibernica,‭ ‬p. 15.
‭(‬24‭) “‬For the only mistake of‭ ‬Lord Coke is,‭ ‬that he conceived‭" (s‬ays he‭) “‬that Magna Charta was not of force in Ireland‭ ‘‬till the 10th of Hen.‭ ‬7.‭ ‬which is only a mistake of a matter of fact‭; ‬for in truth‭ ‬we find"‭ (‬continues the Serjeant‭) "‬that statute was given to them of Ireland in the first year of Hen.‭ ‬3.‭ ‬and all the Chapters thereof‭ (‬except‭ ‬three or four of the last Chapters‭) ‬are entered in the‭ ‬Red Book of the Exchequer of Ireland,‭ ‬where,‭ ‬in‭ ‬the beginning,‭ ‬after the King's stile recited,‭ ‬he‭ s‬aith,‭ ‬Imprimis concessimus Deo,‭ ‬et hac praesenti Charta noslra confirmamus pro nobis‭ & ‬haeredibus‭ ‬nostrisin perpetuum,‭ ‬quod Hibernica Ecclesia libera‭ ‬fit,‭ &c. - ‬First,‭ ‬we have granted to God,‭ ‬and‭ ‬by this our Charter,‭ ‬confirm,‭ ‬for us and our heirs for ever,‭ ‬that the Church of Ireland be free. - Sir John Davis cites a Record in the Tower,‭ 1st‬ of‭ ‬Hen.‭ ‬3.‭ ‬Memb.‭ ‬13.‭ ‬of the like Charter of Liberties‭ ‬granted by Hen.‭ ‬3.‭ ‬to his Subjects in Ireland, as himself and his Father had granted to the Subjects of England;‭ ‬but yet this mistake is only for that Coke was‭ ‬not informed of that matter of fact." Harris's Hibernica,‭ ‬pp.‭ ‬226,‭ ‬227.
‭(‬25‭) ‬For,‭ ‬the English Settlers carried their Rights‭ ‬with them,‭ ‬and the native‭ Irish ‬gladly accepted the English Common-Law,‭ ‬as soon as it was tendered to them‭ ‬by the English Conquerors,‭ ‬of which I have produced‭ ‬ample testimony in a Note on page 108.‭ s‬o that their just‭ ‬title to English Liberty and all the legal Immunities of‭ ‬the Conquerors was clearly established and confirmed‭ by ‬this Irish Magna Charta. - They were very soon‭ ‬afterwards,‭ ‬indeed,‭ ‬wickedly excluded from these equitable Privileges by the inconsiderate English Settlers; many‭ of ‬whom,‭ ‬for the sake of tyrannizing over their‭ ‬poor neighbours,‭ ‬even degenerated‭ (‬as Sir John Davies‭ ‬informs us in p.‭ ‬32.‭) ‬into the lawless Irish‭ ‬manners‭ ‬themselves,‭ ‬adopting the old Irish oppressions of Tanistry,‭ ‬Cosherings,‭ ‬Cuttings,‭ ‬Seffings,‭ ‬Coigne and‭ ‬Livery,‭ &‬c,‭ ‬under which most wicked (B)‭ ‬pretences they devoured the poor Natives as well as the poorer sort of‭ ‬English Settlers,‭ ‬and thereby occasioned almost continual Wars for several ages; which,‭ ‬in the end,‭ ‬turned‭ ‬out to their own great peril and disadvantage,‭ ‬according to the never-failing maxim,‭ ‬or rather warning,‭ ‬of‭ ‬the Apostle Paul‭; “If ye bite and devour one another, take heed ‬that ye be not consumed one of another."‭ ‬Gal.‭ ‬V.‭ ‬15.‭ ‬But,‭ ‬though the Irish were,‭ ‬by this‭ ‬wretched Policy of the English,‭ ‬long deprived of the‭ ‬Benefit of the English Common-Law,‭ ‬yet this by no‭ ‬means deprived them of their just‭ ‬Right or Claim to it, which must necessarily be acknowledged to have been‭ ‬due from the time that the English first settled in that‭ ‬Country.
‭(B) ‬These most wicked oppressions originally sprang from the undue‭ ‬Power and unlimited Sway of the ancient Irish Chieftains,‭ ‬or Lords,‭ ‬over their poor brethren‭; ‬but I must refer my Readers,‭ ‬for a particular description of them,‭ ‬to Sir John Davies,‭ ‬who has amply set forth‭ ‬the gross injustice and pernicious effect‭ ‬of such unlimited power in‭ ‬men; nevertheless I am tempted to cite,‭ ‬by way of sample,‭ ‬what he‭ ‬has mentioned in one place concerning the wickedness of Coigne and Livery in particular:‭ ‬for,‭ ‬in shewing the ill effects of English Degeneracy,‭ ‬he remarks,‭ ‬in p‭ ‬33.‭ "‬By this‭" (s‬ays he‭) "‬it appeareth why‭ ‬the extortion of Coigne and Livery is called,‭ ‬in the old Statutes of‭ ‬Ireland,‭ ‬a damnable Custome,‭ ‬and the imposing and taking‭ ‬thereof made‭ High-Treason. ‬And it is said,‭ ‬in an antient Discourfe‭" (s‬ays he‭) "‬of the Decay of Ireland‭ ‬,‭ ‬that,‭ ‬though it were first invented in Hell,‭ ‬yet,‭ ‬if it had been used and practised there as it hath‭ ‬been In Ireland,‭ ‬it had long since destroyed the very Kingdom of‭ ‬Beelzebub.‭" ‬The same bad effects are produced,‭ ‬in some degree,‭ ‬by every kind of Vassalage; so that the bad Policy of establishing Seigneuries in Canada,‭ o‬r elsewhere,‭ ‬is but too apparent.
‭(‬26‭) ‬2d Inst.‭ ‬p.‭ ‬2.
‭(‬27‭) ‬Serjeant Mayart also informs us,‭ “‬That the whole Realm of Ireland was anciently reduced into‭ ‬Counties,‭ ‬and that the English Laws had passage‭ ‬throughout the same,‭ ‬as appears"‭ (s‬ays he‭) ‬by several Pipe-Rolls of the time of Hen.‭ ‬3.‭ ‬in the Exchequer of Ireland,‭ ‬where there are accounts‭" (s‬ays‭ ‬he‭) “‬made for fines,‭ ‬paid by the mere Irish,‭ ‬for Diffeisins,‭ ‬and many other kinds of Trespasses,‭ ‬committed by them in those places,‭ ‬which the Author‭ ‬calls Irish Territories‭; ‬though some of the Irish, with their posterity after them,‭ ‬being always averse to the English Laws,‭ ‬could not digest them,‭ ‬but hid‭ ‬themselves in the bogs,‭ ‬mountains,‭ &c‬.‭" ‬But this‭ ‬aversion of‭ "s‬ome of the Irish"‭ ‬to the English Laws is‭ ‬easily accounted for,‭ s‬ince it appears very clearly,‭ ‬from‭ ‬Sir John Davies's Book,‭ ‬that the Irishry had much‭ ‬more experience and woful knowledge of English Oppression than of the English Laws‭; ‬for,‭ ‬when any of‭ ‬them were driven from their Lands and Possessions‭ ‬through the avarice,‭ ‬and by the unlawful power,‭ ‬of the‭ ‬great English Lords,‭ ‬who found their interest in treating them as enemies,‭ ‬it was very natural for them to attempt to diffeize,‭ ‬and recover their former Rights and‭ ‬Possessions:‭ ‬and again,‭ ‬when they found no Protection‭ ‬from the English Laws,‭ ‬nor other exertion thereof than‭ ‬that of fining and punishing them for such‭ "‬Diffeisins,‭' &‬c.‭ ‬which were mere Re-entries, it was equally natural‭ ‬for them to imbibe prejudices against the English Laws,‭ ‬and to fly to their Bogs,‭ &‬c.‭ ‬Thus the English Oppressions were apparently the cause why some of the Irish‭ ‬were averse to the English Laws‭; ‬which I have expressed‭ ‬more at large in a Note on p.‭ 10‬8.
‭(‬28‭) ‬Case of Ireland,‭ ‬p.‭ ‬96.‭ "It ‬has ever been acknowledged that the Kingdom of Ireland is inseparably annexed to the Imperial Crown of England,‭ ‬The obligation that our Legislature lies under by Poining's‭ ‬Act,‭ ‬10‭ ‬Hen.‭ ‬VII.‭ ‬c.‭ ‬4,‭ ‬makes this Tye between the‭ ‬two Kingdoms indissoluble.‭ ‬And we must ever own‭ ‬it our happiness to be thus annexed 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 King's Title thereto,‭ ‬and the Power and Jurisdiction 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 Anne‭; ‬and another,‭ ‬chap.‭ ‬5,‭ ‬declaring the King to be supreme Head of the Church‭ ‬of Ireland; both which Acts had formerly passed in‭ ‬the Parliament of England.‭ ‬So likewise we find,‭ ‬amongst the Irish Statutes,‭ Acts ‬of Recognition of the‭ ‬King’s‭ ‬Title to Ireland,‭ ‬in the reigns of Henry VIII.‭ ‬Queen Elizabeth,‭ ‬King James,‭ ‬King Charles II.‭ ‬King William and Queen Mary.‭ ‬By which it appears,‭ ‬that Ireland,‭ ‬though annexed to the Crown‭ ‬of England,‭ ‬has always been looked upon to be a kingdom complete‭ w‬ithin itself and to have all Jurisdiction to an absolute Kingdom belonging,‭ ‬and subordinate to no legislative authority on Earth: Though,‭ ‬it is to be noted,‭ ‬these English Acts,‭ ‬relating‭ ‬to the succession,‭ ‬and recognition of the‭ ‬King's Title,‭ ‬do particularly name Ireland."‭
See also page‭ ‬33,‭ ‬where the same author speaks of‭ “‬Ireland's being annexed to, and,‭ ‬as it were,‭ ‬united‭ with‬ the imperial Crown of England,‭ ‬by several‭ ‬Acts of Parliament,‭ ‬both in England and Ireland,‭ s‬ince King John's time.‭ ‬But,‭ ‬how far this operates,‭ ‬I shall enquire more fully hereafter‭; ‬I shall only,‭ ‬at present,‭ ‬observe,‭ ‬that I conceive little more is‭ e‬ffected,‭ ‬by these statutes,‭ ‬than that Ireland shall‭ ‬not be aliened or‭ separated‬ from the King of England,‭ ‬who cannot hereby dispose of it otherwise than‭ ‬in legal succession along with England‭; ‬and that‭ ‬whoever is‭ King ‬of England is, ipso facto, King of Ireland, and the subjects of Ireland are obliged to‭ ‬obey him as their liege Lord.”
‭(‬29‭) ‬Sir Edward Coke himself bears ample testimony to this.‭ — “‬Our student must know‭" (s‬ays‭ ‬he‭) “‬that King John,‭ ‬in the 12th year of his reign,‭ ‬went into Ireland,‭ ‬and there,‭ ‬by the advice of grave and learned men in the Laws,‭ ‬whom he carried with him,‭ ‬by Parliament,‭ ‬de communi omnium de Hybernia consensu,‭ ‬ordained and‭ ‬established,‭ ‬that Ireland should be governed by the‭ ‬Laws of England, which,‭ ‬of many of the‭ Irish-men," ‬(for the common consent before-mentioned must mean that‭ ‬of the English settlers,‭) "‬according to their own desire,‭ w‬as joyfully accepted and obeyed, and of many the‭ s‬ame was soon after absolutely refuted,‭ ‬preferring‭ ‬their Brehen Law before the just and honourable‭ ‬Lawes of England." 1st Inst.‭ ‬p.‭ ‬141.
But this subsequent refusal,‭ ‬and preference given to‭ ‬the Brehen Law, mull not be charged to the native‭ ‬Irish in general‭; ‬for Sir John Davis,‭ ‬in his‭ “‬Discoverie of the true causes why Ireland was never entirely subdued,‭" &‬c.‭ ‬demonstrates that‭ the ‬English Settlers were principally to be blamed for this.‭ ‬He‭ s‬hews,‭ (‬p.‭ ‬135,‭) ‬that‭ “‬the scopes of land,‭ ‬which‭ ‬were graunted to the first adventurers,‭ we‬re too large,‭ ‬and the Liberties and Royalties,‭ ‬which they obtained‭ ‬therein,‭ we‬re too great for subjects.” ‭— ‬And,‭ ‬in‭ ‬p.‭ ‬144,‭ ‬that,‭ ‬by‭ “t‬hese Grants of whole provinces and‭ ‬petty kingdoms,‭ ‬those few English Lordes pretended to‭ ‬be proprietors of all the land,‭ s‬o that‭ ‬there was no possibility left of settling the natives in‭ ‬their‭ ‬possessions, and,‭ ‬by consequence,‭ ‬the conquest‭ ‬became impossible,‭ ‬without the utter extirpation of‭ ‬all the Irish‭; ‬which these English Lordes were not‭ ‬able to doe,‭ ‬nor perhaps willing, if they had been‭ ‬able.‭" ‬This he afterwards explains,‭ shew‬ing that‭ ‬false notions of private interest,‭ ‬among the English‭ ‬Lords,‭ ‬prevented both the conquest,‭ ‬and the introduction of the English Law:‭ ‬They‭ ‬hoped to become‭ ‬Lords of these lands which were possessed by the‭ ‬Irish,‭ ‬whereunto they pretended title by their large Grants,"&c,‭ (‬p.‭ ‬144.‭) ‬and that therefore‭ "‬they persuaded the King of England‭ (‬p.‭ ‬145‭) ‬that it was‭ ‬unfit to communicate the Lawes of England unto them‭; ‬that it was the best policie to holde them as aliens‭ ‬and enemies,‭ ‬and to prosecute them‭ ‬with a continual‭ w‬arre.‭ ‬Hereby they obtained‭" (s‬ays he‭) “‬another royal Prerogative and power‭; ‬which was,‭ ‬to‭ ‬make Warre and Peace at their pleasure,‭ ‬in every part‭ ‬of the kingdom‭; ‬which gave them an absolute command over the bodies,‭ ‬lands,‭ ‬and goods,‭" (‬even‭) “o‬f the English Subjectes heere‭;" ‬meaning in Ireland,‭ ‬where he wrote.‭ ‬And he adds,‭ ‬in the same‭ ‬page,‭ “‬And besides"‭ (s‬ays he‭) "‬the Irish inhabiting the lands fully conquered and reduced,‭ ‬being‭ ‬in condition of slaves and villaines,‭ ‬did render a greater profit and revennew, than if they had been made‭ the King’s‬ free subjects.‭ ‬They also feared‭" (‬as he declares in the preceding page‭) "‬that,‭ ‬if the Irish were received‭ ‬into the King's protection and made liege-men and free-subjectes,‭ ‬the‭ ‬State of England woulde‭ ‬establish them"‭ (‬or rather re-establish them‭) “‬in‭ ‬their possessions by Graunts from the Crown,‭" &c‬.‭ ‬And‭ "‬The troth is‭" (s‬ays he,‭ ‬in p.‭ ‬146.) “that‭ ‬those great English Lords did,‭ ‬to the uttermost of their power,‭ ‬crosse and withstand the enfranchisement of the Irish,‭ ‬for the causes before expressed.‭" — ‬And he rightly lays‭ ‬the fault upon the pride,‭ ‬covetousness,‭ ‬and ill-counsell of the English planted heer, which in all former ages‭" (s‬ays he‭) "‬have‭ ‬bin the chief impediments of the final conquest of Ireland.‭"
On the other hand,‭ ‬he clearly exculpates the native Irish from the charge of wilfully refusing to be subject‭ ‬to the Laws of England.‭ "‬But perhaps‭" (s‬ays he,‭ ‬in p.‭ ‬115‭) "‬the Irishry in former times did wilfully‭ ‬refuse to be subject to the Lawes of England,‭ ‬and‭ ‬would not be partakers of the benefit thereof,‭ ‬though‭ ‬the Crown of England did desire it‭; ‬and therefore‭ ‬they were reputed Aliens,‭ ‬Out-lawes,‭ ‬and Enemies.‭ A‬ssuredly the contrarie doth appeare,‭ ‬as‭ ‬wel by the Charters of Denization,‭ ‬purchased by‭ ‬the Irish in all Ages,‭ ‬as by a petition preferred‭ ‬by them to the King,‭ ‬anno‭ ‬2‭ ‬Ed.‭ ‬III.‭ ‬desiring that‭ ‬an Act might passe in Ireland,‭ ‬whereby all the‭ ‬Irishrie might be inabled to use and injoy the‭ ‬Lawes of England,‭ ‬without purchasing of particular Denizations.”
And, in p.‭ ‬117,‭ he ‬adds:‭ — “‬I am well assured,‭ that the Irishrie‬ did desire‭ to‬ he admitted to the‭ ‬benefit of the Law,‭ ‬not only in this petition‭ exhibited ‬to King Edw.‭ ‬Ill,‭ ‬but by all their submissions made to King Richard‭ II‬.‭ ‬and to the Lord Thomas‭ ‬of Lancaster,‭ ‬before die wanes of the two Houses; and afterwards to the Lord Leonard Gray and Sir Anthony St.‭ ‬Leger,‭ ‬when K. Henry VIII began to‭ ‬reform this kingdom.‭ ‬In particular,‭ ‬the Birnes of the‭ ‬Mountaines,‭ ‬in the‭ ‬34th of Hen.‭ ‬VIII.‭ ‬desire that their countrey might be made Shire-ground, and called the County of Wicklow:‭ ‬And,‭ ‬in the‭ ‬23d of Hen.‭ ‬VIII.‭ ‬O.‭ ‬Donnel doth covenant with‭ ‬Sir William Skeffington,‭ Quod si‬ Dominus Rex‭ velit‬ reformare Hiberniam,” ‭(‬whereof,‭ ‬it should seem,‭ ‬he‭ ‬made some doubt,‭) “‬that hee and his people would‭ ‬GLADLY bee‭ ‬governed by the Lawes of England."
These quotations sufficiently demonstrate the willingness of the native Irish to adopt the English Laws‭ ‬and Constitution,‭ ‬and that the denial of such a reasonable desire was the just cause of their almost continual‭ ‬rebellions and bloody wars against the English Settlers.‭ ‬However,‭ ‬in the Reign of King James I.‭ ‬the Irishry‭ ‬were restored to their just Rights,‭ “‬and the benefit‭ ‬and protection of the Law of England communicated TO ALL,‭ ‬AS WELL IRISH AS ENGLISH,‭ ‬WITHOUT DISTINCTION OR RESPECT OF PERSONS,‭" &c. (‬p.‭ ‬264.‭) ‬And Sir John Davies himself was one‭ ‬of the Judges employed in that most grateful business‭ ‬to a benevolent man‭; ‬I mean the Visitations of justice,‭ ‬whereby the just and honourable Law of‭ ‬England was imparted and communicated to all the Irishry,"‭ (‬P.‭ ‬265.‭) ‬And he informs us,‭ ‬in the‭ s‬ame page,‭ ‬that‭ "‬the common people were taught,‭ ‬by‭ ‬the Justices of Assize,‭ ‬that they‭ ‬were FREE SUBJECTS‭ ‬to the Kings of England,‭ ‬and not Slaves and‭ ‬Vassals to their pretended Lords:‭ ‬That the Cuttings, Cosheries,‭ ‬Sessings, and other extortions of‭ ‬their Lords,‭ ‬were unlawful,‭ ‬and that they should not any more submit themselves thereunto,‭ s‬ince they were now under the protection of so just and mighty a Prince,‭ ‬as both would and could protect‭ ‬them from all wrongs and oppressions.‭ ‬They gave"‭ ‬(says he‭) “‬a willing ear unto these lessons‭; ‬and‭ t‬hereupon the greatnesse and power of those Irish‭ L‬ords over the people sodainly fell and vanished,‭ ‬when their oppressions and extortions were taken‭ ‬away,‭ ‬which did maintain their greatness,” &c. In p.‭ ‬262,‭ ‬he informs us,‭ ‬that Sir Edmond Pelham‭ ‬and himself were‭ “‬the first Justices of Assize that ever‭ s‬at in those countries;” ‭(s‬peaking particularly of Tyrone and Tirconnell‭;) “‬and in that circuit‭" (s‬ays‭ ‬he‭) “‬we visited all the shires of that province:‭ ‬besides which,‭ ‬visitation,‭ ‬though it were somewhat distastfull to the Irish Lords,‭ w‬as sweet and most welcome to the common people;‭ ‬who,‭ ‬albeit they were‭ ‬rude and barbarous,‭ ‬yet did they quickly apprehend‭ ‬the difference betweene the tiranny and oppression‭ ‬under‭ ‬which they lived before,‭ ‬and the just government and protection which we promised unto them‭ ‬for the time to come.‭"
Thus the common people oi the Irishry were at length‭ ‬restored to that equality,‭ ‬in the eye of the law,‭ ‬to‭ ‬which they were justly entitled‭ (‬though shamefully‭ ‬deprived of it‭) ‬from the earliest time that the English‭ ‬began to be known in that kingdom,‭ ‬even from the‭ ‬first establishment of the English Conquerors‭; ‬for Sir‭ ‬John Davies shews,‭ ‬from Matthew Paris's History,‭ ‬that‭ “K‬ing Henry II.‭ be‬fore his return out of Ireland, held a Counsell,‭ ‬or Parliament,‭ ‬at Lissemore,‭ ‬where the Laws of England were,‭ ‬By all, willingly‭ ‬received; ubi leges Angliae ab omnibus sunt gratanter receptae,‭ ‬et juratoria cautione praestita confirmatae; p,‭ 100‬.‭ ‬And he informs us,‭ ‬in the next‭ ‬page,‭ ‬that‭ "‬King Henrie the Third did graunt and‭ ‬transmit the like Charter of Liberties to his subjects of‭ ‬Ireland,‭ ‬as himself and his Father had grauntcd to‭ t‬he Subjects of England,‭ ‬as appeareth‭" (s‬ays he‭) “‬by another Record in the Tower,‭ 1‬ Hen.‭ ‬III.‭ ‬Pat.‭ ‬m‭ ‬13.‭" ‬And he cites also a writ of the 12th‭ ‬year of the same King,‭ ‬commanding the Lord Justice‭ o‬f Ireland to cause the Charter of King John to be read‭ ‬and confirmed by Parliament‭; ‬and again,‭ ‬that‭ “‬the‭ s‬ame King,‭ ‬by Letters Patent under the Great-Seal of England,‭ ‬did confirme‭ ‬the establishment of the English Laws made by King John,‭" ‬and that all Writs‭ ‬of the Common-Law‭ s‬hould have course there as in England‭ — “Quod ‬OMNIA brevia‭ de ‬communi jure,‭ ‬quae currunt in Anglia,‭ s‬imiliter currant in Hibernia," &c. Thus it appears,‭ ‬that all‭ Irish ‬Subjects,‭ ‬without‭ ‬distinction,‭ ‬are entitled,‭ ‬according to the clearest and‭ ‬most unquestionable testimony,‭ ‬to all the Rights,‭ ‬Immunities,‭ ‬and Advantages,‭ ‬of Magna Charta and‭ ‬the English Common-Law.
‭(‬30‭) ‬The late Act,‭ ‬for establishing the Laws of‭ ‬France in the most extensive Province of the British‭ ‬Empire,‭ ‬must indeed seem very strange and unnatural to the genius of Englishmen in general‭; ‬especially when we consider that even the French inhabitants of that Province themselves are zealous for the‭ “P‬rivileges of English Subjects‭;" ‬which plainly appears by some Expressions in their late Address to the‭ ‬Governor on that occasion:‭ ‬and we may,‭ ‬therefore,‭ ‬rest assured that they are not,‭ ‬in general,‭ s‬o ignorant,‭ ‬and void of common-sense,‭ ‬as really to prefer the‭ ‬Laws of France to the equitable Constitution of England,‭ ‬howsoever they may have been misrepresented.‭ ‬We must,‭ ‬nevertheless,‭ ‬except a few French Seigneurs,‭ ‬who,‭ ‬having already been allowed greater exclusive Privileges than are consistent with the safety and freedom‭ ‬of their poor neighbours and fellow-subjects,‭ ‬would‭ ‬rather wish to promote the French Laws and Customs‭ ‬(which permit such an unjust Vassalage‭) ‬than the equitable Laws of‭ ‬England:‭ ‬and we may likewise except‭ ‬the Priests,‭ ‬and some other absolate Bigots to the Romish Religion,‭ ‬who,‭ ‬being entangled in the Slavery of‭ antichristian‬ Principles and‭ "‬the‭ ‬Doctrines of Devils,"‭ ‬are ready to submit to any temporal conditions whatsoever for the fake of that spiritual,‭ ‬or rather Satanical,‭ ‬Bribe,‭ ‬which was wickedly thrown out to them on this‭ ‬occasion:‭ ‬I mean the setting up their adulterated Religion as the established Church of that Province‭ (‬with a‭ ‬legal‭ ‬Right to collect Tythes,‭ &‬c.) by national authority.‭ ‬This was the more unjust and inexcusable,‭ ‬because the Romanists had no reason to complain of that Toleration which they so freely enjoyed before.‭ ‬In a note‭ ‬on p.‭ ‬125,‭ ‬where I have occasion to mention the defects of some supposed Statutes,‭ ‬I have added some examples‭ (‬which naturally occurred thereupon‭) ‬concerning the abominable Tyranny and Wickedness of the‭ ‬adulterous Church of Rome‭; ‬and these,‭ ‬I trust,‭ ‬will‭ s‬ufficiently justify the severity of my expressions against‭ ‬that antichristian Church.‭ ‬See also my‭ "‬Remarks on several very important Prophecies,‭" ‬part‭ ‬2,‭ ‬p.‭ ‬18,‭ ‬and part‭ ‬4,‭ ‬p.‭ ‬34.
(31‭) “‬Si veut le Roy,‭ ‬fi veut le Loi.‭" ‬The King's‭ ‬Will is Law‭! ‬Some of the pernicious effects of this detestable maxim I have already shewn in my Preface.
‭(‬32‭) ‬This was the uniform Doctrine of all the antient constitutional Lawyers of England,‭ ‬and especially of the great Chancellor Fortescue,‭ ‬whose opinion I have expressly quoted,‭ ‬and added some farther‭ ‬observations upon the same point,‭ ‬in a Note on page‭ ‬7‭ ‬of this Declaration,‭ ‬Part I.
‭(‬33‭) ‬This Sentence contains an implied acknowledgement that a Law made in England,‭ ‬relating to the‭ ‬Government of‭ ‬Ireland,‭ ‬may be “repealed by an Irish‭ ‬Act of Parliament‭;" ‬and,‭ ‬if this be allowed,‭ (‬which‭ ‬it certainly ought to be,‭) ‬there can be no room to suppose the Irish Subjects bound by an English Act “if‭ ‬Ireland is mentioned;”‭ ‬for,‭ ‬wherein is the force or‭ ‬binding of the English Act if the Irish are allowed a‭ ‬Right to repeal it‭? ‬Such binding amounts to nothing:‭ ‬we may as well say that an English Act binds the Emperor of Morocco and his Subjects,‭ ‬or the wild Arabs,‭ “w‬hen especially named," since it can bind no longer‭ ‬than while they shall be willing to submit to it‭! ‬But,‭ ‬that the Irish Subjects really have a Right to repeal‭ an ‬English Act relating to their own internal Government,‭ ‬(if we may with propriety apply the word repeal to‭ ‬Acts‭ ‬that were originally defective and void for want‭ ‬of the Irish assent,‭) ‬is clearly proved by Mr.‭ ‬Mollyneux,‭ ‬in his Case of Ireland, Page‭ ‬76.
‭(‬34‭) ‬Here the Hen.‭ ‬Mr.‭ ‬Barrington confirms what‭ is‬ before laid down in pages‭ ‬91‭ ‬and‭ ‬92, concerning‭ ‬the effect of Poining's Law.
‭(‬35‭) ‬The Hon.‭ ‬Mr.‭ ‬Barrington,‭ ‬in p.‭ ‬41,‭ ‬very justly remarks,‭ ‬concerning the Statute of Merton,‭ ‬in the‭ ‬20th year of Hen.‭ I‬II.‭ ‬that the said‭ S‬tatute,‭ ‬as well‭ ‬as many others of this century,‭ s‬eems to be only‭ ‬an Ordinance‭; ‬the difference‭" (s‬ays he‭) “‬between‭ ‬an Ordinance and Statute‭ (‬according to Sir Edward‭ ‬Coke‭) ‬confiding in this,‭ ‬that the Ordinance wants‭ ‬the consent of one component part of the Legislature,‭ ‬which is,‭ ‬in all instances,‭ ‬that of the Commons.”‭ ‬Now,‭ ‬this seems to be exactly the case of the Act in‭ ‬question of the‭ ‬21st of Edw,‭ ‬I.‭ ‬de malefactoribus in‭ ‬Parcis;‭ ‬for,‭ ‬though the Act itself declares that it was‭ ‬ordained by the King‭ “‬at his Parliament,‭" (a) ‬and‭ “a‬t the instance of the Nobles of his realm,” yet the‭ ‬assent of the Commons is not expressed‭; ‬which was very‭ ‬well known,‭ ‬even at that‭ ‬time,‭ ‬to be necessary,‭ ‬as‭ ‬the assent expressed in the Acts of the preceding year‭ s‬ufficiently demonstrates‭; viz. “‬Our Lord the King,‭ ‬in his full Parliament,‭ ‬and by his common Council,‭ ‬hath‭ ‬ordained," &c.‭ ‬Statute de defensione juris,‭ ‬20‭ ‬E.‭ ‬1.‭ ‬Again,‭ ‬in the Statute of Vouchers,‭ “‬By his common‭ ‬Council‭ ‬hath ordained,‭" &‬c.‭ ‬Again,‭ ‬in the Statute‭ ‬of Waste,‭ “‬Our Lord the King,‭ ‬in his full Parliament,‭ ‬holden,‭ &c‬.‭ ‬by a general Council hath ordained‭;" s‬o that a proper Form of declaring the‭ ass‬ent of the Commons,‭ ‬even at that time,‭ ‬was very‭ ‬well established,‭ ‬notwithstanding that many Statutes‭ ‬are deficient therein,‭ ‬and consequently are exceptionable in point of authority‭; ‬as,‭ ‬for instance,‭ ‬the Statute de Escheatoribis, of the‭ ‬29th year of this reign,‭ s‬eems to be thus defective‭; ‬for though it is dated very‭ s‬peciously, ‭(‬like the Acl in question,‭ d‬e malefactoribus‭ ‬in Parcis,‭) “‬at the Parliament of our Lord the King‭ ‬at Lincoln,‭" &‬c.‭ ‬yet it seems only to have been‭ ‬agreed to by the Privy-Council,‭ ‬or the King's Council‭; — "b‬y his Council it was agreed,‭ ‬and also‭ ‬commanded by the King himself‭" (‬er Consilum‭ ‬Regis concordatum eft coram Domino Rege,‭ ‬ipso‭ ‬Rege consentiente et illud extunc fieri et observari‭ ‬precipiente,‭" &‬c.‭) — s‬o that it was apparently enacted and ordained only by the King and his Council‭ ‬without the least mention of the Consent of the Parliament,‭ ‬or of the common Council of the Kingdom,‭ ‬and‭ s‬eems therefore to have been a mere Order in Council,‭ ‬though artfully dated,‭ “‬at the Parliament,"‭ ‬in order‭ ‬to give it the appearance of Law.‭ ‬Sir Edward Coke,‭ ‬in his‭ ‬4th inst.‭ ‬p.‭ ‬51,‭ ‬gives several instances of supposed Statutes that had been repealed or disaffirmed,‭ ‬(wanting the Assent of the Commons,‭) ‬which were nevertheless published and enforced as real Statutes;‭ viz. ‬5‭ ‬R.‭ ‬II. c.‭ ‬5.stat.‭ ‬2,‭ ‬touching enquiries of Heresies,‭ ‬and‭ ‬2 H.IV. c.‭ ‬15,‭ ‬against pretended Heretics,‭ ‬giving power to the Bishop,‭ ‬or Ordinary,‭ "‬to convent before him or imprison any person suspected of Heresie,"‭ ‬and ordaining‭ (‬contrary to the Laws of God‭) ‬that “an obstinate Heretick‭" (‬or any person whom an ignorant popish Enthusiast was pleased to call so‭) “s‬hall‭ ‬be burned before the people‭;" ‬both which,‭ ‬as Sir‭ ‬Edward Coke remarks,‭ ‬were disavowed by the Commons,‭ ‬and‭ (‬yet‭) ‬the pretended Acts printed‭ (‬4‭ ‬inst.‭ ‬p. 51,‭ ‬and 3 inst.‭ ‬p.‭ ‬40‭ ‬and‭ ‬41‭)‬.‭ ‬Also‭ ‬2‭ ‬Hen.‭ ‬V.‭ ‬cap,‭ ‬7,‭ ‬(which Sir Edward Coke,‭ ‬by mistake,‭ ‬calls cap.‭ ‬6,‭) “‬against Preachers‭ (‬was‭) ‬disavowed the next Parliament by the Commons,‭ ‬for that they never assented, and yet the supposed Act‭ (‬was‭) ‬printed.”‭ (‬4‭ ‬Inft.‭ ‬p.‭ ‬51.‭) ‬By such notorious treachery and dishonesty‭ ‬did the Zealots of the Romish Church introduce the‭ ‬papal Tyranny into England.
‭(a) “‬Our Lord‭ t‬he King,‭ ‬at his Parliament after Easter,‭ ‬the‭ ‬21st‭ ‬year of his reign,‭ ‬at the instance of the Nobles of his realm,‭ ‬hath‭ ‬granted and commanded to be from henceforth firmly observed,‭" &c.
Sir Edward Coke,‭ ‬in his 3d lnst.‭ (‬pages‭ ‬40‭ ‬and‭ ‬41,‭) ‬clearly proves,‭ ‬from the Parliament-Rolls and other‭ ‬Records,‭ ‬the fraudulent‭ ‬introduction of the above-mentioned Act,‭ ‬in the‭ ‬5th of Rich.‭ ‬II.‭ ‬by a popish‭ ‬Prelate(b),‭ ‬who at that time was Lord Chancellor:‭ ‬And‭ ‬the same learned author thereupon directs us to‭ “‬mark well the‭ m‬anner of the penning the Act:‭ ‬for,‭ ‬seeing‭" (s‬ays he‭) "‬the Commons did not assent thereunto,‭ ‬the words of the Act be,‭ It ‬is ordained and‭ ‬assented in this present Parliament,‭ ‬that,‭ &c‬.‭ ‬And so‭ ‬it was,‭ ‬being but by the King and the Lords."‭
‭(b) ‬Sir Edward Coke calls him‭ “John Baibrook" ‬3‭ ‬Inst.‭ ‬p.‭ ‬41‭; ‬but,‭ ‬according to Bishop Godwin,‭ ‬his name was‭ “‬Robert Braybrook”‭ (‬De Praesulibus Angliae Com.‭ ‬p.‭ 1‬86.‭) ‬but both of them‭ ‬testify that he was Bishop of London,‭ ‬as well as Lord Chancellor.‭ ‬Among the blessed effects of his pious fraud the following are reported‭ ‬by Sir Edward Coke,‭ ‬3d Inst.‭ ‬p.‭ ‬40.‭ “‬By colour of this supposed Act,"‭ (‬5‭ ‬Rich,‭ II‬.‭) ‬certain persons that held that Images‭ were‬ not to be worshipped,‭ &‬c.‭ ‬were holden in strong prison,‭ ‬until‭ ‬they‭ (‬to redeem their vexation‭) ‬miserably yielded before these‭ ‬Mailers of Divinity to take an Oath,‭ ‬and did swear to worship‭ ‬Images; which was against the moral and eternal Law of Almighty‭ ‬God‭!” ‬This and many other such instances of hardened Apostasy‭ ‬in popish Professors sufficiently justify our applying to the papal Tyranny,‭ ‬in general,‭ ‬that Prophecy of the Apostle Paul concerning the “Man of‭ ‬Sin,”‭ ‬that was to be revealed,‭ “‬the Son of Perdition,‭ ‬who opposeth and exalteth himself above all that is called God,‭ or ‬that is worshipped‭; s‬o that he,‭ ‬as God,‭ s‬itteth in the temple of‭ ‬God,‭ s‬hewing himself that he is God‭" (2‬ Theff.‭ ‬ii.‭ ‬3‭ ‬to‭ ‬6‭); ‬and‭ ‬whom the Lord Shall consume‭ ‬with the Spirit of his mouth,‭ ‬and‭ s‬hall destroy with the brightness of his Coming‭;" (verse‬ 8.‭) — ‬Oh‭! ‬that all those persons,‭ ‬whose hearts are not yet entirely‭ “s‬eared with the hot iron” ‬of popish Enthusiasm,‭ ‬may duly consider these glaring‭ ‬instances of popish craft,‭ ‬in opposition to the Laws of God,‭ ‬and consequently the apparent danger of adhering to that church which has‭ s‬o notoriously perverted the Doctrines of the Gospel‭; lest they s‬hould‭ ‬be found in communion with the Enemies of Christ‭ at‬ his glorious Coming‭!
The same rule enables us to judge concerning the‭ ‬authenticity of many other ancient Acts,‭ ‬wherein the‭ ‬Assent of the Commons is not particularly mentioned,‭ ‬and‭ ‬yet they are published.‭ ‬The constitutions called Statutum de Bigamis,‭ ‬for instance,‭ ‬are declared to have been‭ “s‬et forth in the Parliament after Michaelmas," &c,‭ “‬Editae suerunt apud Westm.‭ ‬in parliamento post sestum sancti Michaelis,‭" &‬c.‭ (‬Mag.‭ ‬Char,‭ ‬cum‭ st‬atutis quae‭ ‬antiqua vocantur,‭ &‬c,‭ ‬p.‭ ‬104,‭ ‬b.‭ ‬Ed.‭ ‬1556.‭) ‬But when we‭ “ma‬rk well the manner of the penning the Act," according to Sir Edward Coke's rule,‭ ‬it appears to be very deficient in parliamentary Authority,‭ ‬though he himself has taken great pains to prove‭ ‬its authenticity.‭ ‬He remarks,‭ ‬that‭ “‬these‭ ‬words in‭ ‬the 1st chapter‭ (‬concordatum est per justiciarios et‭ ‬alios‭ s‬apientes de Concilio Regni‭) ‬prove it to be by Authority of Parliament‭; ‬for Concilium Regni" (says‭ ‬he‭) “‬is the Lords and Commons,‭ ‬legally called COMMUNE CONCILIUM REGNI.” 2d Inst.‭ ‬p.‭ ‬267.‭ ‬But,‭ ‬even according to this argument,‭ ‬the word‭ “‬commune‭" ‬is apparently wanting,‭ ‬to make up what‭ ‬he himself allows to be the legal expression for the‭ ‬Lords and Commons‭; ‬and,‭ ‬if we duly confider the‭ ‬words which immediately follow,‭ ‬it must appear that‭ ‬the‭ “s‬apientes de Concilio Regni,"‭ &‬c.‭ ‬here mentioned,‭ ‬were only such particular sapientes as held Judicial places,‭ ‬(“qui consuetudines et usum judiciorum hactenus habuerunt‭"); s‬o that the expression cannot,‭ ‬with propriety,‭ b‬e supposed to include the whole representative‭ ‬Body of the Commons,‭ ‬as well as the Lords,‭ &‬c.‭ ‬but‭ ‬merely the Judges,‭ ‬and such Lords,‭ ‬Prelates,‭ ‬and‭ ‬others,‭ ‬as held judicial places,‭ ‬and were of the King's‭ ‬Council,‭ ‬mentioned in the preamble,‭ viz. ‬In praesentia, &c.‭ ‬quorundam episcoporum Angliae,‭ ‬et aliorum,‭ ‬de‭ ‬Concilia Regis,‭ ‬which Sir Edward Coke‭ (‬by what authority I cannot guess‭) ‬is pleased to call a‭ “‬Committee‭ ‬of both Houses,"‭ ‬though it can mean nothing more‭ ‬than a meeting of the King's Privy-Council‭; ‬and the‭ s‬ame may be said of that second meeting,‭ ‬afterwards‭ ‬mentioned,‭ "coram ‬Domino Rege et Concilio suo,"‭ ‬wherein the said Constitutions were again‭ ‬read (auditae et publicatae‭) ‬and ordered to he ingrossed and observed; “quod‭ ‬in scripturam redigerentur ad perpetuam memoriam,‭ ‬et quod firmiter observentur:‭" ‬which‭ (‬be pleased to‭ ‬remark‭) ‬is the principal enacting or enforcing clause of‭ ‬this‭ Act: An‬d,‭ ‬therefore,‭ ‬when we confider that the‭ s‬ame was agreed to, or ordained,‭ ‬by the Judges as well as others,‭ ("‬tam Justiciarii quam alii concordaverunt quod in scripturam,‭" &c.‬ we may be assured that‭ ‬the meeting was‭ not ‬the Parliament,‭ (‬in which the‭ ‬Judges,‭ ‬as such,‭ ‬have not any vote or voice at all,‭ ‬except that of advising,‭) ‬but merely the King's Privy-Council:‭ ‬and therefore Judge Shard,‭ ‬as cited by‭ ‬Lord Coke,‭ ‬had,‭ s‬urely,‭ ‬reason on his side,‭ ‬when he, “beholding the manner of the penning of this Act,"‭ (‬compare this with Lord Coke's own Rule,‭ ‬to the same‭ ‬purpose,‭ ‬abovementioned,‭) “was‬ of opinion that it‭ w‬as no Act of Parliament,"‭ ‬though Sir Edward Coke‭ ‬was pleased to censure him,‭ s‬aying,‭ ‬that‭ "‬the contrary is holden by many express Authorities,‭ ‬both before‭ ‬and after him.‭" (‬2d.‭ ‬Inst.‭ ‬p.‭ ‬267.‭) ‬But what Authorities can be equal to the internal evidence of the Act itself,‭ ‬according to his own rule,‭ “‬Mark well the manner of the penning‭?” &c. ‬For,‭ ‬though it may have‭ ‬been allowed the force of an Act,‭ ‬in judicial proceedings,‭ ‬as well as in the writings of some respectable‭ ‬commentators,‭ ‬yet this is nothing but the natural consequence of its having been published and printed,‭ ‬without remarks,‭ ‬among the other Acts,‭ (c) ‬agreeable to‭ ‬the intention of those who unlawfully promoted it.‭ ‬But‭ ‬Lord Shard declared from the Bench,‭ ‬in the Assises at‭ ‬Winchester,‭ (‬anno‭ ‬30th E.‭ ‬3.‭) ‬that this never was a Statute.‭ ‬Lib.‭ ‬Affisarum,‭ ‬p.‭ ‬173.‭ “‬Shard.‭ ‬Negativa nihil‭ ‬implicat.‭ ‬Et ceo que vous paries del'‭ ‬Statut de Bigamis,‭ ‬ceo ne suit unquam ascun Statut."
(c) The undue Authority,‭ ‬acquired by such impositions,‭ ‬was still more‭ ‬notorious,‭ ‬in the credit that has been given,‭ ‬even by the Legislature itself,‭ ‬to the three other false Statutes before mentioned against‭ (‬what‭ ‬the Papists‭ ‬call‭) ‬Heresy:‭ t‬wo of them are expressly recited,‭ ‬and formally‭ repealed‬ by an Act‭ ‬of Parliament in the 1st‭ ‬of Edward VI.‭ ‬(cap.‭ ‬12.‭ ‬§.‭ 3‬.‭) ‬as if they had really been Statutes ordained by‭ ‬the Authority of the whole Legislature; and all the three false Statutes together are recited,‭ ‬acknowledged,‭ ‬and revived,‭ ‬by another Act‭ ‬of Parliament,‭ ‬in the J. &‭ ‬2.‭ ‬P.‭ & ‬M.‭ (cap. ‬6.‭) ‬and‭ are‬ yet again‭ ‬expressly intitled Statutes,.‭ ‬and as such are formally repealed by a third‭ ‬Act of Parliament in the 1stt of Eliz.‭ ‬c. 1.‭ §‬.‭ ‬15.‭ ‬But yet these several great Authorities by no means invalidate the Evidence which‭ ‬Sir Edward Coke has produced,‭ t‬o prove that the said three wicked‭ Ordinances were ‬really no Statutes.
Another objection against‭ this su‬pposed Statute is the‭ ‬apparent evil intention of the‭ ‬5th Article, “de Bigamis,"‭ (‬from whence it has acquired its title,‭) ‬which was,‭ ‬to acknowledge a foreign popish Law,‭ ‬as‭ ‬if it were already‭ (‬without interposition of Parliament‭) ‬of legal force in England,‭ ‬and needed only some‭ s‬mall explanation,‭ ‬with respect to the manner of putting it in execution‭; ‬an idea this,‭ ‬which all free English Parliaments,‭ ‬even in popish times, most zealously‭ ‬opposed!‭ ‬But,‭ ‬above all,‭ ‬the Iniquity of the foreign‭ ‬Decree itself,‭ ‬which is introduced by this‭ ‬5th Article,‭ ‬affords the most ample argument against the whole Statute, as it seems to have been drawn up principally for‭ ‬purpose of enforcing,‭ ‬and smuggling in,‭ ‬amongst other‭ ‬articles,‭ ‬that diabolical popish Decretal of Pope‭ ‬Gregory IX.‭ ‬for discouraging lawful Marriages of‭ ‬Widows or Widowers! The Marriages of the Clergy‭ ‬had been absolutely forbid‭ (d) ‬about‭ ‬200‭ ‬years before,‭ ‬and those who were already married forcibly separated from their wives,‭ (e) (‬In open contradiction to the Laws‭ ‬of God,‭) ‬by a Decree of Pope Gregory VII.‭ ‬which‭ ‬was still farther enforced by his successors;‭ ‬and the‭ ‬Clergy were compelled at length to submit to that unnatural Tyranny,‭ ‬by a variety of the most unjust and‭ ‬cruel laws and oppressions (f) that satanical malice could‭ ‬possibly devise,‭ in‬ the several ecclesiastical Synods of‭ ‬that and the following century.
But the Decree against Bigamy was aimed at the‭ ‬Laity as well as Clergy‭; si‬nce every Layman that‭ ‬could read was‭ (‬before‭) ‬entitled to the Benefit of Clergy,‭ ‬when convicted of some particular offences‭; ‬which‭ ‬privilege was by this Decree taken away from all persons called bigami,‭ ‬or who had been twice married‭ s‬uccessively,‭ (g) ‬the principal purpose of this new‭ ‬popish Ordinance being to call:‭ ‬an odium and restraint‭ ‬upon lawful second marriages,‭ ‬and confound them‭ ‬with the real Felony of having two wives at one time.
Thus‭ ‬the intention of the Romish Church was‭ apparently‬ diabolical;‭ ‬under a false pretence of extraordinary purity,‭ ‬to discourage lawful Marriages,‭ ‬and‭ ‬thereby ensnare mankind,‭ ‬through their natural frailties,‭ ‬into real pollutions:‭ ‬and it is notorious that the‭ ‬popish tenet of “forbidding to marry"‭ ‬is one of the‭ ‬distinguishing scriptural marks of Antichrist!
(d) As the‭ “‬forbidding to marry” is ranked by the apostle Paul amongst the‭ “‬Doctrines of Devils,"‭ (1‬ Tim.‭ ‬iv.‭ 1‬.‭) s‬o the papal‭ ‬Antichrist,‭ ‬in very early times,‭ ‬began to discourage the‭ “‬Marriages of the Clergy:‭ ‬but Pope Gregory VII.‭ ‬alias Hildebrand,‭ ‬a‭ ‬Monster in Iniquity,‭ (‬to prove which.‭ ‬Dr.‭ ‬Cave has cited unexceptionable authorities,‭ Hist. Liter‬,‭ ‬p,‭ ‬535.‭) more openly revealed “‬the man‭ of sin" ‬in the 11th Century,‭ ‬and,‭ ‬amongst other notorious manifestations of most impious Tyranny,‭ “‬made a Decree,‭" (‬in 1074,‭) ‬that,‭ “‬from that time forward,‭ ‬it should no more be lawfull for‭ ‬Priestes‭ t‬o marrye,"‭ &‬c.‭ ‬Bacon’s Reliques of Rome,‭ ‬p.‭ ‬32‭ b‬.‭ ‬This‭ ‬as apparently a contrary Doctrine to what St.‭ ‬Paul preached,‭ ‬and consequently it subjects the Roman See to the Anathema of that Apostle‭! “‬Though we,‭ ‬or an Angel from Heaven,‭ ‬preach any other Gospel‭ ‬unto you than that which we have preached unto you,‭ ‬let him be‭ ‬accursed."‭ ‬Gal.‭ 1‬.‭ ‬8‭ & ‬9.‭ ‬The Marriage of the Clergy had never before been forbidden except among the worst of Heretics,‭ ‬but had‭ ‬been allowed by the whole Church of Christ,‭ ‬from the time of the‭ ‬Apostles,‭ ‬for above 1000 years,‭ ‬down to this unhappy Century:‭ ‬and,‭ ‬with respect to Ireland in particular.‭ ‬Sir Edward Coke informs us,‭ ‬that,‭ “‬at a Synod holden in Inland,‭ ‬by St.‭ ‬Patrick,‭ t‬heir Apostle,‭ ‬it‭ ‬was unanimously agreed that Irish Priests should have Wives."‭ ‬4‭ I‬nst.‭ ‬p.‭ ‬356.
(e) Bacon's Reliques of Rome,‭ ‬p.‭ 32‬ b.
(f) See,‭ ‬for instance,‭ ‬the several Decrees of a Council,‭ ‬held at London,‭ ‬by Anselm,‭ ‬Archbishop of Canterbury,‭ ‬in 1108,‭ ‬upon‭ ‬this subject,‭ ‬to oblige the Clergy to forsake their lawful wives,‭ ‬who were‭ ‬mentioned by the Council as Concubines,‭ ‬and were ordered to be delivered up to the Bishops as Adulteresses,‭ ‬together with all the goods of‭ ‬those unfortunate husbands,‭ ‬who persisted in their natural affection!‭ ‬Tenth and laft Article‭ ‬:‭ "‬Omnia vero mobilia lapforum posthac‭ ‬Presbyterorum,‭ ‬Disconorum,”‭ &‬c.‭ (‬meaning the goods of those‭ ‬who continued,‭ ‬to‭ ‬visit their wives,‭) "‬tradeniur Episcopis,‭ ‬et Concubina, cum rebus suis,‭ velut Adultera." Howel’s Synopsis Canonum, ‬&c.‭ ‬vol.‭ ‬I.‭ ‬p.‭ ‬88.
(g) Bigamie‭ (s‬ays Sir William Staunford,‭ ‬in his‭ “‬Plees del Coron.‭" ‬p.‭ ‬134‭) “‬est un counterplee a Clergie,‭" (‬Lambard calls it an‭ "ungodly ‬and popish Counterplea,"‭ ‬Eiren.‭ ‬p.‭ ‬555,‭) “s‬a dire,‭ ‬que cestui,‭ ‬qui demaunde le privilege de son Clergy,‭ s‬uist espouse a unseme,‭ ‬a tiel lieu,‭ ‬deynz tiel dioces,‭ ‬et que le dit seme morust, et ad‭ ‬espouse auter seme,"‭ &‬c.
‭(‬36‭) ‬The compulsive means,‭ ‬used on this occasion,‭ ‬to extort money from the people,‭ s‬ufficiently demonstrate that‭ “‬the‭ w‬ay of Loane, which”‭ (‬was then‭) “‬intended by his Highness,‭ ‬amounted to an‭ exaction ‬of‭ ‬the most notorious nature‭! ‬Many people were imprisoned,‭ ‬and many others pressed into the land and‭ ‬Tea service,‭ ‬for refusing to contribute.‭ ‬See Rushworth's‭ ‬Collection,‭ ‬vol.‭ 1‬,‭ ‬p.‭ ‬426.‭ ‬Sir Thomas Wentworth‭ ‬(afterwards Lord Strafford‭) ‬was one of the Sufferers on‭ ‬this occasion,‭ ‬for‭ “‬he was imprisoned,‭ ‬by the Lords of‭ ‬the Council,‭ ‬for refusing the Royal Loan.‭" ‬Supplement to the new and general Biographical Dictionary,‭ ‬p.‭ ‬474.‭ "‬His Majesly demanded of the City of London the loan of an hundred thousand pounds.‭" ‬Rushworth's Collection,‭ ‬vol.‭ 1‬, p.‭ ‬419.‭ ‬If such precedents‭ ‬were to be admitted,‭ ‬or allowed any weight at all,‭ ‬in‭ ‬this argument,‭ ‬the very same reign would afford precedents sufficient to render the King of England as despotic‭ ‬as the Emperor of Morocco‭! ‬In the fourth year of‭ ‬this reign,‭ “‬the King's Commission‭" ‬was issued “to‭ ‬the Lord-Treasurer and Barons of the Exchequer, and to the Customers of the ports,‭" ‬to collect Tonnage and Poundage without authority of Parliament.‭— “‬Know ye,‭ ‬that we,‭ ‬by advice of our Lords,‭" (‬that‭ ‬is,‭ ‬the Lords of his Council, mentioned in the beginning‭ ‬of the Commission,‭ “‬declare our Will, that all those‭ ‬duties be levied and collected as they were in the‭ ‬time of our father,‭ ‬and in such manner as we shall‭ ‬appoint:‭ ‬and,‭ ‬if any person refuse to pay,‭ ‬then our‭ ‬Will is,‭ ‬that the Lord-Treasurer shall commit to prison such,‭ s‬o refusing,‭ ‬till they conform themselves: and we give full Power to all our officers,‭ ‬from time‭ ‬to time,‭ ‬to give assistance to the farmers of the same,‭ ‬AS FULLY AS WHEN THEY WERE COLLECTED BY AUTHORITY OF PARLIAMENT.‭" ‬Rushworth,‭ ‬vol.‭ 1‬,‭ ‬p.‭ ‬669.‭ ‬Here the Neglect of the‭ “‬Authority of Parliament‭" ‬is openly avowed,‭ ‬though the forgetful‭ ‬Monarch was bound under a solemn oath,‭ ‬at his coronation,‭ ‬to maintain the Laws of the land‭!
(37‭) ‬The Commissioners were impowered not only to‭ ‬use martial Law “against soldiers or mariners,‭" ‬but‭ ‬also against‭ ‬other dissolute persons,‭ ‬joining with them,‭ ‬or any of them‭;" ‬whereby,‭ ‬under the latter denomination,‭ ‬a way was opened to render all other persons‭ ‬(besides soldiers and mariners‭) ‬liable to the uncertain‭ ‬decisions‭ ‬and hasty rigour of martial Law‭! ‬Any man‭ ‬whatever might be unjustly charged as a dissolute person‭ ‬&c.‭ ‬and the accusation alone, whether true or ‭false‬,‭ ‬was‭ s‬ufficient to divest the person accused of all the privileges of an English subject,‭ ‬at the very time when he‭ s‬tood most in need of them‭! ‬So that,‭ ‬if the King's‭ ‬Commissioners should happen to dislike any particular‭ ‬person,‭ ‬within the county,‭ ‬or limits of the jurisdiction,‭ ‬expressed in their Commission,‭ ‬it was possible for‭ ‬them‭ to ‬promote such an accusation, and thereby render themselves Judges tn their own cause‭; s‬ince the King's Commission‭ (‬contrary to his Majesty's most solemn engagement,‭ ‬before God,‭ ‬at his coronation‭) ‬deprived the‭ ‬accused subject of a legal Trial and the due Process of‭ ‬the Law,‭ ‬the only defence of the innocent,‭ ‬by substituting an illegal Process in lieu of it‭! ‬And the horror of‭ ‬this monstrous usurpation of power was much increased‭ ‬by the following circumstance,‭ ‬that the Commissioners‭ ‬were expressly authorized,‭ ‬by their Commissions,‭ ‬to‭ “erect Gallowes‬ or Gibbetts,‭ and in such ‬places as they‭ s‬hall think fit!"
‭(‬38‭) ‬In Rushworth's Collection,‭ ‬4th part,‭ ‬vol.‭ ‬2,‭ ‬P.‭ ‬1355.‭ ‬we read the names of the Members imprisoned‭ ‬by the Army,‭ ‬which were inserted in‭ "‬the Proposals and Desires of the Army,‭" ‬presented that day‭ ‬to the Parliament by Colonel Whaley and other officers‭; ‬and in Mr.‭ ‬Rushworth's Diary for the next day,‭ ‬Dec‭ ‬7,.‭ ‬we find the following Memorandum relating‭ ‬to that transaction:‭ ‬viz, “The Members seized on by the‭ ‬Army were this day removed from Mr.‭ ‬Duke's-house,‭ ‬(commonly called Hell,‭) ‬in Westminster,‭ ‬where‭ ‬THEY WERE ALL LAST NIGHT,‭ ‬to two inns in the Strand,‭ ‬viz.‭ ‬the King's-Head and the Swan, and there have a guard upon them;"‭ ‬p.‭ ‬1356.
(39‭) “‬Le‭ ‬7‭ ‬de Decembre les Membres des Communes,‭ ‬en se rendant a leur Chambre,‭ ‬y trouverent a la porte en dehors et en dedans une garde qui en‭ ‬empecha un grand nombre d'entrer.‭ ‬Le Comte de‭ ‬Clarendon dit qu'il y en eut environ cent a qui on‭ ‬refufa I'entree.‭" ‬Rapin,‭ ‬torn.‭ ‬8,‭ ‬liv.‭ ‬21,‭ ‬p.‭ 707.
‭(‬40‭) ‬The orders of the Lords and Commons for‭ ‬raising the militia to oppose the King's commissions of‭ ‬array were dated in‭ ‬1642,‭ ‬See Rushworth's Collection,‭ ‬part‭ ‬3.‭ ‬vol.‭ ‬1.‭ ‬p.‭ ‬678,‭ ‬679,‭ ‬684,‭ ‬685,‭ ‬689,‭ ‬and‭ 765.
(41‭ ) “ — ‬Les officiers et les soldats comprenoient bien qu'on vouioit se defaire d’eux,"‭ (‬that‭ is‬,‭ ‬the‭ ‬war being at an end,‭ ‬the Parliament was inclined‭ ‬to reduce the number of regular troops by degrees,‭) “‬et que la plupart n'etoient gueres en etat d'aller‭ ‬reprendre leur professions,‭ ‬apres avoir ete quatre ou‭ ‬cinq ans occupez a faire la gaerre.‭ Il‬ y avoit dans‭ l’a‬rmee un granci nombre d’officiers qui n‭' ‬etoient avant la guerre que des artisans,‭ ‬et qui ne‭ ‬voyoient qu'avec peine qu'ils alloient‭ etre ‬reduits a‭ ‬quitter‭ ‬leur emplois qui leur donnoient de l'autorite,‭ ‬et a reprendre leurs anciens metiers pour se meler,‭ ‬comme auparavant,‭ ‬dans la foule du petit peuple.‭ ‬Ces gens la,‭ ‬le meme que ceux que les independans avoient attirez dans leur parti,‭ ‬etoient dispofez a tout entreprendre,‭ ‬pour n'etre pas obligez a‭ ‬changer la maniere de vie qu'ils avoient menee depuis quelqaes annees.‭ ‬Cromwell donc,‭ ‬et les officiers de son parti,‭ ‬profitant de cette dispofition,‭ s’‬attacherent a inspirer a l'armee un esprit de mecontentement contre les deux chambres,‭ ‬en quoi ils ne‭ ‬reussirent que trop bien."‭ ‬Rapin,‭ Tom‬.‭ ‬VIII.‭ ‬p.‭ ‬579.
‭(‬42‭) ‬See the Votes of the Commons on the‭ ‬28th‭ ‬of April,‭ ‬1648, viz. “I.‭ ‬That the Government of the Kingdom should be still by King,‭ ‬Lords,‭ ‬and‭ ‬Commons.‭ ‬2.‭ ‬That the ground-work for this Government should be the propositions last presented to the King at Hampton-Court‭; ‬and,‭ 3‬dly, That any‭ ‬Member of the House shall have leave to speak freely‭ to any ‬Votes,‭ ‬Ordinances,‭ ‬or Declarations,‭ ‬concerning the King,"‭ &c. ‬Rushworth's Collect.‭ ‬part‭ ‬4.‭ ‬vol.‭ ‬2.‭ ‬p.‭ ‬1074.
Tuesday,‭ June 27‬,‭ 1‬648,‭ (43‭) “‬This day a Petition from the Lord Mayor,‭ ‬Aldermen,‭ ‬and Common Council of the City of London‭ ‬was presented to both Houses of Parliament‭; the substan‬ce thereof,‭ ‬for satisfaction of those that have not seen the Petition,‭ ‬take briefly thus:‭— ‬That a personal treaty may be obtained betwixt his Majesty‭ ‬and both Houses,‭ ‬in the city of London,‭ ‬or some other‭ ‬convenient place,‭ ‬where it may be most for the honour of his Majesty's royal Person,‭ ‬and preservation of‭ the‬ Parliament,‭ a‬s their honours thought fit‭; ‬unto‭ ‬which treaty they humbly desire our brethren of Scotland may be invited‭; ‬that so according to the‭ ‬duty of our allegiance,‭ ‬protestation,‭ s‬olemn league,‭ ‬and Covenant,‭ ‬his Majesty's royal person,‭ ‬honour,‭ ‬and‭ estat‬e,‭ m‬ay he preserved‭; t‬he power and privilege‭ of ‬Parliament‭ m‬aintained‭; ‬the just Rights and Liberties of‭ t‬he Subjects restored‭; ‬Religion and Government of‭ ‬the Church in purity established‭; ‬all differences may be the better composed,‭ ‬and a firm and lasting‭ ‬peace concluded‭; ‬and the union between the two Kingdoms continued,‭ ‬according to the covenant‭; ‬ALL ARMIES DISBANDED;‭ ‬and all your soldiers‭ ‬just arrears satisfied‭; ‬the Kingdom's burthens eased, and the laudable Government thereof,‭ ‬by the good‭ ‬and‭ ‬wholesome Laws and Customs,‭ ‬happily advanced.‭" ‬For this,‭ ‬both Lords and Commons,‭ ‬respectively,‭ ‬thank the petitioners for‭ ‬their good attention to the Parliament,‭ ‬and signify their concurrence in the same sentiments.‭ ‬Rushworth,‭ ‬part‭ ‬4.‭ ‬vol.‭ ‬2.‭ ‬p‭ ‬1167,‭ ‬and‭ ‬1168.
‭(‬44‭) “‬J'ai deja dit,‭ ‬que le Parliament n'avoit d'autre appui que‭ l'‬Armee.‭ ‬C'etoit par le‭ mo‬yen de l’ Armee qu’il tenoit la nation dans la servitude."‭ ‬Rapin,‭ ‬tom.‭ ‬9,‭ ‬p.‭ ‬57.
‭(‬45‭) ‬Cromwell,‭—‬ “apres avoir concerte toutes‭ ‬choses avec les principaux officiers,‭ s‬e rendit au Parliament le 20/30 Avril,‭ ‬accompagne d'un petit nombre d’officiers et de soldats,‭ ‬et sans autre preambule il dit‭ ‬aux Membres du Parliament,‭ ‬qu'il venoit mestre sin a‭ ‬leur autorite dont ils avoient sait un mauvais usage, et que,‭ s‬ans deliberer,‭ ‬ils eussent a se dissoudre sur le‭ ‬champ.‭ ‬En meme temps les officiers et les soldats‭ ‬entrerent,‭ ‬et se tinrent a la porte,‭ ‬pendant que les Membres se retiroient hors de la Chambre.‭ ‬A mesure qu'ils sortoient,‭ ‬Cromwell disoit a l’un,‭ ‬qu'il etoit un yvrogne,‭ ‬a un autre,‭ ‬qu'il etoit un voleur,‭ s‬ans en epargner aucun de ceux qu'il connossoit‭ ‬pour fes ennemis.‭ ‬Ensuite,‭ ‬il donna a garder la‭ ‬Masse,‭ ‬qu'on porte devant l'Orateur,‭ ‬a un de fes‭ O‬fficiers,‭ ‬et ferma les portes a la clef.‭ ‬Cette action‭ ‬etoit‭ e‬xtraordinaire, mais elle ne‭ l'‬etoit pas plus‭ ‬que celle que le General Fairfax avoit sait peu‭ ‬d'annees‭ ‬auparavant,‭ ‬lors qu'il avoit sait chaffer de la Chambre et emprisonner les Membres QUE N'ETOIENT PAS AGREABLES a l’Armee.‭" ‬Ibid.‭ ‬p.‭ ‬59.
‭(‬46‭) “‬Ces nouveaux Souverains s'etant assemblez‭ ‬au‭ ‬jour marque,‭ ‬Cromwell les harangua,‭ ‬et,‭ ‬apres avoir‭ ‬fini son discours,‭ ‬il leur delivra‭ ‬un instrument en‭ ‬parchemin,‭ s‬igne par lui meme et par les‭ p‬rincipaux officiers de l’Armee,‭ ‬par lequel on leur desieroit l’Autorite Souveraine.‭ ‬Cet ecrit portoit,‭ ‬que tous les Sujects d'Angleterre, d'Ecosse,‭ ‬et‭ d’Irelande‬,‭ ‬etoient tenus‭ ‬de leur obeir,‭ ‬jusqu’au 3-13‭ ‬de Novembre‭ de l'‬annee suivante‭ ‬1654,‭ ‬c'est‭ a dire pendant un au et quat‬re mois,‭" &‬c.‭ ‬Ibid.‭ ‬61.
‭(‬47‭) ‬On the 12/22 of December,‭ ‬1653.‭ ‬Ibid.‭ ‬p.‭ ‬63.
(48‭) “‬Deux jours apres,‭ ‬le Conseil des Officers, en‭ ‬vertu de I'autorite que le precedent Parlement"‭ ‬(meaning the junto of‭ ‬144‭ ‬persons,‭ constituted‬ and chosen merely by the General, or by the Army‭) “‬venoit de lui‭ ‬deferer,‭ ‬declara,‭ ‬qu'a l'avenir,‭ LE GOVERNMENT DE ‬LA REPUBLIQUE residercit DANS UNE SEULE PERSONNE,‭ ‬favoir,‭ ‬dans celle d'Olivier Cromwell,‭ ‬General des Armees d'Angleterre,‭ ‬d'Ecoffe,‭ ‬et d'Irlande‭; ‬et qu'il auroit le titre de Protecteur des trois‭ ‬Royaumes, et qu'il seroit assiste d'ua conseil de‭ ‬21 perfonnes.‭" ‬Rapin,‭ ‬Tome ix.‭ ‬p.‭ ‬64.
(49‭) V‬iz.‭ ‬from the‭ 16/26 ‬Dec.‭ ‬1653,‭ ‬to the‭ 3/13 ‬Sept.‭ ‬1654,‭ ‬as appears by the 1st and‭ ‬8th Articles of what‭ ‬this military Council were pleased to call‭ “‬an Act of‭ ‬Government,"‭ ‬thereby proving their own usurpation‭ ‬of the supreme legislative Authority; which Authority‭ ‬they were afterwards pleased to lodge in the single person of their General,‭ ‬by the‭ ‬7th and‭ ‬8th Articles of the‭ said “Act of Government.” ‬Ibid,‭ p. ‬64.
‭(‬50‭) ‬I might have saved myself much trouble,‭ ‬upon‭ ‬this point,‭ ‬had‭ I ‬been aware,‭ ‬when I wrote‭ ‬the foregoing pages,‭ ‬that the danger of keeping standing Armies‭ ‬had been so well enforced by Mr.‭ ‬Quincy,‭ ‬in his Observations on the Boston Port Bill.‭ ‬That ingenious‭ ‬and sensible Writer has very judiciously collected a‭ ‬number of unquestionable examples upon the subject,‭ ‬which,‭ ‬together with his own pertinent observations‭ ‬upon them,‭ ‬demand the most serious attention not only‭ ‬of every‭ loyal ‬English Subject,‭ ‬at this time,‭ ‬but of all‭ ‬friends to mankind in general.
(51‭) ‬The example of military Tyranny,‭ ‬which I have‭ ‬already recited,‭ ‬demonstrates the great danger of permitting any part of a national Militia to be absent,‭ ‬longer than is absolutely necessary,‭ ‬from the particular‭ ‬county or district to which it properly belongs‭; for, ‬as soon as Militia-Men begin to depend upon their Pay, or “Solde” ‭(h) ‬instead of their industry and the regular‭ ‬daily employments which they followed at home,‭ ‬they‭ ‬cease to be the constitutional defenders of their country,‭ ‬and become mere Soldiers‭ (“Soldats”) ‬or Mercenaries:‭ ‬and therefore,‭ ‬as it is now reported that great pains‭ ‬are,‭ ‬at this time,‭ ‬taken,‭ ‬in the several American Colonies,‭ ‬to renew the ancient discipline of the Militia, in their respective provinces,‭ ‬it is a matter of great‭ ‬consequence,‭ (‬as well for their own internal Happiness‭ ‬and liberty,‭ ‬as for the preservation of peace and union‭ ‬with the mother-country,‭ ‬and a continuance‭ o‬f that‭ ‬due constitutional subjection, to the Crown of Great Britain, which is the true interest of all parties,‭ ‬as it‭ ‬connects every branch of the empire,‭ ‬and infuses mutual confidence and protection‭ against ‬foreign enemies,‭) ‬that no persons whatever be allowed the rank of Officers, in any of their provincial Regiments of‭ ‬Militia,unless they have a competent fortune,‭ ‬either in Land or‭ ‬Money,‭ ‬to enable them to live comfortably,‭ ‬without‭ ‬military pay,‭ ‬left they should ever entertain a separate‭ ‬Inierest from that of the Public,‭ ‬and,‭ ‬like the degenerate Militia under Cromwell,‭ enslave‬ their country!‭ ‬Even,‭ ‬a common Militia-Man‭ is ‬not properly qualified‭ ‬for that public Trust‭ (‬for such it is‭) ‬unless,‭ ‬from his‭ s‬ituation in life,‭ ‬or as the mailer of a family,‭ ‬he has‭ s‬ome permanent interest in the welfare of the community.
(h) Diictionnaire militaire,‭" ‬p.‭ ‬417.
‭(‬52‭) “‬Ainsi ce Parlement,‭ ‬qui dans son commencement avoit ete compose du Roi, d'une Chambre d'environ six-vingts Seigneurs,‭ ‬et d'une Chambre des‭ ‬Communes,‭ ‬ou il y avoit cinq cens treize Deputez,‭ s‬e vit‭ ‬reduit a une Chambre des Communes composee d’environ quatre-vingts Membres, dont il y en avoit tres peuqui,‭ ‬au commencement de ce Parlement,‭ ‬eussent‭ ‬cinq-cens livres sterling de rente.‭ ‬Cependant ces‭ ‬membres,‭ ‬quoiqu'en si petit nombre,‭ ‬s'attribuoient‭ ‬le nom de Parliament,‭ ‬et agissoit comme ayant reuni,‭ ‬dans leur corps,‭ ‬le pouvoir qui avoit auparavant‭ ‬reside dans le Roy,‭ ‬dans les Seigneurs,‭ ‬et dans les‭ ‬Communes. ‭ C‬ela pourroit paroitre sort etrange,‭ s‬i‭ on ‬n’etoit pas deja informe de ce qui s’etoit passe, et de la terreur que l'Armee inspiroit a tout le‭ ‬monde.” Rapin,‭ ‬tome ix.‭ ‬p.‭ ‬4.
(53‭) ‬The sensible and patriotic author of the‭ “‬Letters from a Farmer in Pennsylvania to the Inhabitants of the British Colonies‭ (‬1774‭)‬,‭" ‬remarks,‭ ‬in‭ ‬a note on page‭ ‬103,‭ ‬that,‭ “‬the last Irish Parliament" continued thirty-three years, that is,‭" (s‬ays he,‭) “‬during all the late reign.‭ ‬The present Parliament there has continued from the beginning of this reign, and probably will continue” ‭(s‬ays he‭) “to‬ the end!”
This is indeed,‭ ‬as he justly calls it,‭ ‬a most “pernicious particularity,” it being a greater defect in the‭ ‬constitutional Liberties of Ireland than any other that I ever heard of‭; a‬nd,‭ ‬as it is apparently contrary to‭ ‬the intention and legal constitution of Parliaments,‭ must‬ necessarily reflect the greatest‭ ‬dishonour on those‭ ‬persons,‭ ‬whoever they are,‭ ‬that have introduced this‭ ‬monstrous infringement on the natural Rights of the‭ ‬Irish Subjects.
These excellent Letters,‭ ‬which contain much seasonable instruction,‭ ‬are said to be written by John Dickinson,‭ ‬Esq.‭ ‬the same eminent Author to whom thanks‭ ‬were most deservedly given,‭ ‬by the Committee for the‭ ‬Province of Pennsylvania,‭ ‬on the‭ ‬21ft of July last, “for the great assistance they had derived from the‭ ‬application of his eminent abilities to the service of‭ ‬his country,‭ ‬in”‭ (‬another‭) “‬performance,‭" s‬ince‭ ‬published,‭ ‬intitled,‭ “‬A new Essay‭" (‬by the Pennsylvanian Farmer‭) “‬on the constitutional Power of‭ ‬Great-Britain over the Colonies in America,‭" &c. ‬And the said Committee,‭ ‬with great justice and propriety,‭ ‬recommended that performance,‭ “‬as highly deserving the perusal and serious consideration of‭ ‬every friend of liberty,‭" &c‬.
(54‭) ‬Sir Edw.‭ ‬Coke,‭ ‬in his‭ ‬4th Inft.‭ ‬p.‭ ‬9,‭ s‬peaking‭ ‬of‭ ‬the matters of Parliament,‭" ‬informs us of the reasons usually expressed in the writs for calling a new‭ ‬Parliament‭; ‬as‭ “‬pro quibufdam arduis urgentibus negotiis,‭ ‬nos statum,‭ ‬et defenfjonem regni nostri Angliae,‭ ‬etEcclesiae Anglicanae concernentibus quoddam parliamentum nostrum, &c. teneri ordinavimus,‭" &c. ‬And he‭ ‬adds,‭ ‬in the next paragraph,‭ “‬Now,‭ fo‬r as much” (says he‭) “‬as divers Laws and Statutes have been enacted and provided for these ends aforesaid,‭ ‬and‭ ‬that divers mischiefs in particular,‭ ‬and divers grievances in general,‭ ‬concerning the honour and safety‭ ‬of the King,‭ ‬the State,‭ ‬and defence of the Kingdome,‭ ‬and of the Church of England,‭ ‬might be‭ ‬prevented,‭ ‬an‭ ‬excellent Law was made,‭ ‬anno‭ ‬36 Edw.‭ ‬III.‭ c‬.‭ ‬10.‭ ‬which,‭ ‬being applied to the‭ s‬aid‭ W‬rits of Parliament,‭ ‬doth,‭ ‬in a few and effectual‭ w‬ords,‭ s‬et down the true subject of a Parliament in‭ ‬these words:‭ ‬For‭ ‬the maintenance of the said articles‭ a‬nd statutes, and redress of‭ ‬divers mischiefs and‭ grievances‬,‭ ‬which daily happen,‭ ‬A Parliament shall‭ ‬BE HOLDEN EVERY YEAR,‭ ‬as another time was‭ ‬ordained by a statute.‭" ‬Which Statute,‭ ‬here referred‭ ‬to,‭ ‬was made in the‭ ‬4th year of the fame reign,‭ ‬cap‭ ‬14.‭ “‬Item,‭ ‬it is accorded,‭ ‬that a Parliament shall be holden EVERY YEAR ONCE,‭ ‬and more often if need be." But Sir William Blackslone supposes that the King never‭ ‬was‭ “‬obliged,‭ ‬by these Statutes,‭ ‬to call a new‭ ‬Parliament every year‭; ‬but only to permit a Parliament to‭ s‬it annually for the redress of grievances,‭ ‬and dispatch of business,‭ ‬if need be,"‭ (I‬ Com.‭ ‬c.‭ ‬2, p.‭153.)
It is too true,‭ ‬indeed,‭ ‬that our Kings,‭ ‬in general,‭ ‬did not think themselves‭ “‬obliged by these Statutes,‭" ‬(as they ought in conscience to have been,‭ ‬for the safety‭ ‬of their souls,‭) “‬to call a new Parliament every year:"‭ ‬nay,‭ ‬it is certain that many of them would never have‭ ‬called a Parliament at all,‭ ‬had they not been‭ “‬obliged”‭ ‬by necessity and the circumstances of the times.‭ ‬But by‭ ‬what authority could a representative in one Parliament‭ ‬take his seat in the next annual Parliament, without re-election,‭ ‬before any laws were made for lengthening the‭ ‬duration of Parliaments‭? ‬And besides,‭ ‬if the King‭ ‬did‭ “‬only permit a Parliament to sit annually,”‭ &‬c,‭ ‬by what authority could the Parliament be convened at‭ ‬all,‭ ‬under such a circumstance,‭ s‬eeing that a mere per-million to sit excludes the idea of a prorogation from year‭ ‬to year‭? ‬However,‭ ‬the learned Commentator himself‭ ‬very justly observes,‭ ‬in a preceding page,‭ (150‬,‭) ‬concerning‭ “‬the manner and time of assembling”‭ ‬that‭ ‬the‭ “‬Parliament is regularly to be summoned by the‭ ‬King's Writ or Letter,‭ ‬issued out of Chancery.‭" ‬And‭ ‬it is well known that these Writs are not addressed to‭ ‬ti e knights,‭ ‬citizens,‭ ‬and burgesses,‭ ‬elected for any former Parliament,‭ ‬but to the Sheriffs alone,‭ ‬to cause Knights,‭ ‬Citizen, &c.‭ ‬to be elected;‭ ‬for,‭ ‬when the said Acts were‭ ‬made,‭ s‬uch an absurdity in politics had never been‭ ‬conceived in England,‭ ‬as that of entrusting the Representation of the people,‭ ‬for a term of years,‭ (‬as at present,‭) ‬to the persons elected‭! ‬On the contrary,‭ ‬when‭ ‬the business of each Sessions was finished,‭ ‬the Parliament,‭ ‬of course,‭ ‬was at an end‭; ‬and therefore Lord‭ ‬Coke did not speak in vain,‭ ‬when he mentioned‭ “‬the‭ ‬excellent Law"‭ (‬viz.‭ ‬the Act for annual Parliaments‭) ‬"being applied to the‭ s‬aid Writs of Parliament,”‭ &‬c.‭ ‬before recited.
A man of so much good sense,‭ ‬learning,‭ ‬and judgement,‭ ‬as Sir William Blackstone is master of,‭ ‬must be‭ ‬well aware of the pernicious effects of investing the‭ ‬Representatives of the people with a legislative power,‭ ‬beyond the constitutional term of A single Session,‭ ‬without Re-election‭; ‬and therefore I cannot but be surprized at the unguarded manner in which he has expressed himself in his Comment on the two excellent‭ ‬Statutes of Edward III.‭ ‬for annual Parliaments‭; ‬viz.‭ ‬that the King is not,‭ “‬or ever was,‭ ‬obliged by those‭ ‬Statutes to call a‭ n‬ew Parliament every year,”‭ &c‬.‭ ‬He has caused the word new to be printed in Italics,‭ ‬as‭ ‬if he meant thereby to insinuate,‭ ‬that the Legislatures‭ ‬of those early times were not unacquainted with our‭ ‬modern idea of conferring on the popular Representatives a kind of continued senatorial dignity,‭ ‬without‭ ‬Re-election,‭ ‬for several years together‭; ‬whereas he‭ ‬certainly must have known that this corrupt modern‭ ‬practice has produced a new order of men amongst‭ ‬us,‭ ‬a most dangerous increase of aristocratical power,‭ ‬which was entirely unknown to our Ancestors in the‭ ‬glorious reign of Edward III.‭ ‬If he could shew that‭ ‬there‭ ever‬ was a Parliament,‭ ‬in those times,‭ ‬that was‭ not a‬ NEW Parliament, his Comment might be justified‭! ‬But it is notorious that Writs were issued to‭ ‬the Sheriff,‭ ‬for new Elections,‭ ‬almost‭ ‬every year during that whole reign:‭ ‬The Writs,‭ ‬for the most‭ ‬part,‭ ‬are‭ st‬ill preserved with the Returns upon them.‭ ‬In‭ ‬the catalogue of Election‭ ‬-Writs,‭ ‬which Prynn has‭ ‬given in his‭ ‬Brevia Parliamentaria Rediviva,‭ ‬p.‭ ‬4‭ ‬to‭ ‬6,‭ ‬there is an account of Writs issued for new Elections‭ ‬in every year of that King's reign,‭ ‬between his‭ ‬34th‭ ‬(when the last Act for annual Parliaments was made‭) ‬and his‭ ‬50th year,‭ ‬except‭ ‬3,‭ ‬viz.‭ ‬the‭ ‬40th,‭ ‬41st,‭ ‬and‭ ‬48th years‭; ‬in which years the Records of Summons‭ ‬to the Prelates and Lords of Parliament are also wanting,‭ ‬as appears by Sir William Dugdale's‭ “‬perfect Copy of Summons to Parliament,‭ o‬f the Nobility,”‭ &c.
And yet this affords no absolute proof that Parliaments‭ ‬were not held in those‭ v‬ery years for which the Writs are‭ ‬wanting‭; ‬because the bundles of Writs for the said years‭ ‬may have been lost or mislaid.‭ ‬The only wonder is,‭ ‬that‭ ‬more have not been absolutely lost,‭ ‬when we confider the‭ ‬very little care that had been taken of them‭; ‬for Prynne‭ ‬found many of these‭ Writs‬ dispersed amongst a vast‭ ‬miscellaneous heap of other records on various subjects,‭ ‬(as he himself relates in his Episte-Dedicatory to King‭ ‬Charles II.‭ ‬of his Brevia Parliamentaria Rediviva,‭) ‬calling‭ ‬the said heap a “confused Chaos,‭ ‬under corroding,‭ ‬putrifying cobwebs,‭ ‬dull,‭ ‬and filth,‭ ‬in the‭ ‬darkest corner of Caesar's Chapel in the White Tower,‭ as ‬more useless Reliques not‭ ‬worthy to he calendred,” &c.‭ ‬And,‭ ‬in page‭ ‬.103‭ ‬of that same work,‭ ‬he speaks of‭ ‬117‭ ‬Bundles of Writs,‭ ‬whereof‭ ‬97‭ ‬had only been then‭ lately ‬discovered,‭ ‬filed,‭ ‬and bundled,‭ ‬by himself: “But many of these‭ ‬117‭ ‬Bundles‭" (s‬ays he‭) “‬are‭ ‬not‭ ‬compleat,‭ ‬above half or three parts of the Writs‭ ‬being either rotted,‭ ‬consumed,‭ ‬maymed,‭ ‬torn, or‭ ‬utterly lost through carelessness,‭ ‬wet,‭ ‬cankers,‭ ‬or other casualties‭; ‬and some of them have not above‭ ‬two,‭ ‬three,‭ ‬or four Writs,‭ ‬and one or two but one Writ and Retorn remaining.”
But that there were really Writs for Parliaments,‭ ‬even in those three years,‭ ‬which appear to be wanting,‭ ‬at least in two of them,‭ ‬is very certain‭; ‬because it was‭ ‬in the‭ ‬40th year of this reign,‭ ‬as Sir Edward Coke‭ ‬informs us,‭ (‬4‭ ‬Inst.‭ ‬p.‭ ‬13,‭) ‬that the Pope demanded‭ ‬homage for the kingdoms of England and Ireland,‭ ‬and‭ ‬the arrears of revenue granted by King John to Pope‭ ‬Innocent III “whereupon the King,‭ in the same year, ‬calleth his Court of Parliament,”‭ (i) &c. ‬as Sir Richard‭ ‬Coke proves from the Parliament-Rolls of that year,‭ ‬No.‭ ‬8,‭ ‬remarking,‭ ‬at the same time,‭ ‬that the Act then‭ ‬made was‭ "‬never yet printed.‭" ‬See the margin,‭ ‬4th Inst.‭ ‬p.‭ ‬13.
‭(i)‬ In this Parliament it was unanimously agreed,‭ ‬by the Prelates,‭ ‬Dukes,‭ ‬Counts,‭ ‬Barons,‭ ‬and Commons, ‭ (“‬et‭ l‬a Commun,‭" ‬and‭ ‬again,‭ “‬et Communes,"‭) “‬that the said King John,‭ ‬nor no other,‭ ‬could put himself,‭ ‬nor his Realm,‭ ‬nor his People,‭ ‬in such Subjection,‭ ‬without their Assent‭ (‘s‬ans assent de eux'‭); ‬and,‭ ‬if it was‭ ‬done,‭ ‬it was done without their Assent,‭" (‬that is,‭ ‬without the‭ ‬Assent of the Commons; for the Assent of the Barons was‭ e‬xpressed in‭ ‬the Charter,‭) " ‬and contrary to his Oath at his Coronation,‭" ‬p.‭ ‬14.‭ ‬Whereupon Lord Coke remarks,‭ ‬in the margin,‭ ‬that‭ "‬no King can‭ ‬put himself,‭ ‬nor his Realm,‭ ‬nor his People,‭ ‬in such Subjection, without Assent of the Lords and Commons in Parliament,"‭ &‬c.
And it appears that a Parliament was held also in‭ ‬the‭ 4‬8th year of this reign,‭ ‬because supplies were in‭ ‬that year granted to the King by Parliament,‭ ‬as related by Sir Richard Baker,‭ ‬in his Chronicle,‭ ‬p.‭ ‬175,‭ ‬viz.‭ “‬in his eight and fortieth year,‭ ‬in a PARLIAMENT,‭ ‬is granted him a 10th of the Clergy,‭ ‬and a‭ 1‬5th of the Laity.‭" ‬So that there is but one year,‭ ‬out of so many,‭ ‬in which we cannot trace the‭ ‬meeting‭ ‬of the annual Parliaments:‭ ‬And annual Writs for new‭ ‬Elections were regularly issued for the first‭ ‬18‭ ‬years of‭ ‬the following reign,‭ (‬as appears by Prynn's “2d‭ ‬part of a brief Register and Survey of the several‭ ‬kinds and forms of parliamentary Writs,”‭ ‬pages‭ ‬116‭ ‬and‭ ‬117,‭) ‬till Richard‭ II‬.‭ (‬that wretched perjured‭ ‬monarch‭) ‬had rendered himself absolute,‭ (j)
After considering these unquestionable evidences of‭ ‬the issuing‭ ‬Writs annually for new Elections,‭ ‬it will be‭ ‬difficult to comprehend the meaning of Sir William‭ ‬Blackstone's Comment on the said two Acts for annual‭ ‬Parliaments:‭ "‬Not that he‭ (‬the King‭) ‬is,‭ ‬or ever was,‭ ‬obliged by these Statutes to call a new Parliament every year‭; ‬but only to permit a Parliament‭ ‬to fit annually for the redress of grievances and‭ ‬dispatch of business,‭ ‬if need be.‭— “These ‬last words‭" (s‬ays he‭) “are so loose and vague, that much of ou‬r monarchs,‭ ‬as were enclined to govern without Parliaments,‭ ‬neglected the convoking them,‭ s‬ometimes‭ ‬for a very considerable period,‭ ‬under pretence that‭ ‬there was no need‭ ‬of them,‭” &‬c.
(j) His arbitrary proceedings very soon afterwards occasioned his own Loss of Power, and total Ejectment from the Throne; so that, notwithstanding. his boasted Fitness in executing his favourite measures, he was at last reduced to the most abject acknowledgements of his own unworthiness to reign.
But‭ “‬these last words"‭ ‬are not so loose and vague‭ ‬as‭ ‬either to justify his own explanation of the said Statutes,‭ ‬(viz. not‭ “‬to call a new Parliament every year," but only to permit a Parliament to sit,‭" &‬c.‭) ‬or to‭ ‬excuse,‭ ‬in the least degree,‭ ‬the criminal neglects of‭ ‬those depraved monarchs who were inclined to govern‭ ‬without them:‭ ‬for the words,‭ “‬if need be,”‭ ‬cannot,‭ ‬according to the most obvious sense of the Act wherein‭ ‬they are found,‭ ‬be applied to the main purpose of the‭ ‬Act,‭ (‬the holding annual Parliaments,‭) ‬but merely to‭ ‬the remaining part of the sentence,‭ '‬viz,‭ “‬and more often:"‭ ‬that is,‭ "‬and more often,‭ ‬if need be.‭" ‬The Order,‭ "‬that a Parliament shall be holden EVERY YEAR ONCE,'‭ ‬is absolute,‭ ‬and the discretionary‭ ‬power,‭ ‬expressed in the words,‭ “‬if need‭ be‬,‭" ‬relates‭ ‬apparently to the calling Parliaments‭ "‬more often:”‭ ‬for,‭ ‬if the said discretionary words,‭ "‬if need be,"‭* ‬could,‭ ‬with any propriety,‭ ‬be applied to the whole‭ s‬entence,‭ ‬the Act itself would have been nugatory‭; ‬which could never be the intention of the Legislature:‭ ‬but the true meaning and sense of the Legislature is‭ ‬very clearly proved by the histories of those times:‭ ‬for‭ ‬it is manifest,‭ ‬not only that new Representatives‭ ‬were elected every year‭ (‬with only one exception‭) ‬for‭ ‬a considerable number of years after the last of the said‭ ‬Acts was made,‭ (‬which confirms the main purpose of‭ ‬the Acts,‭ viz. ‬the holding annual Parliaments,‭) ‬but it‭ ‬is also manifest,‭ ‬that Parliaments were frequently‭ ‬held‭ “‬more often‭" ‬than once a year‭; (k) ‬which amply confirms also what I have before said,‭ ‬concerning the meaning of the‭ d‬iscretionary power,‭ ‬expressed in the‭ s‬aid Act,‭ ‬by the words‭ "‬if need be.”
(k) Writs were issued for electing‭ ‬3‭ ‬new Parliaments in the‭ ‬6th year‭ ‬of Edw.‭ ‬III.‭ ‬2‭ ‬in his 11th year,‭ ‬3‭ ‬in his‭ 1‬2th year,‭ ‬and even‭ ‬4‭ ‬in‭ ‬his 14th year‭; ‬and there appear to have been a new Parliaments‭ ‬in the‭ ‬7th of R.‭ ‬II.‭ ‬See Prynn’s Brevia Parliamentaria Rediviva,‭ ‬p.‭ ‬5‭ & ‬6.
These very frequent Elections‭ (s‬ometimes two,‭ ‬three,‭ ‬and four,‭ ‬times IN ONE YEAR‭) s‬ufficiently prove that the power,‭ ‬delegated by the people to‭ ‬their Representatives,‭ ‬continued no longer in force than‭ ‬during the Session of the particular Parliament to which‭ ‬they were summoned‭; ‬which being‭ “‬once determined,"‭ ‬(says Prynne,‭ 1s‬t part of Brief Register,‭ &‬c.‭ ‬of Parl.‭ ‬Writs,‭ ‬p.‭ ‬334.‭) “‬they presently ceased to be Knights,‭ ‬Citizens, Burgesses,‭ ‬Barons,‭ ‬in any succeeding Parliaments or Councils,‭ ‬unless newly elected and reformed to‭ s‬erve in them,‭ b‬y the King's new Writs,‭ ‬as our Law‭ ‬Books‭" (‬referring to‭ ‬4‭ ‬Ed.‭ ‬IV.‭ ‬44.‭ ‬Brook,‭ ‬Officer,‭ ‬25.‭ ‬34‭ ‬Hen.‭ ‬VIII c.‭ ‬24.‭) “and experience resolve,‭” &‬c.‭ ‬And therefore Judge Blackstone's insinuation,‭ ‬against the calling of a new Parliament,‭ ‬has‭ ‬no real foundation:‭ ‬for,‭ ‬if it was the intention of the‭ ‬Legislature,‭ ‬in the two Acts abovementioned,‭ ‬that the‭ ‬King should ever summon any Parliament at all they‭ ‬must necessarily be understood to mean a new Parliament on all occasions‭; ‬i.‭ ‬e.‭ ‬not only that the regular Parliaments,‭ ‬which they ordained‭ "‬to be holden every year‭ ‬once,”‭ s‬hould be new Parliaments,‭ ‬but those also that‭ s‬hould be summoned upon any extraordinary unforeseen occasions‭; ‬which is sufficiently expressed in the‭ 1s‬t of the said Acts,‭ ‬by the words,‭ “‬and more often, if need be,” ‬The meaning of the Act is unquestionably proved by the actual issuing of writs,‭ ‬to the Sheriffs,‭ ‬for electing Knights,‭ ‬Citizens,‭ &‬c.‭ ‬for two,‭ ‬three,‭ ‬and sometimes four new Parliaments,‭ ‬in one‭ ‬year,‭ ‬as mentioned above:‭ ‬And if any person should‭ ‬object,‭ ‬that such very frequent Election must be attended with insuperable difficulties and inconveniences,‭ ‬we may quote the experience of all ancient times,‭ ‬as‭ ‬affording ample and sufficient proofs to the contrary; “there being not above two or three cases of elections‭ ‬questioned,‭ ‬or complained of,‭ ‬from‭ ‬49‭ ‬Hen.‭ ‬III.‭ ‬till‭ ‬22‭ ‬Edw.‭ ‬IV.” (‬that is,‭ ‬more than‭ ‬200‭ ‬years,‭) “‬for ought that appears by the Retornes or Parliament-Rolls,‭ ‬and not so much as ONE double‭ ‬Retorne or Indenture,‭ ‬wherewith all the late Bundles,‭ ‬or Writs,‭ ‬are stored,‭ ‬and the House of‭ ‬Commons and late Committees of Privileges pestered,‭ ‬perplexed,‭ ‬to the great retarding of‭ ‬the‭ ‬more weighty public affairs of the King and Kingdom.” Prynne,‭ ‬Brevia Parl.‭ ‬Rediv,‭ ‬p.‭ ‬137.‭ ‬This‭ ‬enormous evil,‭ ‬the retardment of business,‭ ‬by undue‭ ‬Returns,‭ ‬will not‭ (‬I may venture,‭ ‬without the spirit‭ ‬of prophecy,‭ ‬to assert‭) ‬be remedied by the new Regulation for that purpose.‭ ‬The Commons were never‭ ‬(in ancient times of Freedom‭) ‬esteemed the proper‭ ‬Judges of their own Elections,‭ ‬but the King alone,‭ ‬that is,‭ ‬in his limited judicial capacity,‭ ‬by his Justices‭ ‬and his sworn Juries,‭ ‬in the Courts of Common-Law.‭ ‬If my countrymen will seriously confider all these‭ ‬points,‭ ‬they must be convinced that the only sure‭ ‬method of healing the alarming distempers of our political Constitution (l)‭ ‬is to restore to the people their‭ ‬ancient and just Right to elect a new Parliament,‭ “‬every year once,‭ ‬and more often if need be,” ‬whatsoever Judge Blackstone may think of it‭!
(l) Viz.‭ ‬the‭ ‬enormous national Debt‭; ‬the numerous Pensions‭; ‬the‭ sec‬ret parliamentary Influence; a standing Army of near 100 Battalions of Foot,‭ ‬besides Cavalry,‭ in time of ‬Peace‭! &‬c. &c.‭ &c. w‬hich must render the Estates and property of individuals precarious‭ ‬and insecure,‭ ‬or finally EAT THEM UP with growing burthens,‭ ‬if‭ ‬these fatal symptoms‭ ‬of the most dangerous political consumption are‭ not speedily ‬checked and thrown off,‭ ‬by the wholesome prescriptions‭ o‬f a free and equal Representation of THE PEOPLE.
No Parliament could have any right to deprive the‭ ‬people of this inestimable Law,‭ ‬unless the Representatives had expressly consulted their respective constituents upon it‭; ‬as the alteration was of too much moment to be intrusted to the discretion of any Representatives or Deputies whatsoever,‭ ‬being infinitely more‭ ‬important than‭ “‬any new device,‭ ‬moved on the King's behalf,‭ ‬in Parliament,‭ ‬for his aid, or the like‭;” ‬for‭ ‬the most essential and fundamental Right of the whole‭ ‬body of the Commons‭ (‬I mean the Principals,‭ ‬not the Deputies or agents‭) ‬was materially injured by the fatal change,‭ ‬and the people's power of controul,‭ ‬for the‭ ‬general good of the kingdom,‭ ‬was thereby apparently‭ ‬diminished!‭ s‬o that,‭ ‬if it is the duty of Representatives‭ (‬even in‭ “‬any new device” of mere‭ “‬aid,‭ ‬or‭ ‬the like”) to consult their Constituents,‭ ‬how much‭ ‬more,‭ ‬upon the proposal of fo material an alteration in the Constitution,‭ ‬ought they to have answered,‭ ‬that,‭ "‬in this new device,‭ ‬they DARE NOT AGREE‭ ‬WITHOUT CONFERENCE WITH THEIR COUNTRIES!”‭ ‬These are the words of Lord Coke,‭ ‬who mentions them as the proper answer,‭ “when ‬any‭ ‬new‭ ‬device is moved,” ‭&‬c.‭ ‬and he adds,‭ “‬whereby‭ ‬it appeareth‭" (s‬ays he‭) “‬that SUCH CONFERENCE is warrantable by the law and Custome of Parliament,” 4‭ ‬Inst.‭ ‬p.‭ ‬14‭; s‬o that no Representative can be justified‭ ‬(according to‭ “‬the Law and Custome of Parliament"‭) ‬who refuses to receive the Instructions of his Constituents,‭ ‬notwithstanding that several very sensible,‭ ‬worthy,‭ ‬and‭ (‬I believe‭) s‬incerely patriotic gentlemen have‭ ‬lately declared themselves to be of a contrary opinion;‭ ‬but,‭ ‬when they peruse the several authorities which I‭ ‬have cited,‭ ‬concerning the absolute necessity of a‭ ‬very‭ ‬frequent appeal to the sense of the whole body of the people,‭ ‬I trust,‭ ‬in their candour and love of truth,‭ ‬that they‭ ‬will alter their sentiments
‭(‬55‭) ‬This little tract contains a great deal of intelligence and sound reasoning concerning the natural‭ ‬Rights of mankind,‭ ‬and is highly worthy the perusal‭ ‬of every good citizen who desires information concerning the present differences with the British Colonies:‭ ‬and,‭ ‬upon the same occasion,‭ ‬the clear and unanswerable arguments of another able writer also,‭ ‬who signs‭ ‬himself “Free Swiss,” must not be forgot:‭ ‬The‭ title ‬of the work,‭ ‬last mentioned,‭ s‬eems indeed to be the only exceptionable part of it:‭ ‬viz. “Great-Britain’s Right‭ t‬o tax‭ ‬her Colonies,‭ ‬placed in the clearest light, by a‭ ‬Swiss;” for a Right,‭ ‬without a just foundation,‭ ‬cannot with propriety be instituted‭ “‬a Right‭;" ‬nevertheless he has,‭ ‬most certainly,‭ "‬placed in the clearest light" the impropriety of any such claim upon the Colonies.
‭(m) — “‬the one was called Richard Empson,‭ ‬the other‭ ‬Edmund Dudley,‭ ‬both Lawiers,‭ ‬and‭ both ‬for having‭ s‬erved the Kings turne lately made BARONS OF THE EXCHEQUER."‭ — “‬Annales of England by Francis Lord‭ ‬Bp of Hereford,”‭ (viz. ‬Bp Godwyn,‭ ‬author of the celebrated hist. de Praesulibus Angliae,) “‭ — ‬englished,‭ &c‬.‭ with ‬the author's consent by Morgan Godwyn,” 1630.
‭(‬56‭) ‬They might have alledged,‭ ‬that if an ambassador,‭ s‬ent from this kingdom to France,‭ ‬Spain,‭ ‬or to‭ ‬any other foreign State,‭ o‬ut of the Dominions of the imperial Crown of Great Britain,‭ s‬hould notoriously betray his King and Country,‭ ‬and plot their Destruction,he might legally and constitutionally be punished according to the letter and meaning of the said Acts of Parliament‭; ‬and also that any other British Subject whatsoever,‭ ‬that is,‭ ‬in like manner,‭ ‬guilty of Treason to his‭ ‬King and Country,‭ ‬during his residence in a foreign‭ ‬realm,‭ ‬may be treated accordingly‭; ‬because all men‭ ‬certainly are accountable to their country for any such‭ ‬Treason‭; ‬and,‭ ‬as they cannot be tried in the foreign‭ ‬realms,‭ ‬where the offences were committed,‭ ‬it is reasonable and just‭ ‬to suppose,‭ ‬that they may be tried‭ ‬in England,‭ b‬y an impartial Jury,‭ ‬though the same are‭ ‬not “neighbours‭ ‬to the fact,"‭ ‬nor impannelled de vicineta, that is,‭ ‬from the neighbourhood where the offence was committed‭; ‬for,‭ ‬though this circumstance is‭ ‬essentially necessary to the‭ ‬Legality of a Jury in every Other‭ ‬cafe,‭ ‬yet the law does not require impossibilities, and it‭ ‬may therefore‭ (‬perhaps‭) ‬be legally dispensed with, when‭ ‬it is apparent,‭ ‬from the nature of the case,‭ ‬that such‭ ‬an unexceptionable Jury cannot be obtained,‭ ‬and yet that‭ ‬an exemplary punishment is manifestly due to the Traitor or Traitors:‭ ‬but when Treasons and other offences are committed in any country under the dominion of the Crown of England,‭ ‬where the criminals‭ ‬might have a legal Trial according to the laws of this‭ ‬realm,‭ (‬as in Ireland,‭) the said most ess‬ential formality of‭ ‬being tried by a Jury de vicineto cannot be dispensed‭ ‬with‭; ‬because this would deprive the Subject of an unalienable Right,‭ ‬and alter a‭ “‬fundamental Law of this‭ ‬realm;" so that any Judge,‭ ‬who should venture to‭ ‬enforce the said Acts,‭ ‬in such cases,‭ ‬would manifestly DESERVE AN IGNOMINIOUS DEATH,‭ ‬as much‭ ‬as Dudley and Empson‭!
The examination of this point gives some general‭ ‬idea how far the Power of the high Court of Parliament‭ ‬(notwithstanding that imaginary‭ “‬omnipotency"‭ ‬which‭ s‬ome men have ignorantly attributed to it‭) ‬may be allowed to extend‭; “‬for the more high and absolute the jurisdiction of the court is,‭ ‬the more just and honourable it ought to be in the proceeding,‭ ‬and to give‭ ‬example of Justice to inferior courts.”‭ ‬4th Inst,‭ ‬p.‭ ‬37,‭ ‬Which is most strictly true‭; ‬for,‭ ‬whenever the supreme‭ ‬temporal powers exceed the honourable limits of natural‭ ‬justice and Truth,‭ ‬they lessen their own dignity,‭ ‬and,‭ ‬in proportion to their errors,‭ ‬forfeit that respectful consideration and esteem,‭ ‬which would otherwise be due‭ ‬from their subjects.‭ ‬And we must remember,‭ ‬likewise,‭ ‬that the being‭ “just ‬and honourable”‭ ‬in mere profession‭ o‬f words,‭ ‬without the reality,‭ ‬will have very little‭ ‬weight with the body of the People,‭ ‬who are endued‭ ‬with common-sense,‭ ‬as well as their superiors,‭ ‬to discern‭ ‬what is just and honourable from that which is merely‭ ‬called so‭; ‬and that a pretence to justice and honour,‭ ‬in a‭ ‬bad cause,‭ ‬is only an aggravation oi injury and iniquity!‭ ‬The most wicked ordinances have sometimes been ushered into the world under the most fancified titles and‭ s‬pecious pretences!‭ ‬The abominable Act beforementioned,‭ ‬of Hen.‭ ‬VII.‭ ‬was expressly said to be against‭ ‬great enormities and offences,‭ ‬which‭" (‬have‭) “‬been‭ ‬committed,‭ ‬and have daily,‭ ‬contrary to the good‭ ‬Statutes,‭ ‬for many and divers behoovefull considerations,‭ s‬everally made and ordained,‭ ‬to the displeasure of Almighty God,‭ ‬and the great let of the common Law and wealth of the land.”
“Now,‭ ‬notwithstanding this‭ “FAIR FLATTERING ‬PREAMBLE,”‭ ‬as Sir Edward Coke calls it,‭ ‬yet “THE PURVIEW of that act” ‭(‬as he justly remarked‭) “‬tended,‭ ‬in the execution,‭ ‬contrary EX DIAMETRO,‭ ‬viz.‭ ‬to the high displeafure of Almighty God,‭ ‬the great‭ LET‬,‭ ‬nay,‭ ‬the utter Subversion,‭ ‬of the common‭ ‬Law,‭ ‬and the great Let of the Wealth of this Land‭;" ‬ibid.‭ ‬p.‭ ‬40.‭ ‬as,‭ ‬indeed,‭ ‬every other Act of Parliament‭ ‬must inevitably do,‭ ‬which perverts‭ “‬the due course of‭ ‬the Law,”‭ ‬and robs the subjects of any fundamental‭ ‬Right.‭ (n) ‬And therefore,‭ ‬if any such Act should be‭ ‬made‭ ‬in our days,‭ (‬howsoever specious the preamble,) is our duty,‭ ‬as good subjects,‭ ‬to remember that the‭ s‬ame‭ ought ‬to be considered as null and‭ ‬void of itself, and that it cannot authorize or indemnify the Judges,‭ ‬or any other persons,‭ ‬who presume to enforce it‭; ‬for‭ a‬ll men‭ (‬and Judges in particular‭) ‬ought to take warning,‭ (‬from “the fearful end of those two time-servers, Dudley and Empson,”)‭ ‬that such an active obedience‭ ‬would,‭ ‬perhaps,‭ ‬endanger their own necks! For suppose,‭ ‬2dly,‭ ‬that such an Act was to be decked with the‭ ‬most flattering title‭; ‬let us call it,‭ ‬for inftance,‭ “‬An‭ Act fo‬r the‭ BETTER REGULATING the government” ‬of‭ ‬any particular province‭; ‬or,‭ ‬3dly,‭ ‬let it be‭ ‬called‭ ‬"An Act for THE MORE IMPARTIAL ADMINISTRATION OF JUSTICE,‭ ‬in the cases of Persons quesioned for any acts done by them in the Execution OF THE Law,‭ ‬or for the Suppression (o) of Riots and‭ ‬Tumults,"‭ &‬c.‭ ‬or,‭ ‬4thly,‭ s‬uppose such an injurious‭ ‬and unlawful Act‭ s‬hould be intitled‭ “‬An Act for making‭ ‬MORE EFFECTUAL PROVISION FOR THE GOVERNMENT of‭ ‬any particular province, &c. yet,‭ ‬if the Purview"‭ (‬as Lord Coke justly remarked‭) ‬of any‭ su‬ch imaginary Acts should‭ “‬tend,‭ ‬in the execution, contrary‭ EX‬ DIAMETRO"‭ ‬to all these specious pretences,‭ s‬et‭ ‬forth in their titles and preambles,‭ ‬by establishing‭ ‬principles‭ whereby “any fundamental Law of the Realm is alt‬ered,"‭ ‬the same would manifestly endanger the‭ necks (I must‬ repeat it‭) ‬of‭ ‬any judges that were imprudent enough to‭ enforce‬ force them,‭ ‬notwithstanding that‭ the ‬express authority of‭ King, Lords, ‬and Commons, should be alleged as their sufficient warrant‭; ‬because‭ we ‬find that the like Authority afforded no justification or excuse for poor Empson and Dudley,‭ ‬in a fimilar‭ case‬,‭ ‬neither did the consideration of their having acted‭ by ‬parliament any Authority render their wretched fate‭ ‬more pitiable in the eyes of the public! And therefore I sincerely wish that all modern Time-servers‭ ‬may‭ ‬have prudence enough to form‭ (b‬y that plain example‭) som‬e Reasonable judgement concerning the imaginary‭ “‬Omnipotence of Parliament,"‭ ‬which cannot insure its‭ ‬wretched votaries from the most ignominious punishment! nor secure even the Parliament itself from the‭ ‬just and lasting Censures of the Sages of our Law,‭ s‬uch‭ ‬as Lord Coke,‭ ‬for instance,‭ ‬who warned them in another place,‭ ‬also,‭ ‬expressly upon this point:‭ — “By ‬colour of which Act,"‭ (s‬ays he,‭ ‬meaning the said unjust Act of II Hen.‭ ‬VII.‭) “s‬haking this FUNDAMENTAL LAW,‭" (t‬he Law of Juries,‭) “‬it is‭ ‬not credible what horrible Oppressions‭ and ‬EXACTIONS,‭ ‬to the undoing of infinite numbers of people,‭ were committed by ‬Sir Rich.‭ ‬Empfon,‭ ‬Knt.‭ and ‬Edm.‭ ‬Dudley,‭ &‬c.‭ ‬and,‭ ‬upon this UNJUST and INJURIOUS ACT,‭ (‬as commonly in like cases it falleth‭ ‬out,‭) ‬a new Office was erected,‭” &‬c.‭ ‬And in the‭ nex‬t paragraph he adds, ‭— “‬And the FEARFULL‭ ‬ENDS‭ ‬OF THESE TWO OPPRESSORS” (s‬ays‭ ‬he‭) “should deterre other‬s from commiting the like,‭ ‬and‭ shoul‬d ADMONISH PARLIAMENTS,‭ that‬,‭ ‬instead of this ordinary and pretious Trial PER LEGEM‭ ‬TERRAE,‭ ‬they bring not in absolute and partial Trials‭ by Discretion.” 2d‬ Inst.‭ ‬p.‭ ‬51.
‭(n) ‬As for instance,‭ le‬t us suppose,‭ (1st,) ‬that an Act is made,‭ ‬to‭ st‬op up or proscribe the passage to any sea-port town,‭ ‬or any‭ haven‬,‭ s‬hore of the sea,‭ ‬or great river,‭ ‬without the Consent,‭ ‬and to the great‭ ‬Detriment,‭ ‬of all the neighbouring inhabitants; such an Act would‭ ‬be‭ “‬fundamentally wrong,‭" ‬as being contrary to the first or‭ ‬most essential‭ ‬Right of‭ ‬mankind,‭ ‬the Law of Nature:‭ ‬for it is clearly‭ ‬laid down by Bracton,‭ ‬that all ports,‭ ‬havens,‭ s‬hores of the sea,‭ and ‬great rivers,‭ ‬are free to all peaceable passengers,‭ (‬but more particularly,‭ ‬We may‭ a‬dd,‭ ‬to the nearest inhabitants.‭) ‬by the Law of Nature and of Nations:‭ “‬NATURALI VERO JURE‭ ‬communia sunt‭ omnia baec, ‬aqua profluens, aer,‭ e‬t MARE,‭ ET‬ LITTORA MARIS,‭ ‬quafi matis accessoria. Nemo enim ad littus maris accedere probibetur,‭ ‬dum tamen a villis et aedificiis abstineat,‭ ‬quia littora sunt‭ ‬DE JURE GENTIUM COMMUNIA,‭ f‬icut et mare,‭" &c‬.‭ ‬And‭ a‬gain: “Publica‭ v‬ero funt OMNIA FLUMINA et PORTUS,‭ &‬c. RIPARUM etiam usus publicus est DE JURE GENTIUM, sicut ipsius sluminis.‭ ‬Itaque naves ad eas applicare, sunes arboribus ibi natis religare,‭ ‬onus aliquae‭ ‬in eis reponere cuivis liber‭ est‬,‭ ‬ficuti‭ ‬per ipsum fluvium navigare:‭ ‬fed proprietas earum eft illorum quorum‭ ‬praediis adhaerent,‭" &‬c.‭ ‬lib,‭ 1‬,‭ ‬c.‭ ‬12,‭ ‬p.‭ ‬7‭ & ‬8.‭ ‬So that such an Act‭ would‬ be manifestly contrary to the Law‭ o‬f Nature and Nations,‭ ‬and‭ ‬consequently is such as NO LEGISLATURE ON EARTH can render valid or legal,‭ ‬because natural Rights and the Law of Nature are‭ ‬immutable,‭ “‬Jura enim naturalia sunt IMMUTABILIA:” And again,‭ “‬Jura enim naturalia dicuntur IMMUTABILIA,‭ ‬quia non possunt‭ ex‬ toto ABROGARI VEL AUFERRI,‭" &c. I‬b.‭ ‬c.‭ ‬5,‭ ‬p.‭ ‬4,‭ ‬And besides, it must be remembered,‭ ‬that to proscribe the passage or highway to any city or town‭ (‬especially if it is done with an avowed design‭ ‬to distrefs the inhabitants thereof in their lawful occupations)‭ ‬is an‭ ‬intolerable nuisance, which is clearly adjudged,‭ ‬in Law,‭ ‬to be such a‭ “‬Malum in se‭" ‬as can never be made lawful‭! — "‬But MALUM‭ ‬IN SE the King NOR ANY OTHER can dispenfe‭;” Mes MALUM ‬IN SE LE ROY NE NUL AUTRE poit dispenser,‭ s‬icome le Roi veut pardonner a occire un autre,‭ ‬ou lui licence A FAIRE NUSANCE IN LE HAUT CHEMIN, CEO EST VOID,”‭ &c. ‬II Hen.‭ ‬VII.‭ ‬p.‭ ‬12.‭ “‬Wherefore it is generally true” ‭(‬as Judge Vaughan remarks.‭) “that MALUM PER SE‬ cannot be dispensed with,” ‭&‬c.‭ ‬Rep.‭ ‬p.‭ ‬334.‭
Or 2dly,‭ s‬uppose an Act should be made,‭ ‬to impower the Governor of a Province,‭ “‬without the consent of the Council,” to appoint‭ ‬Judges and other Law-Officers,‭ “‬who shall hold their Commissions “DURING THE PLEASURE OF‭" ‬the Crown,‭ ‬instead of the‭ ‬approved and established‭ legal ‬condition,,‭ “quamdiu se bene gesserint;” ‬thereby setting up WILL AND PLEASURE ABOVE LAW AND‭ ‬JUSTICE,‭ ‬which are the first and most essential Rights of the People! ‭— ‬Would not such an Act tend to‭ “‬the great Let,‭ ‬nay the‭ UTTER SUBVERSION‬ of the Common-Law,"‭ &‬c.‭ ? ‬Suppose like-wise it should be ordained,‭ ‬in such an Act,‭ ‬that‭ “‬the Freeholders and inhabitants of the several townships,"‭ ‬in any particular province,‭ sh‬all not be permitted‭ (‬even when‭ “‬they are authorized to‭ assemble tog‬ether‭) ‬to treat upon matters of the most GENERAL CONCERN” ‭— “‬except the business‭ (‬be‭) ‬expressed in the leave given by the Governor;” which implies that one or a few individuals have‭ a ‬more equitable pretension‭ “‬to treat upon matters of the most GENERAL CONCERN”‭ ‬than even the general Meeting,‭ ‬or whole collective Body of persons‭ ‬themselves who are concerned‭! — ‬a principle which is subversive of all‭ “‬common Right and natural Equity;” and‭ ‬Consequently must tend‭ “‬to the high Displeasure of almighty God,” as well as‭ “‬the great Let of the wealth of the land."‭ ‬And,‭ ‬to‭ compleat‬ the iniquity of such an imaginary Act,‭ ‬let us suppose a‭ clause‬,‭ ‬whereby‭ “‬it shall and may be Lawful" ‭(LAWFUL!) “‬for the justices, &c.‭ ‬in any Cause or Action which shall be brought to issue, to order the said Cause or Action to be tried in any County, OTHER THAN THE COUNTY in which the said Cause‭ or A‬CTION SHALL HAVE BEEN BROUGHT OR LAID,‭ ‬BY A‭ JURY ‬of such OTHER COUNTY,‭ ‬as they shall judge fit,” &c. ‭— ‬Such a clause must strike at the very Foundation of‭ ‬Justice‭!
Or,‭ ‬3dly,‭ ‬if this imaginary Act should not be esteemed suffiently‭ ‬injurious to the People,‭ (‬though it is apparently calculated to rob them‭ of that funda‬mental and unalienable Right,‭ “‬the Trial by a Jury “NE VICINETO,"‭) ‬let us suppose an Act still more PARTIAL‭ ‬(if possible‭) ‬in the “administration of Justice!” and rendered still‭ ‬more aggravating and insulting by beating a title “contrary EX DIAMETRO” to the‭ ‬purport of it‭! — ‬Let us‭ (‬I say‭) ‬endeavour to‭ s‬tretch that notorious Injustice to the utmost extent of inconvenience‭ ‬and injury that a wicked imagination can possibly conceive or express‭! ‬that is,‭ ‬to establish a Power of removing the Causes and Trials‭ (‬and‭ ‬even those which are of the most importance,‭ ‬viz,‭ ‬for capital‭ ‬offences‭) ‬not only to a neighbouring‭ ‬County, or to a more distant Colony, but even,‭ ‬if caprice should require it,‭ ‬to the furthermost extent of the‭ ‬Globe,‭ ‬that is,‭ (‬without aggravation,‭) ‬as far as the East is from the West!
Or,‭ ‬4thly,‭ ‬if we may conceive the idea of an Act calculated to “fulfil the Measure of Iniquity,"‭ ‬let us suppose an Act expressly for‭ ‬the purpose of establishing the arbitrary Laws of France,‭ (“Quod Principi ‬placuit babet vigorem Legis,‭" &‬c.‭ s‬ee my Preface thereupon,‭) ‬and,‭ ‬in order that it may be destructive to the Souls,‭ ‬as well‭ ‬as the Bodies and Property,‭ ‬of the wretched Subjects,‭ (‬as I have already shewn,‭) ‬let us suppose that ample provision is made therein for‭ ‬the Establishment‭ (‬not the mere Toleration‭) ‬of downright Idolatry‭ ‬and Image-Worship‭! ‬for the Toleration of the most notorious Exorcisms‭ (“‬Exorcismus Aquae;”‭ — “‬Exorcismum Salis.‭" — “‬Exorciso te,‭ ‬creatura Salis‭;" — s‬ee the Missal‭) ‬and SPIRITUAL WITCHCRAFT‭! ‬In short,‭ ‬let us suppose that such an Act provides for the Establishment of that adulterated Religion which has long‭ ‬been perplexed with all the Enthusiasm of heathen ignorance,‭ (‬long‭ ‬Prayers, vain Repetitions, “‭ “a‬s the Heathen do,"‭) ‬and bears the most‭ ‬apparent marks of Antichist,‭ ‬insomuch that we might be certain,‭ ‬at‭ ‬least,‭ ‬who was the first spiritual Instigator and Promoter of such a‭ ‬Bill,‭ ‬though the bodily Proposer of it should be lucky enough to‭ ‬remain undiscovered‭! ‬Who shall presume to say,‭ ‬that any Power on‭ ‬Earth‭ (‬whatsoever weak and ignorant men may think of the Omnipotence of Parliament‭) ‬has Authority or Right,‭ ‬either to establish such‭ ‬notorious spiritual Abominations,‭ ‬or to render lawful such gross Iniquity and palpable Injustice‭!
(o) Though‭ “‬the Suppression of Riots and Tumults" is here Included‭ ‬as one of‭ “‬the fair flattering‭” ‬Pretences in the Title of the‭ ‬above-mentioned imaginary Act of Parliament,‭ ‬yet it it is apparent‭ ‬that the wicked Act itself would be the most effectual method that‭ ‬could possibly have been deviled for the Promotion,‭ ‬instead‭ o‬f “THE Suppression,‭ ‬of Riots and‭ ‬Tumults‭;” ‬for which,‭ ‬consequently,‭ ‬none but the Promoters and Makers of such an unjust Law‭ ‬could,‭ ‬with any propriety,‭ ‬be esteemed accountable! since it is true,‭ ‬even to‭ ‬a maxim,‭ ‬that‭ “‬He makes the Strife‭ (or "‬Tumult‭") “who first offends” — “Qui primum peccat, ille facit rixam,” P‬rin.‭ ‬Leg.‭ ‬et AEquit.‭ ‬p.‭ ‬92.
‭(‬57‭) ‬Or “Ornick.”‭ ‬See‭ ‬3d Inst. p.‭ 11, M‬argin.
‭(‬58‭) “‬Gerrarde,‭ ‬Chauncelor de Irelande,‭ ‬move cest‭ ‬question al Couniel la Roygne,‭ ‬f.‭ si‬ un Countee‭ ‬ou Seignior de Irelande,‭ ‬que commit Treason in‭ I‬relande per overt Rebellion,‭ ‬Terra arraygne et mis a son tryall in Engleterre pour le offense,‭ ‬per l'estatute de‭ ‬26‭ ‬H.‭ ‬8.‭ ‬cap.‭ ‬13.‭ — ‬32‭ ‬Hen.‭ ‬8.‭ ‬cap.‭ ‬4.‭ — ‬35‭ ‬H.‭ ‬8,‭ — ‬2‭ ‬ou‭ ‬5‭ ‬Ed.‭ ‬6.‭ ‬II.‭ — ‬Et suit tenus per‭ ‬Wray,‭ ‬Dyer,‭ ‬et Gerrarde,‭ ‬Atturney General,‭ ‬QUE‭ ‬IL NE POIT,‭ ‬car il ne poit haver son tryal ici PER SES Peeres,‭ ‬ne per ascun Jury de XII.‭ ‬pur‭ ‬ceo que il n’est subject‭ d’‬Engleterre,‭ ‬mes de Irelande,‭ ‬et‭ ‬ideo LA‭ ‬SERRA SON TRYAL.‭ ‬Et dictum eft,‭ ‬que le usage la,‭ ‬d‭'‬attainder un Peere,‭ ‬est per Parliament,‭ ‬et nemy per Pares.”‭ ‬Dyer's Reports,‭ ‬p.‭ ‬360.‭ ‬b.
‭(‬59‭) “But ‬if ye have respect to persons,‭ YE COMMIT SIN‬,‭ an‬d are convinced of the Law as TRANSGRESSORS.” James ii.‭ ‬9.
(60‭) “‬Per pares suos,"‭ (‬Magna Charta,‭ ‬C.‭ ‬14.‭) ‬Or‭ ‬per legale Judicium Parium suorum.”‭ ‬lb.‭ ‬c.‭ ‬29.
‭(61) — “‬Per sacramentum‭ proborum‬ et legalium‭ ‬hominum DE VICINETO.” Mag.‭ ‬Charta,‭ ‬c.‭ ‬14.
(62‭) — “‬Justiciarii per Breve Regis scribunt‭ ‬vicecomiti comitatus IN QUO FACTUM ILLUD FIERI SUPPONITUR,‭ ‬quod ipse venire faciat coram eisdem justiciariis,‭ ‬ad certum diem per eos limitatum,‭ ‬duodecim probos et legates homines DE VICINETO ubi illud factum supponitur;‭ ‬qui neutram‭ ‬partium fic placitantium ulla affinitate attingunt."‭ ‬Fortescue de Laud.‭ ‬Leg.‭ ‬Ang.‭ ‬c.‭ ‬25,‭ ‬p.‭ ‬54.‭ ‬b.
‭(‬63‭) “‬Item,‭ ‬Whereas it is contained in the Great‭ ‬Charter of the Franchises of England,‭ ‬that none shall be imprisoned,‭ ‬nor put out of his Freehold,‭ ‬nor of his Franchises nor free Custom,‭ ‬unless it be‭ ‬"BY THE LAW OF THE LAND:‭ ‬It is accorded, assented,‭ ‬and established,‭ ‬that from henceforth none‭ sh‬all be taken,‭ ‬by petition or suggestion made to‭ ‬our Lord the King,‭ ‬or to his Council,‭ ‬unless it be‭ ‬by Indictment or Presentment of his good and lawful‭ ‬People OF THE SAME NEIGHBOURHOOD WHERE‭ ‬SUCH Deeds be done,‭ ‬in due manner,‭ ‬or by Process made by writ-original at the Common Law. ‭ ‬Nor that none be put out of his Franchises,‭ &‬c,‭ ‬unless he be DULY brought in answer,‭ ‬and forejudged of the same BY THE COURSE OF THE‭ ‬LAW.‭ ‬And if any be done against the same,‭ ‬it‭ s‬hall be redressed and HOLDEN FOR NONE." Ed.‭ ‬III.‭ ‬c.‭ ‬4.
‭(‬64‭) — — “‬In presentia duodecim side dignorutn‭ ‬virorum FACTO VICINORUM,‭ ‬de quo agitur, et circumstantiis ejus:‭ ‬qui et noscunt eorundem‭ ‬testium mores,‭ ‬maxime si VICINI ipsi suerint noscunt etiam,‭ ‬et si ipsi sint credulitate digni,‭" &‬c.‭ ‬Fortescue de Laud.‭ ‬Leg.‭ ‬Ang.‭ ‬c.‭ ‬28,‭ ‬p.‭ ‬64.‭ ‬See also‭ ‬the‭ ‬25‭ ‬and‭ ‬26th chapters of that excellent little book.
(65‭) “‬Item per antiquam Legem, et consuetudinem‭ ‬Regni,‭ ‬omnes exitus quae emergent in aliqua Curia‭ ‬de Recordo infra Regnum,‭ ‬nifi pauci de quibus non‭ ‬est hic necesse tractandum,‭ ‬debet triari per xii.‭ ‬liberos et legales homines DE VICINETO,‭ &‬c.‭ ‬qui nulli partium ulla affinitati attingent.”‭ ‬Doct.‭ & ‬Stud.‭ ‬c.‭ ‬7.‭ ‬p.‭ ‬26‭ ‬b.
‭(‬66‭) ‬Jenkinfius Redivivus,‭ ‬p.‭ ‬65.
(67‭) ‬And Parliaments at that time were preserved in‭ ‬purity and independence by a‭ ‬very frequent renewal of THE‭ ‬POPULAR REPRESENTATION, viz. “every year once, and MORE OFTEN‭ if (‬there was‭) ‬need,‭” &‬c.‭ w‬hich I have already proved in pages‭ ‬160‭ ‬to‭ ‬170‭ ‬of‭ ‬this Declaration‭; s‬o that there was not then the least‭ ‬room even for the bare suspicion of undue influence‭!
‭(‬68‭) ‬In the time of Sir Edward Coke the Charters‭ ‬had been expressly confirmed by THIRTY-TWO‭ ‬DIFFERENT PARLIAMENTS,‭ ‬as he himself witnesses in the Proeme of his‭ ‬2d Institute:‭ “‬The‭ s‬aid‭ ‬2‭ ‬Charters"‭ (s‬ays he‭) “‬have been confirmed,‭ ‬established,‭ ‬and commanded to be put in execution,‭ b‬y 32 several acts of Parliament.”
(69‭) ‬Though some particular articles of Magna‭ ‬Charta are indeed rendered useless,‭ ‬at this day,‭ ‬by‭ s‬ubsequent Statutes,‭ ‬yet this affords no argument against the general stability of the Charter,‭ with respect ‬to its main object,‭ ‬the Freedom of the People.‭ ‬It is a Charter of Liberties,‭ ‬and therefore the subsequent Statutes,‭ ‬which enlarged those Liberties,‭ (‬by‭ ‬annihilating the several oppressive customs which‭ ‬are mentioned therein and limited within certain‭ ‬bounds,‭ ‬as Knights Service,‭ ‬Escuage,‭ W‬ards,‭ ‬and Liveries,‭ &‬c.‭) ‬cannot be said to operate against‭ ‬the Charter,‭ ‬but rather in aid of it‭; ‬for though the said oppresive Tenures and dangerous Prerogatives are permitted by the Charter in a certain degree,‭ ‬yet the apparent intention of the several articles,‭ w‬herein they‭ ‬are mentioned,‭ ‬was not to establish, but only to restrain them,‭ ‬as much as the circumstances,‭ ‬temper,‭ ‬and prejudices of those early times would permit‭; s‬o‭ ‬that the Statutes,‭ ‬which afterwards entirely removed‭ ‬the oppression,‭ ‬cannot be esteemed contrary to the purpofe of the Charter,‭ ‬because they enlarged those Liberties and Franchises of the people,‭ ‬to which the‭ ‬Charter itself is so apparently dedicated.
‭(‬70‭) ‬Viz. “That the Great Charter,‭ ‬and the Charter of the Forest be holden and kept in all points‭; ‬and if any Statute be made to the contrary,‭ ‬THAT‭ ‬SHALL BE HOLDEN FOR NONE.”
(71‭) — — “‬It is assented and accorded,‭ ‬for the‭ ‬good governance of the Commons,‭ ‬that no man be‭ ‬put to answer,‭ ‬without Presentment before Justices,‭ ‬or matter of Record,‭ ‬or by DUE PROCESS AND‭ ‬WRIT ORIGINAL,‭ ‬according to the OLD LAW‭ ‬OF THE LAND” ‭(‬which‭ I ‬have already proved‭ ‬to signify,‭ ‬in an especial manner,‭ ‬the Trial by a Jury‭ ‬of the Vicinage‭); “‬and if ANY THING,‭ ‬from henceforth, be done to the contrary,‭ ‬it shall be void IN‭ ‬THE Law and holden for Error.”
‭(‬72‭) A‬ Law concerning the Homage of Parceners,‭ ‬called, “Statutum Hiberniae,”‭ ‬14‭ ‬Hen.‭ ‬III.‭ — M‬r.‭ ‬Cay”‭ (s‬ays the Hon.‭ ‬Mr.‭ ‬Barrington‭) “‬very‭ ‬properly observes,‭ ‬that‭ ‘‬it is not an Act of Parliament,‭' ‬and cites the old Abridgement,‭ ‬title Homage. He allows‭ ‬it a place,‭ ‬however,‭ ‬in‭ ‬his edition of the Statutes,‭ ‬not to differ from former editors.‭ ‬This,‭ ‬in some measure,‭ ‬gives the authority of Legislation”‭ (s‬ays this learned Gentleman,‭ ‬ironically‭) “‬to the King's Law-Printers:‭ ‬and‭ ‬yet,‭ ‬if such an ordinance is inserted in every edition‭ ‬of the Statutes,‭ ‬for near‭ ‬3‭ ‬centuries together,‭ ‬by‭ ‬printers known to print under the authority of the‭ ‬King's Patent,‭ ‬and the Parliament permits this for‭ s‬uch‭ a ‬length of time,‭ ‬it becomes a question of‭ s‬ome difficulty to say what force it may have acquired.‭ ‬No such question fortunately can ever arise upon this Statute,‭ ‬as it is merely‭ ‬RESCRIPTUM PRINCIPIS to certain Milites‭ (‬Adventurers, probably,‭ ‬in the Conquest of Ireland,‭ ‬or their Descendants‭) ‬who had doubts with regard to the Tenure of lands holden by Knights Service and descending to Co-parceners within age,” &c. Observations on the more ancient Statutes,‭ ‬p.‭ ‬39.
‭(‬73‭) ‬A Statute of Nottingham,‭ ‬called “Ordinanatio pro Statu Hiberniae,”‭ ‬17‭ ‬E.‭ 1‬.‭ — ‬Upon‭ ‬which the Hon.‭ ‬Mr.‭ ‬Barrington remarks:‭ “I‬t is very‭ s‬ingular”‭ (s‬ays he‭) “‬that,‭ ‬though this Ordinance hath found a place amongst the English Acts of Parliament,‭ ‬the Collection of‭ Irish ‬Statutes,‭ ‬printed by authority at Dublin,‭ ‬begins only with the Ordinances of Kilkenny,‭ ‬in the‭ ‬3d year of Edward the 2d.‭ ‬There can be no doubt,‭ ‬however,‭ ‬that this‭ ‬Law extends to Ireland,‭ ‬if not repealed by‭ some Irish ‬Act of Parliament‭; ‬as,‭ ‬by Poyning's Law,‭ ‬in‭ ‬the time of Henry the Seventh,‭ ‬all precedent English Statutes are made to bind in Ireland.” Ib.‭ ‬p. 141‭ ‬.‭ ‬Nevertheless‭ I ‬must beg leave to observe,‭ ‬that this‭ ‬is neither an English nor an Irish Statute,‭ ‬but a mere‭ ‬letter-Patent of the King,‭ ‬by the Assent of his Council‭ ‬(though it might be dated,‭ ‬perhaps,‭ ‬during the sittings of a Parliament at Nottingham‭)‬:‭ — “‬Edward,‭ ‬par la grace de Dieu,‭ ‬Roy Dengliterre,‭ ‬Seignor Dirland,‭ &‬c.‭ — ‬a toutes ceux,‭ ‬que ceux Letters verront ou oiront,‭ s‬alutes.‭ ‬Saches que a le mendement de gulement de nostre terre Dirlande,‭ ‬a‭ ‬pluis grand peax et tranquill.‭ ‬de nostre people en cel‭ t‬erre a Notin.‭ ‬as octaves del St.‭ ‬Martin,‭ &‬c.‭ ‬par‭ ass‬ent de nostre Counsell illonques,” ‭&‬c.‭ ‬This is not‭ ‬the stile of an Act of Parliament‭; ‬neither is the Assent‭ ‬of the common Council, or general Council, expressed,‭ ‬but‭ only “‬by the Assent of OUR COUNCIL,” that is,‭ ‬the‭ ‬King's Council,‭ ‬which is always understood to signify‭ ‬the Privy-Council,‭ ‬and not the national Council.‭ ‬Befides,‭ ‬the King expressly calls this Ordinance,‭ “‬Our‭ ‬Letters-Patent,‭" ‬and witnessed it as such,‭ ‬in‭ ‬the usual form,‭ ‬viz. “En tesmoignance de quel chose‭ ‬nous avons sait faire CESTES NOUS LETTERS OVERTES.‭ ‬Done a Noiyngham le‭ ‬24‭ ‬jour de Novembre,‭ l‬an de nostre reigne dix seprisme.” Secunda‭ ‬Pars Veterum Statutorum,‭ ‬printed ann.‭ ‬1555‭ ‬,‭ ‬p.68‭ & ‬69.
(74‭) ‬This seems also to be the case with the‭ ‬3d‭ ‬voucher which he has produced for his assertion,‭ ‬viz,‭ “L‬aws for Ireland,‭ ‬made by E.‭ ‬3,‭ ‬per advisamentum‭ ‬Concilii nostri,” &c.‭ ‬That is,‭ ‬if he‭ ‬meant the Laws contained in the Ordinance of that‭ ‬King's‭ ‬31st year,‭ vi‬z.‭ “‬Ordinatio facta pro Statu Terrae Hiberniae‭;” ‬because this Ordinance is no‭ ‬more intitled to the name of‭ a ‬Law, or Act of Parliament, than the two former;‭ ‬for,‭ ‬long before this period,‭ ‬the necessity of expressing the Assent of the Commons,‭ ‬in‭ ‬order to render an Act valid, was well understood,‭ ‬as‭ ‬the Hon.‭ ‬Mr.‭ ‬Barrington remarks,‭ ‬on the‭ ‬14th‭ o‬f‭ ‬Ed.‭ ‬III.‭ “‬The Statutes now‭ ‬begin to appear”‭ (s‬ays he‭) “‬in a new,‭ ‬and more regular form‭; &‬c.‭ w‬hilst the Preamble, in every instance,‭ ‬makes express mention of the Concurrence of the Commons,” p.‭ ‬218‭; ‬whereas this Ordinance has no such mention‭ ‬of their‭ “CONCURRENCE,” ‬but only the‭ Ass‬ent of‭ ‬the Council, that is,‭ ‬the Assent of the King’s Council‭ — “‬de assentu consilii nostri ordinanda duximus,” ‭&c‬.‭ ‬whereas the Assent of the great Council of the Nation is‭ e‬xpressed in very different terms,‭ ‬as I have remarked‭ ‬in the former notes,‭ ‬as also in the notes on pages‭ ‬128‭ ‬and‭ ‬129.
But if this learned Judge meant any other Laws‭ “‬for Ireland,‭ ‬made by Edward III.” than this Ordinance of his‭ ‬31st year,‭ (‬for he refers us,‭ ‬in the margin,‭ ‬to the Parliament-Rolls of his‭ ‬5th year,‭) ‬yet the‭ s‬ame cannot afford the least proof or precedent for‭ ‬binding Ireland in England without Assent,‭ ‬because I‭ ‬have already cited ample testimony that the Parliament‭ ‬of‭ ‬Ireland in those days was frequently summoned to‭ ‬England, sometimes to confer with the English Parliament,‭ ‬and sometimes to meet the King and his Council in distinct Sessions of the‭ Irish ‬Legislature.‭ ‬See pages 60 to‭ ‬80.
His fourth voucher adds no more confirmation to his assertion than the three former‭; ‬for though it is really an Act of Parliament, yet it cannot be produced‭ ‬is‭ a ‬precedent for binding the Irish Subjects without‭ their ‬Consent, because it is made expressly for the purpose‭ ‬of enforcing an Act of the Irish Parliament,‭ “‬Estatute fait en la terre d'Ireland‭;” ‬and therefore,‭ ‬as‭ ‬the‭ ‬question relates only to the carrying the said Law‭ ‬into execution,‭ ‬which is properly the office of the King and his Courts,‭ it ‬is certainly indifferent whether he is advised therein by his Privy-Council or by‭ hi‬s Common-Council of England, especially as the latter,‭ ‬in the case before us,‭ ‬were‭ s‬o far from advising‭ t‬he King to invade or alter the Irish Law,‭ ‬that they‭ ‬Confirm it in the strongest terms‭ — “‬que le dit Estatutute‭ ‬estoise EN SA ENTIER FORCE,‭ ‬et que bien et‭ ‬duitnent foit gardez et PLEINEMENT execute,‭ &‬c.‭ ‬With respect to his‭ ‬5th voucher,‭ ‬referring us‭ ‬to the late Acts made in‭ ‬17‭ ‬Car.‭ ‬I,” ‭&c‬.‭ ‬it would be very‭ ‬unfair to draw from thence any conclusions unfavourable to the Privileges of the Irish Parliament,‭ ‬because‭ that‬ was the fatal year of the popish massacre in Ireland, when the Protestant Subjects of that kingdom‭ were‬ almost universally oppressed,‭ ‬and all Law and‭ R‬egularity overturned by the open Rebellion of the‭ ‬popish party:‭ s‬o that even the Parliament of Scotland‭ ‬(as well as‭ ‬the Parliament of England‭) ‬thought it‭ ‬right to take the affairs of‭ Ireland ‬under their consideration at that unfortunate juncture‭; ‬and sent two‭ ‬Commissioners,‭ ‬properly instructed by the States of‭ ‬that kingdom,‭ ‬to treat with the‭ E‬nglish Parliament‭ ‬about the means of suppressing the Irish‭ ‬Rebellion. Sir John Temple's History of the Irish Rebellion,‭ ‬p. 156 to 158.
But notwithstanding that some Acts might have‭ ‬been made in the‭ ‬17th of Charles I.‭ ‬without the Assent of the Irish Parliament,‭ ‬yet they afford‭ no ‬evidence in favour of that opinion for which they are‭ ‬cited by the learned Judge‭; ‬for Mr.‭ ‬Molyneux‭ ‬has proved,‭ ‬by the repeal of those very Acts of 17‭ ‬Cha.‭ ‬I.‭ ‬that they afford an argument even on the‭ ‬other side of the question,‭ ‬viz,‭ “‬that the Parliament of‭ ‬Ireland‭ ‬may repeal an Act‭ ‬made in‭ Ire‬land in‭ ‬relation to the affairs of Ireland,” p.‭ ‬75.
And again,‭ ‬with respect to the‭ ‬6th and last voucher, under that head,‭ (‬viz.‭ ‬the resolution of the Judge's‭ ‬in the Exchequer-Chamber,‭ ‬in the case of the Merchants of Waterford,‭) ‬it by no means relates to the‭ ‬question in dispute‭; ‬for that concerns only the exportation and importation of goods,‭ ‬and the Irish do not‭ ‬pretend to contest the Right of Great-Britain to the‭ ‬Dominion of the Seas‭; ‬nor do they deny the Power of‭ ‬the British Parliament to regulate Commerce,‭ ‬as I‭ ‬have before remarked.‭ ‬Now,‭ ‬as it appears that not‭ ‬one of these Precedents is sufficient for the purpose proposed,‭ ‬and as we cannot doubt but that so learned a‭ ‬Lawyer as Judge Vaughan‭ (‬as I have before observed‭ ‬of Judge Coke‭) ‬would select the most applicable Precedents that could be found,‭ ‬the doctrine which he‭ ‬has built upon these insufficient Precedents must necessarily fall to the ground.
‭(‬75‭) ‬For this inclusive Power,‭ ‬of GENERAL WORDS, Judge‭ ‬Blackstone refers us to Lord Coke's‭ ‬12.‭ ‬Rep.‭ 112. ‬but I shall take no pains to refute any error in that‭ last Collection of his ‬Reports, “which are‭ ‬well known” (says the honourable Mr.‭ ‬Barrington,‭ ‬p.‭ ‬161‭) “‬not to be of equal authority with those that precede.” And besides,‭ ‬I have already demonstrated,‭ (‬I hope,‭) ‬in my‭ ‬Comment on the Cases of Orurke, the lrishman,‭ ‬and Sir‭ ‬John Perrot,‭ (‬as also by the clear and decisive Resolution of the worthy Judges,‭ Wra‬y and Dyer,‭ ‬and the‭ ‬Attorney‭ ‬General Gerrard,‭ ‬for restraining the GENERAL WORDS of four express Acts of Parliament,‭ ‬that‭ ‬all such general Words,‭ ‬in Statutes,‭ ‬must be duly restrained by a legal Construction,‭ ‬if the Judges,‭ ‬who enforce them,‭ ‬mean to avoid the Risk of exemplary punishment‭!
‭(‬76‭) ‬The Irish do not pretend to deny a legal Dependence‭ ‬on the superior State of England,‭ ‬for they acknowledge‭ ‬that the Sovereignty of their Island is inseparably annexed to the Crown of England,‭ ‬of which,‭ I ‬believe,‭ ‬I have already quoted some examples:‭ ‬but,‭ ‬when Dependence‭ i‬s defined‭ (‬in the manner Judge Blackstone represents it‭) ‬as‭ “an ‬Obligation to conform to the Will or Law of the superior Person or State,”‭ &‬c,‭ ‬it ceases‭ ‬to be a legal Dependence,‭ ‬according to the common Law‭ ‬and Constitution of England;‭ ‬though the learned Judge‭ ‬is certainly right enough,‭ ‬if he will be pleased to confine his Definition of Dependence to those Countries‭ ‬where the civil Law prevails,‭ ‬as in France or Prussia for‭ ‬instance‭; ‬because,‭ ‬in such despotic Realms,‭ ‬the oppressed People seem,‭ ‬indeed,‭ ‬to acknowledge “an‭ ‬Obligation to conform to the Will or Law of the superior Person or State‭;” ‬and the learned Commentator,‭ ‬if he meant to refer to the Laws of such enflaved People‭ ‬as these,‭ ‬must certainly be allowed to have delivered his‭ ‬meaning in the most expressive and judicious terms that‭ ‬he could possibly have chosen for such a purpose‭; ‬for,‭ ‬in speaking of‭ “‬the Will” of “that superior Person or‭ ‬State”‭ ‬to which he supposes‭ “‬an Obligation to conform,” &c.‭ ‬he mentions it as a synonimous term to‭ ‬the word‭ “‬Law,” viz.‭ “‬Will or Law,” says he,‭ ‬that is,‭ “‬an Obligation to conform to the Will or Law of that superior Person or State,‭" &c‬.‭ ‬which is,‭ ‬indeed,‭ ‬a most lively description of the dangerous‭ unlimited ‬Power of the French,‭ ‬Prussian,‭ ‬or Imperial,‭ ‬Administrations of Government‭; ‬for,‭ ‬wheresoever these‭ ‬two words,‭ ‬WILL and LAW, are confidered as synonimous,‭ ‬there must, of course,‭ ‬be any thing‭ (‬be it‭ ‬ever so wicked or iniquitous‭) ‬that the Superior pleases‭; ‬that is,‭ ‬in short,‭ “qu‬od Principt placuit Legis habet Vigorem!” But I have already held up that detestable‭ ‬Maxim of the civil Law to the view of my Readers‭; ‬and therefore I shall now only remark,‭ ‬in general,‭ ‬that‭ ‬neither the Laws of England nor the Laws of Ireland‭ ‬acknowledge any such Precept as the setting up the‭ ‬Will of a Superior for Law‭; ‬or,‭ (‬what is the same‭ ‬thing,‭) ‬they do not acknowledge any such state of “Dependence” as an Obligation to conform to the‭ “‬Will or Law”‭ (‬those synonimous Terms‭) “‬of‭ ‬the superior Person or State,” ‭&‬c.
Our Laws,‭ ‬indeed,‭ ‬acknowledge the King of Great-Britain for the time being as the “Superior” or Head‭ ‬of both Kingdoms‭; ‬but the‭ “‬Dependence,”‭ ‬which is‭ ‬thereby required of‭ “t‬he Inferior,” ‭(‬whether the term,‭ ‬inferior,‭ ‬be applied to the inferior Kingdom‭ a‬s subordinate,‭ ‬or to Persons,‭ ‬viz.‭ ‬to each Individual as a Subject,‭) ‬in either case,‭ ‬is a politic or legal‭ “‬Dependence,”‭ ‬and not absolute and unlimited,‭ — “‬Principatu namque‭ ‬nedum REGALI,‭ ‬fed et POLITICO,‭ ‬ipse suo populo dominatur.” ‭The La‬ws leave no room to suppose that‭ ‬there is‭ “‬an Obligation to‭ c‬onform to the WILL or LAW"‭ ‬(if the latter has no other foundation than the Will‭) “of ‬that superior Person.” “Nam non potest Rex Angliae AD LIBITUM SUUM Leges mutare Regni sui.‭ ‬Principatu‭ ‬namque nedum regali,” &c. as above.‭ (‬Fortescue de‭ ‬Laud.‭ ‬Leg,‭ ‬Angliae,‭ ‬c.‭ ‬9.‭ ‬p.‭ ‬25‭ ‬b.‭) ‬And,‭ ‬if even the‭ ‬King’s Power is not‭ regal‬,‭ ‬but politic and limited,‭ (‬which‭ ‬the same learned Writer,‭ ‬Chancellor Fortescue,‭ ‬has‭ ‬clearly proved in a distinct‭ ‬Tract,‭ ‬expressly on that subject,‭ ‬intided,‭ “T‬he Difference between absolute and‭ limited ‬Monarchy,‭") ‬much less can the King's‭ ‬Subjects be said to exercise a‭ “‬Sovereign’s legislative‭ P‬ower”‭ (I‬.‭ ‬Com.‭ ‬p.‭ 101) ‬over any Nation or People whatsoever,‭ ‬that have no share in the said Power‭ ‬by a due Representation of their own collective body:‭ ‬for the sovereign Majesty of the People ought never to be‭ ‬exerted,‭ ‬except in their own necessary defence,‭ ‬or to‭ ‬maintain the natural Rights and equitable Privileges of‭ ‬Mankind,‭ ‬against Tyrants and Oppressors,‭ ‬for the‭ ‬good of Society in general,‭ ‬through that disinterested evangelical Principle, “Good-will towards men."‭ ‬But‭ ‬when,‭ o‬n the contrary,‭ ‬any particular Nation or People exerts that‭ “S‬overeign legislative Power”‭ ‬to deprive‭ ‬another different Nation of their natural Rights and Liberties, they no longer deserve to enjoy their own; and,‭ ‬indeed,‭ ‬divine Justice will inevitably overtake them‭ s‬ooner or later‭; ‬for,‭ ‬as the crimes of individuals will‭ s‬urely be punished with personal condemnation,‭ s‬o national sins must feel the additional Weight of temporal‭ ‬national‭ ‬Retribuiton; which,‭ ‬I trust,‭ ‬I have demonstrated in a little Tract,‭ ‬intended sometime or other for‭ ‬Publication,‭ ‬intitled, “The Law of Retribution,‭ ‬and,‭ ‬in particular,‭ ‬of God’s temporal Vengeance on Slave-holders.”
‭(‬77‭) ‬The following extract, from Sir Wm.‭ ‬Petty’s‭ ‬Political Survey of Ireland,‭ ‬will corroborate this just‭ ‬Remark of Sir William Blackflone.‭— “‬The British Protestants and Church have three-fourths of all the Lands,‭ ‬five-sixths of all the housing,‭ ‬nine-tenths of‭ ‬all the housing in walled towns and places of‭ s‬trength,‭ ‬two-thirds of the foreign trade,”‭ &c. ‬p.‭ ‬27.
‭(‬78‭) ‬Judge Blackstone himself has called it,‭ ‬in the‭ ‬the very same page,‭ “‬the Birth-Right of every Subject.”
‭(‬79‭) ‬This Benevolence, or due Consideration for the‭ ‬natural Rights of all mankind is properly called Jus‭ ‬Gentium,‭ ‬the Law of Nations‭;(aa) ‬which universal Law‭ ‬(as‭ ‬like wise all the other Heads above-mentioned‭) ‬is necessarily included in what is commonly‭ ‬called natural Religion,‭ ‬consisting of the primary or‭ ‬eternal Laws of God‭; ‬and whatsoever is contrary to‭ an‬y of these is “MALUM IN SE,” which no‭ ‬authority‭ ‬on earth can make lawful‭; (s‬ee note in p.‭ ‬185‭ & ‬186.‭) ‬and men of all ranks,‭ ‬and in all places,‭ ‬that have‭ ‬Common Sense, are naturally qualified to‭ ‬distinguish whether Laws are deficient in any of these respects,‭ ‬or are contrary to Reason‭; ‬for the Law of Reason‭ ‬is‭ ‬an universal Law‭ — “‬Scribiturque haec Lex‭ in‬ corde cujuslibet Hominis,‭ ‬docens eum quid agendum,‭ ‬et quid sugiendum,"‭ (‬for which the learned‭ ‬Author quotes the Epistle to the Romans,‭ ‬chap.‭ ‬2,‭ ‬and then proceeds‭) “‬et quod Lex Rationis in corde scribitur, idea deleri non potest,‭ ‬nec etiam recipit mutationem ex loco nec tempore,‭ s‬ed ubique et inter omnes Homines servari debet.‭ ‬Nam Jura naturalia immutabilia sunt,‭ ‬et ratio immutationis‭ ‬est quod recipiunt Naturam rei pro fundamento, quae semper eadem est et ubique,” Doct. et Stud.‭ ‬cap.‭ ‬2.‭ ‬Any Acts of Parliament, therefore,‭ ‬which are contrary‭ ‬either to Nature,‭ ‬to Justice,‭ ‬to Morality, or to Benevolence, &c. are contrary to Reason,‭ (‬that Ray of the‭ divin‬e Nature,‭ ‬and supreme Law,‭) ‬and consequently are null and‭ ‬void, being mere Corruptions,‭ (corruptelae,) ‬and not Laws‭; ‬for “contra eam” ‭(‬Rationem‭) “‬non est praescriptio vel appositum statutum sive consuetudo‭; ‬et,‭ s‬i aliqua fiat,‭ ‬NON SUNT STATUTA,‭ sive ‬Consuetudines,‭ ‬fed CORRUPTELAE,” &c. Doct. et Stud.‭ ‬p.‭ ‬5.‭ ‬b.
(aa) The Law‭ ‬of Nations seems to be almost banished at this time‭ from ‬Europe.‭ ‬The late felonious and arbitrary Division of Poland‭ ‬between three of the greatest Powers in Europe:‭ ‬The late iniquitous‭ ‬attempts against the antient Republic of Venise and the Swife Cantons,‭ ‬and the late unjust Claims upon the free Cities of Dantzick,‭ ‬Hamburgh,‭ &‬c.‭ ‬The Robberies and horrid Murders which,‭ ‬for these‭ ‬ten years past,‭ ‬have been committed by the French on the poor wretched‭ ‬Inhabitants of the little Island of Corsica,‭ ‬upon pretence of an‭ unlawful ‬Cession of Sovereignty from the Genoese; and the like abominable Iniquity,‭ ‬upon the like false pretence,‭ ‬lately carried on,‭ ‬even‭ ‬by the English themselves,‭ ‬against the poor helpless Charibbs at St. Vincent's:‭ — ‬are melancholy Proofs,‭ ‬either that the Europeans in‭ general ‬are most profoundly ignorant of the Law‭ ‬of Nations,‭ ‬or that‭ ‬they are fallen into a state of the most abandoned Wickedness and‭ ‬Profligacy.
‭(‬80‭) “‬Secundum‭ fu‬ndamentum legis Angliae est Lex‭ ‬Divina,"‭ &‬c.‭ ‬And if any Act of Parliament is in‭ ‬any degree contrary to the divine Law,‭ ‬it has no force‭ ‬in the Laws of England.‭ ‬Suppose,‭ ‬for instance,‭ ‬an‭ ‬Act of Parliament should be made,‭ ‬to prohibit or annul the marriages of any particular rank or order of‭ ‬men whatsoever‭; ‬the same must necessarily be esteemed null and void of itself‭; ‬because the Principle,‭ ‬attempted to be established by such an imaginary Act,‭ ‬is so directly contrary to the Laws of God,‭ ‬that we may‭ s‬afely rank it with the “Doctrines of Devils‭;” (s‬ee‭ ‬notes on pages‭ ‬133‭ &‬134.‭) ‬which,‭ ‬indeed,‭ ‬every Act of‭ ‬Parliament ought to be esteemed that is in any degree contrary to the holy Scriptures,‭ (‬the written Laws‭ ‬of God,‭) ‬or contrary to Reason, ‭(‬the eternal Law of‭ ‬God‭) — “E‬tiam si aliquod Statutum esset editum centra eos, nullius vigoris in legibus Anglia‭ c‬enseri debet,” ‭&‬c.‭ ‬Doct.‭ ‬et Stud.‭ ‬c.‭ ‬6.
(81‭) ‬Of this I have already given sufficient examples in pages‭ ‬178‭ ‬to‭ ‬208.
‭(‬82‭) “‬Confra‭ ‬veritatem nihil possumus.” And again, “Contra veritatem lex nunquam aliquid permittit.” 2‭ ‬Inst.‭ ‬252.‭ ‬Plowden has reported a variety of cases wherein Acts of Parliament were esteemed‭ void in Law, ‬through the want of truth in‭ ‬the recitals:‭ s‬ee pages‭ ‬398‭ ‬to‭ ‬400.‭ — “‬Et issint‭ ‬Parliament puit misprender chose,‭ ‬et Statutes que‭ MISRECIT‬E CHOSES,‭ e‬t font referre a eux,‭ ‬serront void,‭ ‬et null ferra conclude per eux.‭ ‬Issint en notre principal case,‭ ‬le statut que recite le plaintiff suit attaint,‭ ‬et confirme ceo,‭ ‬ou en fail il nesuit attaint,‭ ‬SERRA VOIDE."
‭(‬83‭) — “‬Quia ilia potestas”‭ (‬potestas Juris‭) “‬folius Dei est‭; ‬potestas autem injuriae diaboli,‭ ‬et non Dei‭; ‬et cujus horum opera fecerit rex,‭ ‬ejus‭ m‬inister erit cujus opera fecerit.‭ ‬Igitur,‭ ‬dum facit justitiam,‭ ‬vicarius est Regis aeterni‭; ‬minister autem diaboli,‭ ‬dum declinet ad injuriam,” &c. Bracton,‭ ‬lib.‭ ‬3,‭ ‬c.‭ ‬9,‭ ‬p‭ ‬107,‭ ‬b.
(84‭) “‬Know ye not that,‭ ‬to whom ye yield yourselves servants to obey,‭ ‬his servants ye are,‭ ‬to whom‭ ‬ye obey‭? ‬whether of sin unto death,‭ ‬or of obedience unto righteousness‭?” &‬c.‭ ‬Rom. vi.‭ ‬16.