MOLLYN EU X’S Cc A S E oF IR ELAN D, WITH A NEW PREFACE,IR EL AN D BEING BOUND BY ACTS OF PARLIAMENT IN ENGLAND, S T-‘A T E D. BY WILLIAM MOLLYNEUX OF DUBLIN, ESQ; WITH A NEW PREFACE, LONDON? PRINTED FOR J. ALMON, OPPOSITE BURLINGTON HOUSE IN PICCADILLY, AND M, HINGESTON IN THE STRAND, NEAR TEMPLE-BAR, MDCCLXx,PR E F A CE, T HE following Cafe of the Kingdom of Ireland, was publifbed at a Time, when our Conftitution had recently felt the healing Effects yf the happy Revolution the Sifter Kingdom bad een moft miferably diftrefjed amid that Confu- Jfion, which the Biggotry of the deluded Fol» lowers of James bad introduced, and great Oc- cafion fhe bad, for every Act of Friendphip, which this Nation could fhew ; the Proteftant Families ad been firipped of their Properties, and forced to feck Refuge in this Country; they were received with Humanity, by many parti- cular Perfons, and Money was raifed by private Subfcriptin far their Relief; their Lands had been wafted, their Houfes burned, and the whale Iffand thrown back, as to matter of Improve- ment, at leaft a Century ; all this did the Irith Suffer in the Caufe of Liberty, for it 1s beyond a Doubt, to thofe who bave any Knowledge of that Hiftory, of the Advantages in Number, Intelligence, and other refpects, derived to the Englith Army -from the, Irifh Proteftants ; (oe . a3 5vi PREFACE. if they bad joined their Forces with thofe of the Catholicks, the Kingdom might have been cafily deliveredup either to James or to Lewis ; they had taken a different Refolution: Defcended from Ancefors,who brought with them the Manners, Cufioms, Laws, and Couflitution of England, and communicated them to the wild ferocious Nattves of Ireland, they were determined to Support them. At a Time when England was diffufing the Blefings of Liberty, to a prodigious national Expence, among}! the moft remote People of the Continent, it muft be matter of juft surprize to the \tith, that far from recetuing Affiftance from Englith Legiflature, towards repairing the Damages they bad fuftained, they faw their Independence as a Kingdom, unjuftly violated, their Trade wantonly reftrained, and Mr. Moli- neux’s mde/t difpafionate irrefragable Proof of tée Rights and Liberties of bis native Country, profancly burned by the Hands of the common, Hangman. . We livein an Age, where in one Particular, the Revolution continues flill to operate, for the Crown of thefe Realms remains as yet under parliamentary Eftablifiment, in a Family, which, although uot jo near in Biood as other Families to the abdicated Race, was neverthelefspreferred, becauje they were Proteftants, becaufe they were of frail Continental Iniportance, of hnown Mo- ‘deration, and therefore nizre likely to be contented sith the reafsnable Starc of Power allow'd by ourPREFACE. vii our Laws ; Ireland, from the very fame Mo- tives with England, recognized the. prefent Family by folemn AG, totally aiftind from that of England, and had Reafon to hope for a pure uninterrupted Enjoyment of civil Liberty, under Juch worthy Patrons. That it has not been the general Senfe of the People of England to opprefs Ireland, 1s moft certain ; the Englith breathe a Spirit of Free- dom, they are naturally brave, generous, and juft; they would endeavour to make all Man- hind free; and who from the workings of Englith Adminiftrations, fhall conclude to the whole People of England, will conclude un- guftly ; for excepting a Part of Queen Anne’s Reign, and that Part of the late War which was conduéted by the Earl of Chatham, fbew me who can, with all the boafted Liberty of England, when did the national Senfe and that of Admi- niftration, in any Refpett coincide 3 was it the Englith Nation that betrayed the Catalans? Cut us off from any future cordial Friendfbip with the Dutch? Endured the outragious In fults of Spain for a Number of Years? gave Hoftages at the Peace of Aix-la-Chapelle ? and bartered to private Avarice all the Advantages of the laft gorious War? would they Sacrifice, would they profcribe as Rebels, the brave un- Jortunate Corficans? would the Englith Nation opprefs the Irith? It ts to the weak or wicked Councils of Englith Minifters that thefe Articles muft be charged, together with that churlifo a4 Policy,Vili PREFACE, Policy, which will not permit Ireland to carry on Part of aTrade, the whole of which, Eng- land is confeffedly unable to maintain. An Englith Minifter would move Heaven and Earth to corrupt a Majority in the Houfe of Com- mons, and contrary to that Golden Rule of ~ Politicks, which prefers the greater Part to. the finaller, be would, in order to fecure a fin- gle Member, the Circumpfances of whofe Eftate may render it convenient to deftroy the entire Trade of Ireland, readily Sacrifice fo refpettable @ Part of the Britifh Empire: To cut off the left Arm, in order to fave a little Finger of the Right Hand from Amputation, would be ftrange in Surgery. Ireland has many unhappy Pecu- Karities in Ler political Situation, the chief of abich feems to be, that fhe isa Kingdom without a King, for the Minifler with an obfequious Britith Privy Council, bas affumed the Power of putting a Negative upon the moft falutary Laws; tbe Man who is not well acquainted with the Intereft of Wreland, muff furely be incapable of advifing bis Majefty concerning fuch Intereft,, as it ftands in relation to that of the Common- weal; for itis unjuft to fay, that the Interefk of England or of Scotland, requires that Ire- Tand foal! be treated in this or in that manner ; the beneft Enquiry muft be, which is the Manner from whence Advantage to the Inbabitants of that Kingdom, in common with thofe of our own, will arife; none are fo likely to be furntfhed with a Knowledge adequate to fuch Enquiry asPREFACE. ix as thelrith; the honeft and fenfible Part of their Gentry, are fearce ever feen at the Britith Court, thofe who refide bere, having not only — relinguifbed every Concern for the Liberties of their own Country, but fland foremoft in the Lift of thofe, who Labour in the Deftruttion of our Liberties ; bis Majefty therefore with regard to the true State of \reland, is totally uninformed, which in Effett is not to be a King. The Mind of every Monarch is not capable of comprebending the extenfive Duties of his high Of~ Jice, nor can the Heart of every Monarch refolve upon executing them ; William the Third was indeed born an Hero, and where Liberty was in Danger, the Rights not only of bis own Subjects, but of the human Species to he afferted,no Hazard was too great, no Climate unlovely, no infolent Combination of bis Subjeéts appeared terrible; and had be outlived that tyrannical Levia~ than, Lewis the 14th, Ireland might have reaped, fome Part of the Harveft of bis Let- Sure ; be probably would have given that Kingdom other Marks of being a Sovereign, than quar- tering upon ber a Band of lazy, voracious, penfionary Sycopbants. Another Peculiarity in the Affairs of Ireland is, that they have an Houfe of Peers, without a dernier judicial Power ; judicial Power, wherever placed muf? give Confequence, from thence may Prerogative draw at all Times Sufficient Force without calling in Corruption to ber Aid; when Gracchus had deprived the Patrician Order of this Power, be look- ed upon’ it as fufficiently humbled, no wonder thex -PREFACE, the \cith fhould fenfibly feel fo unnatural a Change in their Government; the Right of confiruing their own Laws, is founded upon the Principies of common Senje, becaufe Vicinity and Intercourfe carry the firongeft Prefimption of being acquainted ith the Matter in Difpute, the Charatters nay with the Right of the Dif~ putants: I have feen as much Inter:ft made by the Friends of the Appellant and Refpondent, upon an \rith Appeal, as in the Lobby of the Heufe of Commons, upon a contefted Eleétion ; and in one Party, when bis Adverfary bas been Somiliarly received in Public, by any Court Lord of notorious Infiuence, the loweft Dejeétion of Countenance ; and yet when we confider, that Deteruinations in Law or Equity, depend not upon a Skill in Horfe-racing, or a critical Know- ledge of the Innsupon the Roads toParis, Turin, or Rome; az indifferent Perfon, will be at a Laofs to difcover any Superiority in a Britifh over an Irith Houfe of Peers, as to Capacity of judg- ing in Matters of Property. fudex bonus juxta Leges @ Fura pronurciat, and we can- not fuppofe that Britith Peers, admitting them perfectly acquainted with their own Laws, can be fo converfant with thofe of Ireland, where from particular national Circumftances, they, niuft differ from thofe of England, as the Peers of Irgland are, therefore not fo competent Sfudges: dut if it feould be afferted, which Jfeems not «without Colour of Fuftice, that the Lords have no concer with the judicial Power JurtherPREFACE. xi Surther than the Formality of voting, and that the Lord Chancellor and Lord Chief Fuftice of the King’s-Bench, have the Direttion both of their Gonfeiences and Opinions, the Officers correfpondent to thefe at the other Side, hav- ing received the fame Education, in the learned Profifion with their Brothers in England, ought to be, and probably are as capable of giv- ing Sudgment in the laft Inftance; fo that there can be no fuficient Caufe for drawing fuch great Sums of Money from Ireland for the Profecu- tion of Appeals, unlfs the Affair is confdered in acommerctal Light, fuftice, as a Material of Trade, and that the Ballance againff \reland muft be preferved in this as in every other Article. As to the Houfe of Commons of Ireland, not one Effential of Independency of Legiflature, re- mains toit, except that of ratfing Money; it is the | laft Privilege a People will give up, and a Minifter ought tofeel an.uncontroulable Energy in himfelf, before be attempts an Injuftice of fuch Poignancy. A Grant of the Supplies for a long Term, was very near pafing during the Lieutenancy of Lord Carteret, which would have deftrayed this precious Relique of \rifh Con- _flitution ; in general until very lately the Englith Minifiry, bas carried almoft every Quefiion in the Irith Houfe of Commons, and why Oppoftion has been more frequent than formerly, may I” think be thus accounted for. —We plainly fee the ‘ _ arifto-xii - PREFACE. ariftocratic Part of oxr Conflitution gathering Strength every Day, the Confequence of which bas been, that the Dignity of national Reprefen~ tation is finking apace; the Lower Houfe is dif~ graced by an Admiffion of obfcure indigent De- pendants upm the Nobility, who, before their Introduction to Parliament, owed perhaps the Dinner they confumed, and the Cloaths they wore, to the Bounty of their Patrons ; the feandalous illufory Evaficns of the Qualification Laws, we all know, and the Retainers in old Times to the great Lords, fupported at the Expence of thefé Lords but baving no Voice in the Senate, were lefs noxious Animals, than the modern Friends (as they are pleafed to call them) of our Grandees, who are fed upon the Vitals of the People, and bired to Vote away their Liber- ties: Legiflature has been further debafed, by an Admifiion, not of Merchants, for that refpectable Character is at prefent fearce known amongft us, but of a Set of ilitberal Wretches, who by Fraud, Contraéts, Stock-jobbing, or a fordid Parfimony, have wrought themfelves into Wealth ; thefe purchafe Seats in the Houfe, un- der Proteétion of the Minifter, and are prepared to do bis dirty Work at balf Price; before Reprefentation bad been configned to fuch mean Hands, the Employments in \reland, except a few ery confiderable ones, were unworthy the Acceptance of an Enghith Member of Parlia- ment, they were diftributed among ft the Gentle- men of that Kingdom, and fcarce any Thing wasPREFACE. xiii was refufed to Adminiftration ; but fo great the Demand for them now at this Side the Water, such granting of Places and of Penfions, in Poffifion and Reverfion, that the Natives fee- ing no Profpect of being gratified, are eafily inclined to oppofe our Lord Lieutenants, and Points are daily contefted ; the Cauf? bere affiigned is no.great Compliment to \rith Patriotifn, but it is fomething very like human Nature, de- praved if you pleafe, nor let it be forgotten, that whilf the Example of England is fo near, it is fearce poffble it fhall be otherwife ; if a Right. to be bribed can exif at all, the \rith have a Right to be bribed by the Materials, which their own Country furnifbes, prior to that of the Englith ; and much more for the real In- tereft of England would it be, that Irith Pen- fons and Places were left as befsre, to the Members of their own Houfe, their Effects were then but of fmall Extent, only to a Vote of Cre- dit for the Crown, or to filence the Hue and Cry after fome petty Larcener of the Trea~ fury but by the dark Minifter of this Day, they are employed to a more dangerous Purpofe, to fupport a mercenary Majority in the Britith Parhament, and under Cover of this Battery of Corruption, to fap the very Foundation of our Conftitution ; that this ts bis Scheme, ts apparent rom the cruel Treatment of the Americans ; carelefs of the good Opinion of the collateral Branches of the Britith Empire, their Go- : vernments,xiv PREFACE, vernments, Revenues, Offices, are all employed ta poifon the Fountain of Legiflature; this End once attained, how eafy is it to vote the Irith, Americans, Eaft-India Company, &c. to be Harfes, Affes, and Slaves at bis Pleafure. There ts another Caufe, why for the future, more frequent Oppoftion is ta be expeiled from tbe Irith fo the unreafonable Requifitions of their Governors ; the Rigcur of Popifh Biggatry is Siftening very fof, the Proteftants are lofing eH bitter Remembrance of thofe Evils which their Ancefiors [bree and the two Seéts are infenfioly gliding into the fame commen In- terefi: The Proteftants, through Apprebenfion JSrom the fuperior Numbers of the Catholicks, were eager to fecure themfelves in the power- ful Proteéion of an Englith Minifer, and ta gain this, were ready to comply with bis moft exorbitant Demands ; the Catholicks were akhe willing to enturrafs the Protefiants, as their uatural Foes; but awakened from this Delufion, they begin to condemn their paft Follies, reflect scith Shame on baving fa long played the Game of an artful Enemy, and are convinced, that without Unanimity, they never can obtain fuch Conjideracion, as may entitle them to demand with any Propped of Succefs, the juft and com> mon Rights of Mankind. , Religious Biggotry is lofing its Force every schere, ‘commercial, and not religious Inaterefts arePREFACE. xv are the Objetts of almoft every Nation in En- rope; Ireland, fo France or Spain, would be @ grand commercial Object, and I wifh thefe Powers may never have an Opportunity to avail themfelves of the united Difcontents of the Inhabitants of that [land ; if they fhould, I may venture to fay, that no religious Scru- ples would hinder them from guaranteeing to the prefent Poffefors of its Lands all their Eftates, without the odious Diftinétion of new and old Rights; and the \rith combined under the Protettion of a fair equitable Alliance, with Some powerful State, would give much uneafinefs to any who fhould attempt to moleft them.— For let Fancy prefent us but for a Moment, this Ifland we fpeak of, not inbabited by the Defeendants of Britain, nor thofe wha are blended with thefe Defcendants, by every natu- ral and civil Intercourfe, not by Men who bave er wif to have the fame Intereft, at worft no oppofite Intereft to that of Britain, ready to bring Increafe to her Trade, and add Terror to ber Arms ; but let that Ifland be filled with 4a Race of ancient \rith, fierce, aétive, robuft, patient of Hunger and of Toil, proud in being the Pofterity of thefe Heroes who chaced the prowling Danes from their Country, plumed as they were at that Time with repeated Vittories over the proftrate Saxons ; with a People whom nothing but inteftine Broils, could bape forced . intexvi PREFACE: into an unequal Compact with any Nation whatfeever 5 we may go farther, and admti them to be firengthened by a Policy propor- tionably improved with that of their Neigh- Sours, connected by Treaties with fome great Power upon the Continent, as Scotland was with France, and adverfe to this Kingdom, as are their Seas and Shores; tell me from what Part of the Globe could this land be fo much annoyed? Inftead of being fo rich a fewel in our Crown, what a Thorn would Ireland be in our Side 2 Tacitus bas, many Ages fince, de- kevered it as the Opinion of Agricola, that Ireland might have been conquered by one Le- gion and fome Auxiliaries, and be adds it as the farther Opinion of bis favorite Commander, that fuch a Conqueft would be inftrumental to the entire Reduttion of Britain, becaufe fays be, the Britons bebolding the Arms of Rome on all Sides, every Profpect of Liberty muft vanifb—idque adverfus Britanniam profuturum, fi romana ubique arma & velute Confpettu Li- bertas tolleretur.—If the Conqueft of Ireland in that rude State, was of fo much Importance toan Enemy, who was intent upon fubduing Britain, much more convenient muff it be now, abounding as fhe is in the Neceffaries of Life, Ser numerous and commodious Harbours well &noun to all Nations, and rich in a Breed of Men whofe worth is approved and acknowledged by every State in Europe, except that of Great- Britain. Com-PREFACE vit _ Commerce, as Lfaid before, and the Defre of thereby procuring the Comforts of Life, are the ruling Principles of the prefent Age ; Portu- gal, which as a State, owes its Exifhence to England, will not reconcile themfélues to a Trade with us on Terms of Difadvantages Luxury and bad Policy, which bas raifed the Englith Manufattures to an uncommercial Price, JSurnifh no Argument why Portugal fbould be a lofer ; nothing foould give a Superiority, to one People over another in Trade, but fupertor Ho- nefly, Induftry and Skill ; no Treaty can bind ta the utter Ruin of either Party, for that would defeat the End of all Treaties, mutual Con= venience and commen Good: It is otherwife in Contraéts between private Perfons, theft smuft be obferved, although an Individual may be af» Setted, becaufe private Interop ld give Way to that of a Community, which requires, that Contracts fhould be firittly performed ; but in a Contratt between two Communities, this Rea~ fon cannot bold, for there are Cafes, when by a Stritt Performance, either one or the other will be reduced to beggary ; nor is it impoffible that Por- tugal, for that Reafon 1s more cordmlly apafed towards Frauce chan England at- this Time ; and that Engiand may foon look upon the Con- queft of that Kingdom by the Spaniards, with the fame Indifferente as they lately have done upon that of Corfica by the French. I can affirm that Ireland, in the Year 1760, in the b miaftXViii PREFACE, midft of 2 bloody War, bad not so00 effettive Men to defend ber ; there are Seafons, when our Mi- nifters feem to be fat afleep; and I am per- Juaded, that the Encomiums of Montefquieu, upon the Wifdom of this Nation, was intended only as an Alarm to bis own Countrymen ; be would make us more confiderable than we really are, that they may become proportionably more attentive. Hanover das coff England more Money in a Summer, than Ireland has done fince the Reign of Henry the Second; for in truth the Englith Adventurers, who bore the Expences of the Irith Wars, were fully reimburfed by fair Eftates in that Kingdom; there were Companies formed to carry om Conquefts in them Days, as to carry on Trade at prefent : fuppofe then Hanover, which bas the Happinefs to be under the fame gracious Sovereign with Britain andIreland, fuppofe ber, L fay, to be negletted by ber Eleétor, ber ancient and fundamental Laws trampled upon, ber Re- venues idly diffpated, by a weak affuming op- prefive Privy Council of this Kingdom, would She bear it patiently? or would fhe not feck Re- drefs in the Friendfhip and Fuftice of other Pow- ers? Exterminations of an entire People, or a total Reduélion to flavery, upon raifing the Arm to refiflance againft Injuries, is not the Doéfrine of this Day; the Powers of Europe think themfelves bound in Honour and im Intereft to prevent it; Intercf, to the Difgrace of . : Monarchs,PREFACE. xix Monarchs, I muft acknowledge to be concerned, and it is well that even that is left to be a Counterpoife to lawlefs Force ; if Corfica had prefented an immediate Profpett of Advantage, equal to the Coft of defending it, the French would not be at this Time in peaceable Pof~ Seffion of the whole Iland ; but in Poffeffion they are, which foews, that a People may change their Sovereign, and yet enjoy their Properties, Cuftoms and Laws. : Blind Prejudice may dart ber random In- veéhives againft the Scottith Nation, but in my Opinion Scotland is the Soil of the Decii, more Self-Devatees to the Independency of Country bas it produced, than any other whatfoever 5 an Enumeration would he tedious and ufelefs, the Inflances are recent 3 when ever the Gen-~ try of that Kingdom have thought themfelves negletted, their great Services fuffered to go unrewarded, there never was wanting a Band. of Heroes, who turned out for Redrefs; they bave fcorned the dull and unavailing Method of Petition, and of Remonftrance ; the Appre- Lenjfion of their crofing the Tweed in Arn:s, has generally proved a forcible Argument, with an indolent luxurious Neighbour; few indeed of their Nobles have been engaged, thefe fand fen- fioly aloef but far from endeavouring to fup-~ prof the generous ardour of their Count men, they filently approve: What though fome Thoufands of thefe daring Vaffals may be cut b2 a=x PREFACE. off, yet are Honours and Wealth hereby fecured to their furviving Friends for an enfuing Cen-. tury; and I make no Doubt, if the Scotch foruld at any Time bere after hive under a Prince, Lefs difceruing than bis prefeat Majefty, lei fen-. Soble of their extraordinary Merit, when they. may be unjuftly brought down to a Level: with. their fellow. Subjects, and treated. upon. the. Some equal footing, but we fhall find that the. Breed of Self-Devotees is not extiné, and fee. their Demands. gallantly made with Andrew, Ferrara in Hand. ° On the contrary, if the common People of Freland, flung by all the Miferies of Want and: Oppreffion, do but murmur a Complaint, if they. affemble with the finallet Mark of Diffatisfac- tion in their Countenances, the foyal Gentry of the. Kingdom are frraizht-way up in Arms 3 rhefe dangerous Infurgents are fuddenly crufh'ds ond within an Afizes or two, their Leaders, a wretched Prieft perhaps with fome other. drunken Profligates, are either banged or tranfported ; the one People would fecure.every Advantage to themfelves, by impreffing upon their opulent. Neighbour, a fear of being in- vaded and plundered; the other would con- ciate our Friendfhip, by a fulfome obtrufive Surfeiting Affection for us, and an enthufi= aftic Loyalty for our King; which Me-. thod has-been moft fuccefsful, the many Blefings. ed upon the. Scotch, and the numberlefs Calamities of the Irith fuficientl, declare. , ThePREFACE: " xxt The honeft People of England, mu/? think it unjuft to deprive the Irith of thofe Advantages which Nature bas given, nay it 1s impious, _for it is in Effect rifing in oppofition to the Awards of Providence ; they muft think it cruel to obftruct the Trade of \reland, without which, its com- mon People muft fiarve ; they muft think it bad Policy to rob the Sons of the Gentlemen of Ire~ land of the Provifions they are intitled to, ix Army Church and Revenue, becaufe they are forced by fucs Ufage into foreign Countries, of which they have often given this King- dom caufe of painful Remembrance, to fay we will do this or that, becaufe Superiority of Number enables us to do fo, is the Language of @ Bravo without Honour or Reafon on bis’ Side : Nothing can be a flronger Mark of de- clining Eiberty than a Dejire to enflave; Rome in her Days of Virtue, conquered but to civi-~ lize and make free; when Liberty was but a Name, then did foe wifh to extend her Vaffalage over all Nations cf the World ; and if that Should be the prefent defign of England, very pleating muft it be to Ireland and the Colonies to fee our Monarchs become abfelute, and all his Majeflys Subjetts in the fame equal Condt- tion, then will the following Lines, which Corneille has put into the Mouth of Ptolemy, in the Tragedy of Pompey, be moft appofite to the Times. Rome tu ferviras, & ces Rois, que tu braves, & que ton infolence ofe traiter d efclaves, , Adorerontxxii PREFACE. Adoreront Cafar avec moins de doleur, Puifqu'il fera ton maiftre auffii-bien que le leur. You Britain foon foal! own a Mafter’s Power, And thefe kind Friends who long your Pride bave born, Whofe Rights you trample, and whofe Claims you Scorn, Shall with lefs Grief to Cefar bend the Knee, Ween in their Lord, your Tyrant too they fee. But the Suppofition is difagreeable, it fhould not be indulged ; the gloomy and defponding State~ Phyfician, upon difeovering fome dangerous but common Symptoms, is too forward fo give over bis Patient ;—Savior armis Luxuria, is ever in bis Mouth, and Liberty is no more 3 I cannot cfteem thus meanly of our Confiitution, ber prif~ tine Vigour, may not indeed be reftored, but un- timely Death may be prevented; and the moft enfcebled State of Freedom, is better than Def- potifn; Wealth produces Luxury; the Poifon of Wealth if diffufed amongf the Individuals of a State, ts fo weakened by being dévided, as to work its Effetis. flaowly ; but if the acquired Wealth of a Nation, infiead of being thus feat- tered, falls by artful Management into the Hands of a wicked Adminifiration, the collecled Force of fuch Poifon becomes irrefiftable, it produces untimely Death, Diffelution ts hereby pracipitated—all the Englith Places of Power, auPREFACE xxiii ‘and Profit, in the Difpofal of Miniftry, could not procure fuch a Majority in the Houses of Parliament, as to make the Caufe of Liberty quite defperate ; new Refources of Corruption were therefore to be found out, they were fought for in Ireland and the Colonies; the Govern- ments, the Employments, both Civil and Military, of thefe Countries, their Places and Penfions, were all brought in as auxiliary Funds of Cor- ruption to thofe which Britain had hitherto in vain fupplied ; and by this additional Force, has the Minifler gained fuch a Superiority, that coming to a Divifion now, upon the moft interefting Queftion in either Houfe, is a mere Mockery ; in this manner the poor increafe of Irith Wealth, the wretched Gleanings after the Englith Trader, is fnatched from the un- Lappy People of that Kingdom, and converted by the chymical Operation of fevere Revenue~ Laws into thofe Penfions, with which the Eng- lith Minifter comes forth armed at all Points againft Law fupfice and Reafen. Yet why fhould we defpair? a generous and difinterefied King, may gtve up thefe Adjuntts of Prerogative, which are now fuch a Curfe to the People; or by diretting an Application of the Penfion and Concordatum Money of Ireland to public Works, inflead of pampering the un- worthy, may relieve the diftreffed; fuch a King, would have no Occafion for the Means of Cor- ruption, becaufe be will have nothing illegal . orxxiv PREFACE, or unreafonable to demand ; but as this would bé @ moft extraordinary and uncommon Blefing, who knows but the good People of Englandmay, one Day or other, infift that no Placeman fhalt be intrufted with the Management of their Con- cerns in the great Council of the Nation, perhaps make it one of the Conditions of their Allegi- ance ; and when there fhall be no Occafion for the Service of Penfioners, a Court may then dook upon Penfions as ufelefi, if a Nation will Submit to the Incumbrance of purveying the Superfluities of a wafteful and luxurious Court, through fuperftitious Veneration for an ancient Form, the fmalleft Return they can expett is, that their Liberties may efcape, without being either forcibly invaded, or infsdioufly undermined. THEOF iRELAND’S BEING BOUND BY ACT OF PARLIAMENT IN ENGLAND, STATED, I Have ever been fo fully perfuaded of the ftrict Juflice of the Parliament of ENGLanpD, that I could never think that any of their Proceedings, which might feem to have the leaft Tendency to Hardthip on their Neigh- bours, could arife from any thing but want of due Information, and a right State of the Bufinefs under their Confideration: The want of which; in Matters wherein another People are chiefly concerned, is no Defect in the Parliament of Exgland, but it is highly blameable in the Perfons whofe Affair is tranfacting, and who permit that illuftrious Body of Senators to be mif- informed, without giving them that Light that might reStify them: B I could2 THE CASE OF I could never imagine that thofe great Affertors of their own Liberties and Rights, ‘could ever think of making the leaft Breach in the Rigdts and Liberties of their Neigh- Sours, unlefs they thought that they had Rigét fo to do; and this they might well furmife, if their Neighbours quietly fee their Inclofures invaded, without expo/tulat- ing the Matter at leaft, and fhewing Reafons, why they may think that Harcthips are put upon them therein. The Confideration hereof has excited me to undertake this Difquifition, which I do with all imaginable Diffidence of my own Performance, and with the moft profound Refpeét and Deference to that auguft Senate. The prefent Jun@ure of Affairs, when the Bufinefs of IrELanp is under the Confide- ration of both Houfes of the Englifh Parlia- ment*, feems to require this from fome Perfon ; and feeing all others filent, I ven- ture to expofe my own Weaknefs, rather than be wanting at this Time to my Country ; I might fay indeed to Mankind, tor ’tis the Caufe of the whole Race of Apa, that I : Liberty feems the inherent Right of all Mankind; and on whatfoever Ground any one Nation can challenge it to them- “e Bithop of Derry in the Houfe of Lords, and pro- hibiting Exportation of our Woollen Manufacture in the Houfe of Commons. felves,IRELAND, ke, 3 felves, on the fame Reafon may the reft of «idam’s Children expect jt, If what I offer herein feems to carry any Weight, in relation to myown poor Country, I thall be abundantly happy in the Attempt: But if, after all, the Great Council of Eng- Jand refolve the contrary, | fhall then believe myfelf to be in an Error, and, with the loweft Submiffion, afk Pardon for my Affurance, However, I humbly prefume I thall not be hardly cenfured by them, for offering to lay before them a fair State of our Cafe, by fuch Information as I can procure; efpee cially when at the fame time I declare my Intention of a fubmiffive Acquiefcence in whatever they refolve for or againft what J offer. The Subject therefore of our prefent Dif- quifition thall be, How far the Parliament of Encianp may think it reafonable to interr meddle with the Affairs of IntLann, gnd bind us up by Laws made in their Houfe. And feeing the Right which England may . pretend to, for binding us by their Ads of Parliament, can be founded only on the smaginary Title of Conqueft or Purchafe, or on Precedents and Matters of Record; we thal} enquire into the following Particylars, (1.) Fir, How Ireland became a Kingdom annexed to the Crown of England? And here we thal] at large give a faithful Nar- Bz sative4 THE CASE OF rative of the firft Expedition of tke Britons into this Country, and King Henry the Second’s Arrival here, fuch as our beft Hiftorians give us. (2.) Secondly, We fhall enquire whether this Expedition, and the Exgi/b Settlement, that afterwards followed thereon; can pro- petly be called a Congueff? Or whether any ViGories obtained by the Engijb in any fucceeding Ages in this Kingdom upon any Rebellion, may be called a Congueft thereof? (3-) Thirdly, Granting that it were a Con- queft, we fhall enquire what Title a Conqueft gives. (4.) Fourthly, We thall enquite} what Conceffions have been from time to time made to Ire/and, to take of what, even the moft rigorous Affertors of a Conqueror’s Title do pretend to. And herein we fhall thew by what Degrees the Engijh Form of Government, and the Engijh Statute- Laws came to be received amongft us: And this thall appear to be wholly by the €sn- fent of the People and Parliament of Ire- fand, (5-) Fifth, We shall enquire into the Precedents and Opinions of the learned ia theIRELAND, &. 5 the Laws relating to this Matter, with Obfervations thereon. (6.) Sixthiy, We hall confider the Reafons and Arguments that may be farther offered on one Side and the other; and hall draw ome general Conclufions from the whole. As to the firft, we fhall find the Hiftory of the firft Expedition of the Engiijh into Ireland to be briefly thus: In the Reign of King Henry the Second, Dermot Fitzmur- chard, commonly called Mac ~- Morrogh, Prince of Leinfler, who was a Man cruel and oppreffive, after many Battles with other Princes of Ireland, and being beaten and put to flight by them, applied for Re- lief to King Henry the Second, who was then bufied in 4guitain; the King was not then in fuch Circumftances as to afford him much Help: However, thus much he did for him, by Letters Patents he granted Licence to all his Subje@s throughout his Domi- nions, to affift the faid Prince to recover his Dominions. Thefe Letters Patents are to be feen in Giraldus Cambrenfis*, who was Hiftoriographer and Secretary to King Hen. Il. and accampanied him in his Expedition into Ire/and, and from him it is that we have this Relation. The Iryh Prince brought * Giraldus Cambr. Hib. Expug. Lib, C. 1 B 3 theleé THE CASE OF thefe Letters into England, and caufed thet to be read in the Audience of many Peoples beating up, as it were, for Volunteers and free Adventurers into Ireland: At lengths Richard, Eatl of Strigul, (now Chepflow in Monmouthfeire) Son of Earl Gilbert, ealled Strongbow, agreed with him, to affift him in the Recovery of his Country, on Condi= tion that Dermot fhould give him his eldett Daughter in Matriage, and his Kingdom of Leinfler aftet his Death. About the fame Time, Roéert Fitz - Stephen, Governor of Aberleie in Wales, agreed likewife with Dermot to help him, on Condition that he would grant to him and Maurice Fitzgerald, in Fee, the City of Wexford, with two Cantreds or Hundreds of Land near ad- joining. Thefe Adventurers afterwards went over, and were fuccefsful in treating with the drifoy and taking Wexford, Waterford, Dub- fin, and other Places. Whereupon Earl Richard Strongbow married Dermot’s Daugh- ter; and, according to compact, fucceeded him in his Kingdom. A little after the Defcent of thefe Adven- turers, King Henry II. himfelf went into freland with an Army, in November, 11723 and finding that his Subjects of England had 4made a Very good Hand of their Expedi- tion, he obtained from Earl Richard Strong- bow a Surrender of Dublin, with the Can- tredsIRELAND, &e. 7 treds adjoining, and all the maritime Towns and Caftles. But Strongbow and his Heirs were to enjoy the Refidue of Dermot’s Prin- cipality. King Henry I. landed at Waterford from Milford in Pembrokefbire, and ftaying there fome few Days, (fays Giraldus Cambrenjis) Rex Corcagienfis Dormitius advenit ei, 8 tam Subjectionis vincule quam fidelitatis Sacramento Regi Anglorum fe [ponte fubmifit. He freely Jwore Fealty and Subjection to the King of England, From thence he went to Li/more, and thence to Cafhel, where Dunaldus, King of Lymerick, fe quogue fidelem Regi exhibuit. The like did all the Nobility and Princes in the South of Ireland. Afterwards he marched to Dud/in, and there the Princes of the adjacent Countries came to him, & fab Fidelitatis @ Subjectionis obtentu a Rege Pacem impetrabant. Thus Cambrenfis in his Hibernia Expugnata; and there he mentions the feveral Princes that came in, viz. Macfhaghlin, King of Ophaly; O Carrol, King of Uriel; (now Lowth) O Rourk, King of Meath; Rotherick O Connor, King of Connaught, and Monarch, as it were, of the whole Ifland; with divers others, gui firmiffimis fidelitatis & fubjectionis vinculis Domino Regi innodarunt & in fingulari Rothe- rico Conattie Principe tanquam Infule Mo- uarché fubditi redduntur univerfi, nec alicujus B4 Sere8 THE CASE OF Sere in Infula vel nominis vel cminis erat que Rege Majefati & Detitam Domina Reveren~ tiam, non exbiberet. The fame Relation we have from Reger Hisveaez i Annal. parfpofter. fol. 301.) Abcut the Kalends ot Nevember, 1172, (faith he) King Henry II. of Exgland took Ship- ping for Ireland at Milford, and landed at Waterford, & ibi venerunt ed eum Rex Corca- gienfis, Rex de Lymerick, Rex ce Oxvenie, Rex Midia, 2 fere omnes Hibernia Potentates. And a little afterwards, in the fame Place, {peaking ot King Henry the Second’s being at Waterford, ilidem venerunt ad Regem An- ghe omnes circhiepifcepi, Epifcop!, 8 Abbates totius Hibernia, © receperunt cum in Regen & Deminum Hibernia jurantes ei S Lercdibus fits Fidehtatem & Regrendi fiper eos Pote- fratem ii in perpetunin & inde Dederunt et Char- ‘tas fuas. Excapls autem Clericorum predith Reges & Principes Fibernuice receperunt fimili modo Henricum Rezem Angle in Deminum & Regen Hibernia & fui devenerunt, © et & Heredibus fuis Fidelitatem contra ones Jura- verunt. Matthew Pceris likewife in his Hiftory, {peaking of King Henry IV. being in Irclend, faith, Archiepifecpi & Epijcopi ipjum in Regem & Domninum receperunt, © ei Fidehtaten & Furaverunt. Jobn Brampton, Abbot of Fornal, in his Bifcria Fornalenf, page 1070, {peaking of HenryIRELAND, &. 9 Henry U1. hath thefe Words, Recepit ab uno- guoque Archiepifcopa & Epifcopo Hibernre Literas cum Sigillis fuis in modum Charte pen- dentibus, Regnum Hibernie fibi & Haredibus fits Confrmantes, & Teftimonium perhibentes ipfas in Hibernia eum & Heredes fuos fili in Reges &G Dominos in perpetuum Conflituife. All the Archbifbeps, Bifhops, and Abbots of Irclind came to the King of England, and received him for King and Lord of Jree land, {wearing Fealty to him and his Heirs for ever. The Kings alfo and Princes of Ireland did in like manner receive Henry King of England for Lord of Ireland, and became his Men, and did him Homage, and fwore Fealty*to him and his Heirs againft all Men. And he received Letters from them with their Seals pendant in the man- ner of Charters, confirming the Kingdom of Ireland to him and his Heirs; and tefti- fying, That they in Jreland had ordained him and his Heirs to be their King and Lord of Ireland for ever. After which, he returned into England in April following, viz. April, 1173. I come now to enquire into our fecond Particular propofed, viz. Whether Ircland might be properly {aid to be conquered by King Henry the Second, or by any other Prince in any fucceeding Rebellion. And here we are to underftand by conguef, an Acquifition of a Kingdom by Force of Arms, to which10 THE CASE OF which Force likewife has been oppofed; if we are to underftand Conqueft in any other Senfe, I fee not of what Ufe it can be made againft Ircland’s being a free Country. I know Conguefius fignifies a peaceable Acqui- fition, as well as an hoftile Subjugating of an Enemy. Vid. Spelman’s Glof: And in this Senfe, Wi/iam the Firft is called the Conqueror; and many of our Kings have ufed the Epocha, pof Congqueflum. And fo likewife Henry the Second ftiled himfelf Congueftor © Dominus Hibernia; but that his Conqueft was no violent Subjugation of this Kingdom, is manifeft from what fore- goes: For here we have an intire and voluntary Submiffion of all the ecclefiaftical and civil States of Ireland to King Henry IT. without the leaft hoftile Stroke on any Side; we hear not in any of the Chronicles of any Violence on either Part; all was tranfaéted with the greateft Quiet, Tranquility, and Freedom imaginable. I doubt not but the barbarous People of the Ifland at that Time were ftruck with Fear and Terror of King Henry Il’s powerful Force which he brought with him ; but ftill their eafy and voluntary Submiffions exempts them from the Confe- quences of an hoffile Conguef, whatever they are; where there is no Oppofition, fuch @ Conquefb can take no place. I have before taken Notice of Henry the Second’s ufing the Stile of Conquefor Hiber-IRELAND, &c. " Hibernia * ; 1 prefume no Argument can be drawn from hence for Ireland's being a con- quered Country ; for we find that many of the Kings of England have ufed the Aira of poh Conqueftum ; Edward the Third was the firft that ufed it in England; and we fre- quently meet with Henricus poft Conqueflum Quartus, &c. as taking the Norman Invafion of Wilham the Firft for a Conguef. But I believe the People of England would take it very ill to be thought a conquered Nation in the Senfe that fome impofe it on Ireland: And yet we find the fame Reafon in one Cafe as in the other, if the Argument from the King’s Stile of Congueffor prevail. Nay, England may be faid much mote properly to be conquered by William the Firft, than Ire- land by Henry the Second: For we all know with what Violence and Oppofition from Harrold King William obtained the King- dom, after a bloody Battle near Haffings. Whereas Henry the Second received not the leaft Oppofition in Ireland, all came in peaceably, and had large Conceffions made them of the like Laws and Liberties with the People of England, which they gladly accepted, as we fhall fee hereafter. But I am fully fatisfied that neither King Wiliam the Firft in his Acquifition of Fingland, or * Mr. Sexpew will not allow that ever Heary II. ufed this Stile, Tit. Hon. Par. 2. C. 5. Seé?. 26. Henry12 THE CASE OF Henry I1.in his Acqueft of Ireland, obtained the leaft Title to what fome would give to Conguerors. Tho’ for my own Part, were they Congucrors in a Senfe never fo ftrié, I fl-ould enlarge their Prerogative very little or nothing thereby, as fhall appear more fully in the Sequel of this Difcourfe. Another Argument for Henry the Second’s boftile Conqueft of Irclaid, is taken from the Oppofition which the Natives of Ireland gave to the firft Adventurers, Fitz- Stephens, Fitz- gerald, and Earl Strongbow, and the Battles they fought in afiifling Mac-Morrogh Prince of Leinfier, in the Recovery of his Princi- pality. "Tis certain there were fome Conflicts be- tween them and the Jri/d, in which the latter were conftantly beaten; but certainly the Conquefts obtained by thofe Adventurers, who came over only by the King’s Licenfe and Permiffion, and not at all by his parti; cular Command (as is manifeft from the Words of the Letters Patents of Licenfe recited by Giraldus Cambrenfis, Heb. Expug. page 760. Edit. Francof. 1603. Angl. Norm. Hiber. Cambd. can never be called the Con-~ queft of Henry the Second, efpecially con- fidering that Henry the Second himfelf does not appear to have any Defign of coming into Ireland, or obtaining the Dominion thereof, when he gave to his Subjects of England this Licenfe of affifting Mac-Mor- rogh,IRELAND, &c. 3 rogh. But I conceive rather the contrary appears by the Stipulations between Mac- Morrogh and the Adventurers, and efpeci- ally between him and Strongbow, who was to fucceed him in his Principality. From what foregoes, I prefume it appearsy that Ire/and cannot properly be faid fo to be conquer’d by Henry the Second; as to give the Parliament of England any Jurifdiction over us; it will much more eafily appear, that the Exgli/h Vigtories in any {ucceeding Rebellions in that Kingdom, give no Pretence to a Conqueff: If every Suppreffion of a Rebellion may be call’d a Conguef, I know not what Country will be excepted. The Rebellions in England have been frequent ; in the Contefts between the Houfes of York and Lancafter, one Side or other muft needs be rebcll.ous. Iam fure the Commotions in King Géar/es the Firft’s Time, are ftiled fo by moft Hiftorians. This Pretence there- fore of Conqueft from Rebellions, has fo little Colour in it, that I fhall not init longer onit: I know Conguef is an hateful Word to Englifh Ears, and we have lately feen a Book* undergo a fevere Cenfure, for offer- ing to broach the Doéfrine of Congue/f in the Free Kingdom of England. But, to take off” all Pretence from this Title by Congue/?, I come in the third Place * Bithop of Saliury’s Paftoral Letter. to4 THE CASE OF to enquire, What Title Conqueft gives by the Law of Nature and Reafon? / And in this Particular I conceive,‘ that if the Aggreffor, or Infulter, invades a Nation unjuftly, he can never thereby have a Right over the conquered: This I fuppofe will be readily granted by all Men: If a Villain with a Pitol at my Breaft, makes me con- vey my Eftate to him, no one will fay that this gives him any Right: And yet juft fuch a Title as this has an uxjuff Conque- ror, who with a Sword at my Throat forces me into Submiffion ; that is, forces me to part with my Natural Effate, and Birth- sight, of being govern’d only by Laws to which I give my Confent, and not by his Will, or the Will of any other. Let us then fuppofe a juff Invader, one that has Right on his Side, to attack a Na~- tion in an hoftile Manner ; and that thofe who oppofe him are in the Wrong: Let us then fee what Power he gets, and over whom. Firft, Tis plain he gets by his Coaqueft no Power over thofe who conquered with him; they that fought on his Side, whether as private Soldiers or Commanders, cannot fuf- fer by the Conqueft, but muft at leaft be as much ¥reemen, as they were before: If any loft their Freedom by the Norman Con- queft, ({appofing King Wiliam the Firft, had Right to invade England) it was only the SaxonsIRELAND,,. &c. 15 Saxons and Britains, and not the Normans that conquered with him. In like manner, fuppofing Hen. II. had Rigdt to invade this Iffand, and that he had been oppofed therein by the Inhabitants, it was only the Anciext Race of the IJri#/h that could fuffer by this Subjugation ; the Englifh and Britains, that came over and conquered with him, retain’d all the Freedoms and Immunities of Free- Sorn Subjects ; they nor their Defcendants could not in reafon lofe thefe, for being fuccefsful and victorious; for fo the State of both Cozquerors and conquered fhall be equally flavijh. Now ‘tis manifeft that the great Body of the prefent People of Ireland, are the Proginy of the Engh/b and Britains, that from time to time have come over into this Kingdom; and there remains but a meer handful of the Ancient Iri/h at this Day ; I may fay, not one ina Thoufand: So that if I, or any Body elfe, claim the like Freedoms with the Natural Born Subjects of England, as being defcended from them, it will be impoffible to prove the contrary. I conclude therefore, that a ju? Conqueror gets no Power, but only over thofe who have actually afffed in that Unjuf? Force that is ufed againft him. And as thofe that joined with the Con- queror in a juft Invafion, have loft no Right by the Conqueft; fo neither have thofe of the Country who oppos'd him not: This feems fo16 THE CASE OF fo reafonable at firit Prepofal, that it wants little Proof. All that gives Title in a ju/ Conqueft, is the Ofpofers uling brutal Force, and quitting the Law of Reafon, and ufing the Law of Violence ; whereby the Conque- ror is entitled to ufe himas a Beef; that is, kill him, or enflave him. Secondly, Let us confider what Power that is which a Rigét{ul Conqueror has over the fubdued Oppsfrs: And this we fhall find extends little farther than over the Lives of the conguered; V fay littl farther than over their Lives; for how far it ex- tends to their Effetcs, and that it extends not atallto deprive their Pofferity of the Freedoms and Immuniites to which all Man- kind have a Right, 1 thall thew prefently: Fhat the jujl Cox queror has an abfolute Power over the Lives and Liberties of the conquered, appears from hence, becatfe the conquered, by putting themfelves in a Staze of War, by uling an unjuft Force, have thereby forfeited their Lives. For quitting Reafon, (which is the Rule between Man and Man) and ufing Force, (which is the Way of Beafs} they become liable to be de- flroy’d by him againtt whom they ufe Forces as any favage wild Bvaf? that is dangerous to his Being. And this is the Cafe of Rede/s in a fettled Commonwealth, who forfeit their Lives on this Account.. But as for forfeiting their Eftates,IRELAND, &. 1 Eftates, it depends on the Municipal Laws of the Kingdom. But we are now enquiring what the Confequence will be, between two contefling Nations. Which brings me to confider how far 4 jutt Conqueror has Power over the Pofferity and Eftates of the conquered. As to the Poferity, they not having joined or aflifted in the forcible Oppojition of the Conquerors ju/f Arms, can lofe no Benefit thereby: ’Tis unreafonable any Man fhould be punithed but for his own Fault. Man being a free Agent, is only anfwerable for hisown Demerits ; and as it would be highly unjuft to hang up the Father for the Son’s Offence, fo the Converfe is equally unjuft, that the Son fhould fuffer any Inconvenience for the Father’s Crime. A Father hath not in himfelf a Power over the Life or Liberty of his Child, fo that no Actof his can pof- fibly forfeit it. And tho’ we find in the Municipal Laws of particular Kingdoins, that the Son lofes the Father’s Eftate for the Rebellion or other Demerit of the Fa- ther, yet this is confented and agreed to for the public Safety, .and for deterring the Subjeéts from certain enormous Crimes that would be highly prejudicial to the Common- wealth. And to fuch Conftitutions the Sub- jects are bound to fubmit, having confented to them, tho’ it may be unreafonable to put the like in execution between Nation and Nation13 THE CASE OF Nation in the State of Nature: For in fettled Governments, Property in Eftates is re- gulated, bounded and determined by the Laws of the Commonwealth, confented to by the People, fo that in thefe, ’tis no In- juftice for the Son to lofe his Patrimony for his Father’s Rebellion or other Demerit. If therefore the Pofferity of the conquered, are not to fuffer for the unjuft Oppoftion given to the Victor by their vanceflors, we thall find little Place for any Power of the Conquerors over the Effates of the fubdued. The Fatber, by his Mifcarriages and Violence; can forfeit but his own Life, he involves not his Children in his Guile or Deftruction: His Goods, which Nature (that willeth the Preiervation of all Mankind as far as pofhible) hath made to belong to his Céildren to ful tain them, do ftill continue to belong to his Children. ’Tis true indeed it ufually hap- pens that Demage attends unjutt Force ; and as far as the Repair of this Damage requires it, fo far the rightful Conqueror may in- vade the Goods and Eftate of the conquered 5 but when this Damage is made up, his Ti- tle to the Goods ceafes, and the Refidue belongs to the Wife and Children of the fub- dued. It may feem a ftrange Doétrine, that any one fhould have a Power over the Life of another Man, and not over his Efate ; but this we find every Day, for tho” | may dillIRELAND, &&. ig Bill a Thief that fets on me in the High= way, yet I may not take away his Moneys for “tis the brutal Force the Aggreffor has fed, that gives his Adverfary a Right to take away his Life, as a noxious Creature : But "tis only Damage fuftained, that gives Title to another Man’s Goods. It muft be confeffed that the Pradticé of the Wor!d is otherwife, and we commonly fee the Conqueror (whether ju or unjuff by the Force he has over the conquered; compels them with a Sword at their Breaft to ftocp to his Conditions, and fubmit td fuch a Government as he pleafes to afford them. But we enquire not now what is the Praétice, but what Right there is to do fo. If it be faid the conquered fubmit by their own Confent; then this allows Confent neceflary to give the Conquerot a Title to Rule over them. But then we may enquire, whether Promifes extorted by Force with- out Right, can be thought Confent; and how far they are obligatory ; and I humbly con- ceive they bind not at all. He that forces my Horfe from me, ought ptefently to re4 fire him, arid Ihave ftilla Right to retake him: So he that has forced a Promife from me, ought prefently to reflore it, that is, quit me of the Odiigation of it, or I may chufe whether I will perform it or not: For the Law of Nature obliges us only by the Rules the prefcribes, and therefore can- C2 not29 THE CASE OF not oblige me by the Vislation of her Rules; tuch is the extorting any thing from me by Feree. From what has been faid, I prefume it pretty clearly appears, that an wnjuff Con- queit gives zo Te at all; that a juff Con- queit gives Power only over the Lsves and Literties of the adtual Oppofers, but not over their Poferity and Eflates, otherwife than as before is mentioned; and not at all over thefe that did not concur in the Oppofition. They that defire a more full Difquifition of this Matter, may find it at large in an incomparable Treati/e, concerning the True original Extent and tind of civil Government, Chap. 16. This Difcourfe is faid to be written by my excellent Friend, Joun Locke, E/j; Whether it be fo or not, I know not; this I am fure; whoever is the Author, the greateft Genius in Chrijfendom need not difown it. Burt granting that all we have faid in this Matter is avong; and granting that a Conqueror, whether juff or unjuf, obtains an “ ute arbitrary Dominion over the Per- fons, Ejlates, Lives, Liberties and Fortunes of all thofe whom he finds in the Nation, their Wives, Pofterity, Gc. fo as to make perpetual Sh es of them and their Genera- tions to come; let us next enquire, whether Concegious granted by fuch a victorious Hero do not bound the Exorbitancy of his Power, andIRELAND, &c. 20 and whether he be not obliged ftrictly to obferve thefe Grants. And here I believe no Man of common Senfe or Juftice will deny it; none that had ever confidered the Law of Nature and Na- tions, can poflibly hefitate on this Matter ; the very propofing it ftrikes the Senfe and common Notions of all Men fo forcibly, that it needs no farther Proof. I fhall therefore infiit no longer on it, but haften to confider how far this is the Cafe of Ire- Jand: And ‘that brings me naturally to the fourth Particular propofed, viz. to thew by Precedents, Records, and Hiftory, what Conceffions and Grants have been made - from time to time to the People af Jre/znd, and by what Steps the Laws of England came to be introduced into this Kingdom. We are told by Matth. Paris, Hittorio- gtapher to Henry III. that Henry the Second, alittle before he left Ireland, in a public Affembly and Council of the [vif at Lif- more, did caufe the Iri/h to receive, and {wear to be governed by the Laws of Eng- land: Rex Henricus (faith he) enteguam ex Hibernia Rediret apud Lifinore Concilium Con- gregavit ubi Leges Anglia funt ab omnibus gratantur recepta, & Furatorid cautione pre- fitd Confirmate; Vid. Matth, Paris, ad An. 1172. Vit. H. 2. And not only thus, but if we may give Credit to Sir Bacar Cook, in the 4th Inttit. C3 Cap.22. THE CASE OF Cap. 1. and 76. and to the Infcription te the Iri/b Modus Tenendi Parliamentum, it will clearly appear, that Henry the Second did not only fettle the Laws of England in Ire- land, ana the Jurifdidtion ecclefiaftical there, by the vohentary Acceptance and Allowance of the Nobility and Clergy, but did likewife allow them the Freedom of holding of Par- Haments in Ireland, as a feparate and diftin& Kingdom from Exgiand; and did then fend them a Modus to direé&t them how to hold their Parliaments there. The Title of which Modus runs thus : “¢ Henricus Rex Statuté 33 Henry the Eighth, c. 1. directing how Lands and Tenements may be difpoied by Will, &c. was not of force in Ire/and until “0 Car, 2. Sef. 2. The A& of Uniformity of common Prayer and Admidiftration of the Sacraments was Eq made56 THE CASE OF made in Exg/and the 1ft of Eliz. c. 2. but was not eftablifhed in Jre/and until the 2d of Elz. c. 2, And fo that of England, 14 Car, 2. c. 14. was not received in Ireland until 17 and :8 Car. 2. c. 6. The Statute againft wilful Perjury, made in England 5 Ehz.c. 9. was not enacted in freland until 28 Eliz. c. 1. So the Enghjh A& againtt Witchcraft and Sorcery, but was not eftablifhed in Jre- aud until the 2d of Eliz. c. 2. made 5 Eéz. c. 16, And another A@ againft Forgery, 5 Eliz. c. 14. were neither of them in force in Jreland until the 28th of her Reign, Cap. 3 and 4. The Enghje Statutes againft Pirates was made the 28th of Henry the Eighth, c. 15.bu in Ireland until the. 12th of King Fames,c. 2. In England an A&t was made the 27th of Eliz. c. 4. againft fraudulent Conveyance ; but it was not in force in Ireland until enacted here the 1oth of Charles, c. 3. Sef. 2. In the 15th Year of King Charles the Firft, ina Parliament held at Dudiin, there were fix Engiifb Statutes made Laws of this Kingdom, with fuch Alterations as beft fitted them to the State thereof, viz. 21 Jac. c. 14. for pleading the general Iffue iu Inturfions brought by the King,. by Chap. 1. of the Difh Statutes. gt Eliz.IRELAND, &. 9 ' 41 Eliz. c. 2. For abridging of Proclama- tions on Fines, by Chap. 2. .2 and 3 Ed. 6. c. 8. concerning Offices before the Efcheator, by Chap. 4. - 31 Eliz.c. 1. Difcontinuance of Writs of Error in the Exchequer Chamber, by Chap. 5. 8 Fz. c. 4. and 18 Elz. c. 7. concerning Clergy, by Chap. 7. 24 Henry the Eighth, c. 5. Concerning killing a Robber, by Chap. 9. There are fix Engijb Statutes likewife paffed in the Time of King Cdarles the Se« cond, upon, and foon after the Reftoration, fome of which were not paffed into Laws in Ireland until a Year, two or three, af= terwards : As will appear by confulting the Sratute-Books *. And in the firft Year of Williamand Mary, Sef. 2. c. g. an A& pafled in England, declar+ ing all .4¢tainders and other Aéts made in the late pretended Parliament under King James, at Dublin, void: But was not enatied here in Ireland until the 7th Year of King Wil- ham, c. 3. And this was thought requifite - to bedone upon mature Confideration there- * Tripp Stat. 13.C. 2. e. 2.13 C. 2. 0. 3.14 & 15 C.2. et. 14 & 15 C.2. 6, 19.17 & 18 Ci 2c. 3. 17 & 18 Cc 2.e.11. Englife Stat. 12. C. 2. 6.12.12 C2. & 3. 12 2.6. 14. 120, 2.6.24. 12 C. 2. 6 33. 16 & 17 C. Be de Ss on58 THE CASE OF en before the King and Council of Englead*, notwithftanding that the Engiifh Acts does icularly name Ireland, and was wholly defigned for, and relates thereto. The like may we find in {everal other Sta- tutes of England paffed fince his prefent Ma- jefty’s Acceflion to the Throne, which have afterwards been paffed herein drefand, with fuch Alterations as make them practicable and agreeable to this Kingdom. Such as are amongtt others, the Act for Gfarming Papifis. The AGof Recognition. The At for tak- ing away Cérgy from fome Offenders. The AG for taking /pectal Bail in the Country, &c. The A againtt Clandeftine Mortgages. The AG againkt Curfing and Swearing. Thefe, with many more, are to be found in our Statute-Books, in the feveral Reigns of Henry the Eighth, Edward the Sixth, Queen Eizadeth, King James, King Charles the Firft and Second, and King Wilham, But it is not to be found in any Records in Ireland, that ever any A& of Parliament in- troduGtive of a new Law made in Exglond fince the Time of King ‘fobn, was by the Judgment of any Court received for Law, or put in Execution in the Realm of Ireland, * Far we had two feveral AAs tranfmitted to us at difs ferent Times, to this very Purpofe. One we rejeéted in the Lord Sypxey’s Gove:xment, the other we paffed under the Lord Carenr. beforeIRELAND, &. 59 before the fame was confirmed and affented to by Parliament in Ireland. And thus I prefume we have pretty clearly made out our fourth Enquiry forementioned; and thewn plainly the feveral Steps by which rhe Englith Form of Government, and the Eng~ lith Statute Laws were received in this King-. dom ; and that this was wholly by the Peo- ple's Confent in Parliament, to which we have had a very ancient Right, and as full aRight as our next Neighbours can pretend to or challenge. I thall now confider the Objedtions and Difficulties that are moved on this Head, drawn from Precedents and Paffages in our Law-Books, that may feem to prove the contrary. Firft it is urged, that in the Irith é, concerning Rape, paffed Anno 8 Edward the Fourth, ¢. 1. it is expreffed, Thata Doubt was conceived whether the Engij Statute of the Sixth of Richard the 2d, c. 6. ought to be of force in Ireland, without a Confir- mation thereof in the Parliament of Ireland. Which fhews (as fome alledge) that even in thofe Days it was held by fome, that an A& of Parliament in England might bind Ireland before it be confented to in Parlia~ ment here. But I conceive this Glofs is raifed meerly for want of expreffing the Reafon of the faid Doubt in the Irith Statute of the oe °60 THE CASE OF of Edward the Fourth, c. 1. which we thay reafonably judge was this. By the Statute of Wefiminfter the Second, ¢. 34. a Woman that eloped from her Hufband and lived with the Adulterer ; or a Wife, that being firft ravifhed, did afterwards confent and lived with the Ravifher, the fhould lofe het Dower, This Statute of Weffminfter the Se- cond, was made of Force in Ireland; by an AG paffed here the 13th of Edward the Second, as we have feen before, page 68; 69. Afterwards, by the Engij/b Statute of the 6th of Richard the Second, c. 6. there was a farther Addition made to the faid Statute of Weftminfter the Second, to this Effeét, that a Maiden or Wife being ravifhed,; and afterwards confenting to the Ravithers, as well the Ravither as fhe that was ravifh- ed, fhall be difabléd to claim all Inheritance or Dower after the Death of her Hufband or Anceftor. On this Account the Doubt was here taifed in Ireland, in the 8th of Edward the Fourth, ¢. 1. Whether this latter Englifh Statute of the 6th of Richard the Second, c. 6. were not in Force in Ireland, by vir- tue of the Irifh Statute of the 13th of Ed- ward the Second, which confirmed the Sta- tute of Weflminfler the 2d. c. 34. And for fettling this Doubt the faid Statute of the 8th of Edward the Fourth, c. 1. was pailed in Ireland; and we find very good Reafon forIRELAND, &c. 61 for the faid Doubt. For the Exgii/h Statute of the 6th of Richard the Second, c. 6. con- tained but a fmall Addition to the Statute of Weftminfler the 2d. c. 34, and we fee, that even this Addition itfelf was judged not to be of Force in Ireland, till enacted here. For the faid Jri/h Statute of the the 8th of Edward the Fourth, c. 1. makes the faid Statute of the 6th of Richard the Se- cond, ¢. 6. of Force in Ireland only from the 6th of Marcé, then laft pat. ~ It is urged, fecondly, that though perhaps fuch Aéts of Parliament in England, which do not name Ireland, thall not be conftrued to bind Ireland; yet all fuch Englifh Statutes as mention Ireland, either by the general Words of all bis Majefty’s Dominions, or by particularly naming of Ireland, are and fhall be of Force in this Kingdom.’ " This being a Doétrine firft broached dire@tly (as I conceive) by Wilkam Huffey, Lord Chief Juftice of the King’s Bench in England, in the firft Year of Henry the Se- verith, and of late revived by the Lord Chief Juftice Cook, and ftrongly urged, and much relied upon’ in thefe Jatter Days; I fhall take the Liberty of enlarging thereon, though I venture thereby to fwell this Pam- phlet to a Size greater than I defire or de- figned. Firft therefore, as to fuch Enghjb Statutes as feem to comprehend Ireland, and to bind it,42 THE CASE OF it, under the general Words of ail is Ma- Jefty’s Dominions or Sxbjeéts, whatever hag been the Opinion of private and particular Lawyers in this Point, Lam {ure the Opinions of the Kings of England and their Privy- Council have been otherwife. It is well, known fince Poyning’s A& in Ireland, the oth of Henry the Seventh, no A& can pafs, in our Parliament here, till it be firft af fented to by the King and Privy-Council of England, and tran{mitted hither under the broad Seal of England: Now the King and his Privy-Council there have been {o far from furmifing, that an A& of Parliament of England, mentioning only in general af tbe King’s Dominions or Subjects, fhould bind Ireland, that they have clearly thewn the contrary, by frequently tranfmitting to Ir¢- land, to be paffed into Laws here, Enghfh Statutes, wherein the general Words of ai/ the King’s Dominions or Subjeé#s were con~ tained; which would have been to no pur- pofe, but merely Aum Agere, had Ireland been bound éefore by thofe Exgk/b Sta- tutes. Of this I thall give the following Examples, amongft many others. : The AG of Parliament in England againft Appeals to Rome, 24 Henry the Eighth, c. 12. by exprefs Words extends to all his Majefty’s Dominions; yet the fame was not in Force, nor received in Ireland till it wagERELAND, &. 63 was enaéted by Parliament there, the a8th of Henry the Kighth, c. 6. . In like manner the Statutes made in Eag- jand concerning jirf Fruits, 26 Henry the Eighth, ¢. 3. and the Act of Faculties *, 25 Henry the Eighth, c. 21. though cach of them, by exprefs Words, comprize aff bis Majefty's Subjeéis and Dominions, were not received as Laws in Ireland, ’till the former was enacted there, 28 Henry the Eighth, ¢. 4. and the latter, 28 Henry the Eighth, c. 19. and fo the Statute, reftoring to the Crown all Jurifdiction ecclefiaftical made in England, Anno 1 Elizabeth, c.1. and therein giving Power to erect an ecclefiaftical Higé- Commiffion-Court in England and Ireland, yet was not of Force in Ireland ’till enacted there, Anna 2 Elizabeth, c.1. And though the faid Exgij/b AG, in relation to ere&ing fuch an High-Commiffion-Court, was re- pealed 17 Charles 1. c. 11. and the Repeal confirmed the 13 Charles the Second, c. 12. And the late Bill of Rights, 1 William and Mary, Sef. 2. c. 2. in England, has damned all fuch Courts. Yet the Act in Ireland, 2 Elizabeth, c. 1. remains ftill in Force here; and fo it was lately declared here by the Lord High-Chancellor Porter, Lord Chief Juftice Reyue/, Lord Chief-Baron Hely, Mr. Juftice Cox, Mr. Juftice Sefferyfon, in the * Title in the Englifs Statutes is, No Impofition hall be paid to the Bifkop of Rome, Cal ale64 THE CASE OF Cafe of Dr. Thomas Hacket, late Bifhop of Dow, who was deprived of the faid Bithopric by fuch a Commiffion, for great Enormities ; the Commitfioners being Dr. Dopping, late Bithop cf Meath; Dr. King, the prefent Bithop of Leudonderry; and Dr. Wifeman, late Bithop of Dormore. And truly I fee no more Reafon for bind- ing Ireland by the Enghfb Laws under the ~ general Words of al! bis Majefty’s Dominions or Sudjeéts, than there is for binding Scot~ land by the fame; for Scotlaud is as much his Dominion, and Scotchmen as much his Subjects, as Ireland and Irifbmen. If it be faid, that Scotland is an ancient, feparate, and diftiné Kingdom from England; J fay, fo is Ireland: The Difference is, Scotland continued feparate from the Kings of Exg- dand, wil of Nate Years; and Ireland conti- snued feparate from Exg/and but a very little while in the Perfon of King Ycbn, before the Death of his Father, and of his Brother, Richard the Firft, without Iffue. But then it is to be confidered, that there was a Pofli- bility, or even a Probability, that Ire/end might have continued jeparate from the Crown of Exgland even to this very Day, if Richard the Firft had left behind him a numefous Progeny. Secondly, as to fuch Englib Statutes as particularly.name Ire/and, and are therefore faid to be of force in this Kingdom, though neverPtRELAND, &. 65 hever enacted here; I fhall confider only the more ancient Precedents that are offered in confirmation of this Doétrine: For as to thofe of later Date, it is thefe we complain of, as bearing hard on the Liberties cf this Country, and the Rights of our Parliaments, and therefore thefe ought not to be produced as Arguments againft us. I prefume, if I can fhew that the ancient Precedents that are produced do not conclude again(t us; it will follow, that the modern Inftances given ought not to conclude againit us; that is to fay plainly, thefe ought not to have been made as they are, as wanting Foundation both from Authority and Reafon. The ancient Precedents of Engh/h Sta- tutes particularly naming Ireland, and {aid to be made in Exgland with a Defign of bind- ing Ireland, are chiefly thefe three : 1. Statutum Hibernia, 14 Henry the Third. 2. Ordinatio pro Statu Hibernia, 17 Ed- ward the Firft. 3. And the Ad, that all Staple Commo- dities paffing out of England or Ireland, fhall be carried to Callis, as long as the Staple is at Callis, 2 Henry the Sixth, c. 4. on which Huffy delivered his Opi- nion, as we fhall fee more fully here- after. _ Thefe Statutes, efpecially the two firft, being made for Ireland, as their Titles irti- F port,66 THE CASE OF port, have given occafion to think, that the Parliament of England have a Right to make Laws for Ireland, without the Confent of their chofen Reprefentatives. But if we en- quire farther into this Matter, we fhall find this Conclufion not fairly deduced. Firft, the Statutum Hiternia, 14 Henry the Third, as it is to be found in the Col- leGtion of Engli/h Statutes, is plainly thus : The Judges in freland conceiving a Doubt concerning Inheritances devolved to Sifters or Coheirs, viz. whether the younger Sif- ters ought to hold of the elder Sifter, and do Homage to her for their Portions, or of the chief Lord, and do Homage unto him ; therefore Girald Fitz-Maurice, the then Lord Juftice of Ireland, difpatched four Knights to the King in England, to bring a Certificate from thence of the Praétice there afed, and what was the common Law of England in that Cafe. Whereupon Henry the Third, in this his Certificate or Refeript, which is called Stetutum Hibernie, merely informs the Juftice what the Law and Cuf- tom was in England, viz. that the Sifters ought to hold of the chief Lord, and not of the eldeft Sifter. And the Clofe of it commands, that the aforefaid Cuftoms that be fed within our Realm of England in this Cafe, 2 proclaimed throughout our Dominion of \re- land, and be there obferved. Tefte me ipfo apud Weftminft. 9 Feb. dn. Reg. 14. FromIRELAND, &c. 67 _ From whence it is mianifeft, that this Statutum Hibernie was no-more than a Certificate of what the Common Law of England was in that Cafe, which Ireland, by the original Compact; was to be governed by. And thews no more, that therefore the Parliament of England mav bind Ireland; than it would have proved, that the Com- monwealth of Rome was fubject to Greece; if, after Rome had received the Law of the twelve Tables; they had fent to Greece to know what the Law was in fome fpecial Cafe. . _.The Statute called Ordinatio pro Statu Hirbernia, made at Nottingham, the 17th of Edward the Firft; and to be found in Pul- ton’s ColleGtion, page 76. Edit: Lond. 1670, was certainly never received; or of Force in Ireland. This is manifeft from the very firft Article of that Ordinance; which pro- hibits the ‘Fu/fice of Ireland, or others tbe King’s Officers there, to purchafe Land in that Kingdom, or within their refpective Balliwicks; without the King’s Licence, on Pain of For- feitires, But that this has ever been other- wife, and that the Lords Juftices, and other Officers here have purchafed Lands in Ire- dand at their own Will and Pleafure, needs ho Proof to thofe who have the leaft Know- ledge of this Country. Nor does it appear by any Inquifition, Office, or other Record, Fa2 that- 68 THE CASE OF that any one ever forfeited on that Ac- count. Moreover this Ordinatio pro Statu Hibernia is really in itfelf no A@ of Paliament, but merely an Ordinance of the King and his Privy-Council in England; which appears as well from the Preamble to the faid Ordi- nance, as from this Obfervation likewife, that King Edward the Firft held no Parlia- ment in the i7th Year of his Reign: Or if this were a Parliament, this Ordimatio pro Statu Hibernia, is the only A& thereof that is extant: But it is very improbabie that only this fingle Ordinance fhould appear, if any fuch Parliament were called together. Thirdly, as to the Staple AG, 2 Henry the Sixth, c. 4. which exprefily names Ireland, and Hufey’s Opinion thereon. The Cafe, as we find it in the Year-Books of Mich. 2. Rickard the Third, fol. 11. and Mich. 1 Henry the Seventh, fol. 3. is in fhort thus: The Merchants of Waterford having thip- ped off fome Wool, and configned it to Sluice in Flanders, the Ship, by Strefs of Weather, put into Calis, where Sir Thomas Thwaits, Treafurer of Callis, {eized the faid Wool as forfeited, half to himfelf, and half to the King, by the faid Statute ; hereupon a Suif was commenced between the faid Merchants and the faid Treafurer, which was brought before all the Judges of Exgland into the Exchequer-Chamber: The Mer- chantsIRELAND, we. “uy chants pleaded the King’s Licence to the Citizens of Waterford and their Succeffors, for carrying Wool where they pleafed ; and the Queftions before the Judges were two, viz. Whether this Staple A binds \reland ; and fecondly, Whether the King could grant his Licence contrary to the Statute, and efpe- cially where the Statute gives Half the For- Seiture to the Difcoverer ? The firft Point only relates to our prefent Purpofe ; and herein we find in the afore- faid Year-Book of 2 Richard the Third, fol. 12, to report it thus: Eg 767 (in the Exche- quer-Chamber) gusad Primam QSucftionen di- cebant quod Terr. Hibern. inter fe habent Parliament. & omninoda Cur. prout ia Angl. & per idem Parlismentum faciunt Lezes 8 Mutant Leges & non Obligantur per Statuta in Anglia, quia non bic babent Milites Parlia- menti (and is not that an unanfwerable Rea- fon?) fed boc intelligitur de terris 3 rebus in ferris illis tantum efficiendo ; fed Perfone eorum funt Subject. Regis 8 tanquam Subjeéti erunt Obligat: ad aliquam rem extra. Terram illam Jaciend. contra Statut. ficut babitantes in Ca- lea Gafccignie, Guien, Gc. dum fueri Sub- Jjethi; GS Obedientes erunt fub Admiral. Angl. de re fact. fuper altum Mare; & fimilit. Rrev. de Errore de Sfudicio reddit. in Hibern, in Banco Reg. bic mn Angl. I have verbatim tran{cribed this Paffage out of the aforefaid Year-Book, that I might F 3 be70 THE CASE OF be fure to omit nothing that may give the Objection its full Weight; and all that J can an{wer to it is this: 1. That when the aforefaid Cafe came a fecond Time under the Confideration of the Judges in the Exchequer-Chamber.in Mich. 1 Henry the Seventh, fol. 3. we find it re- ported thus: Huffy, the Chief Juttice, faid, That the Statutes made in England fhall bind thofe of Ireland, which was not much gain- fatd by the other Judges, notwithfanding that Some of them were of a contrary Opinion the laft Term in his Abfence. How the Pretence ard Opinion of the Chief Juftice came to influence them now, I leave the Reader ta judge. : z. That Brook, in abridging this Cafe of the firft of Henry the Seventh, fol. 3. Tit. Parhament, Sec. go. adds, Tamen Nota, That \reland is a Kingdom by itfelf, and bath Parliaments of its own ; intimating thereby, that therefore Hufey’s Opinion herein was vnreafonable. 3- That it is manifeft, if Hufey mean by his Words, that a// A@s of Parliament in Exglaad thall bind Ireland, it is directly con- trary to the Judge’s Opinion in the fecond of Richard the Third, before recited: For within the Land of Ireland they are all po- fitive, that the Authority of the Parliament of England will not affect us. They feem at the utmoit reach to extend the Jurifdic- tionIRELAND, &. 7 tion of the Eng/ifh Parliament over the Sub- jects of Ireland, only in relation to their Ac- tions beyond Seas, out of the Realm of Ireland, as they are the King of England's Subjects ; but even this will appear unrea- fonable, when we confider, that by the fame Argumentation Scotland itfelf may be bound by Enghj/b Laws in relation to their foreign Trade, as they are the King of England's Subjects. The Queftion is, whether Eng- Jand and Ireland be two diftin& Kingdoms ? And whether they have each their refpec- tive Parliaments; neither of which will be denied by any Man; And if fo, there can be no Subordination on either Side, each is complete in its own Jurifdiction, and ought not to interfere with the other in any Thing. If being the King of Exgland’s Subjects be a Reafon why we ought to fubmit to Laws (in relation to our Trade abroad, in Places where the Parliament of England has no Juri(di@ion) which have not received our Affent; the People of England will confi- der whether they alfo are not the King’s Subjeéts, and may therefore by this Way of reafoning, be bound by Laws which the King may affign them without their Affent, in relation to their Actions abroad, or foreign Trade: Or whether they had not been Sub- jects to the King of France, had our Kings continued their Poffeffion of that Country, and there kept the Seat of the Monarchy ; F4 and72 THE CASE OF and then, had France been ftronger than England, it might feem that the Subjeés of thefe Kingdoms might have been bound by Laws made at Paris, without their own Confent. But let this Dodtrine never be mentioned amongft the Free-born Subjects of thefe Nations. Thus I have done with the three princi- pal Inftances that are ufually brought againft us, on the Strefs that is laid on Exgh/b AGS of Parliament, particularly naming Ireland. There have been other Statutes or Ordi- nances made in England for Irciand, which may reafonably be of Force here, becaufe they were made and affented to by our own Reprefentatives. Thus we find in theWhite Book of the Exchequer in Dublin, in the oth Year of Edward the Firft, a Writ fent to his Chancellor of Ireland, wherein he mentions Quadam Statuta per nos de Affenfa Prelatorum Comitum Baronum & Communitates Regni noftri Hibernia, nuper apud Lincoln & quadam chia Statuta poftmodum apud Eborum faéia. Thefe we may fuppofe were either Statutes made at the Requeft of the States of Ireland, to explain to them the Comzion Law of Eng- land; or if they were introductive of new Laws, yet they might well be of force in Irelands being enréted by the Affent of our own Repvetentatives, the Lords Spiritual and Temporal, and Commons of Ireland; as the Words afore-mentioned do fhew i AnIRELAND, &e. 73 And indeed, thefe are Inftances fo far from making againft our Claim, that I think no- thing can be more plainly for us; for it manifeftly fhews, that the King and Parlia- ment of England would not ena& Laws to bind Ireland, without the Concurrence of the Reprefentatives of this Kingdom. Formerly, when Ireland was but thinly peopled, and the Engijfh Laws not fully current in all Parts of the Kingdom, it is probable, that then they could not fre- quently affemble with Conveniency or Safety to make Laws in their own Parliament at home ; and therefore, during the Heats of Rebellions, or Confufion of the Times, they were forced to enact Laws in England. But then this was always by their proper Repree Jentatives: For we find, that in the Reign of Edward the Third, and by what foregoes, it is plain it was fo in Edward the Firft’s Time, Knights of the Shire, Citizens and Burgefles were elected in the Shires, Cities, and Boroughs of Ireland, to ferve in Parlia~ ment in England; and have fo ferved ac- cordingly. For amongft the Records of the Tower of Lendon, Rot. Clauf 50. Edward the Third, Par/. 2. Memb. 23. we find a Writ from the King at Wefminjter, directed to Yames Butler, Lard Juttice of Lreland, and to R. Archbifhop of Dubin, his Chancellor, requiring them to iffue Writs under thy great Seal of Ire/azd, to the feveral Countie: : Cities74 THE CASE OF Cities and Boroughs, for fatisfying the Ex- pences of the Men of that Land, whe Jaf came over to ferve in Parliament in England. And in another Roll, the soth of Edward the Third, Membr. 19, on Complaint to the King by Yobn Draper, who was chofen Burgefs of Cork by Writ, and ferved in the Parliament of England, and yet was denied his Expences by tome of the Citizens, care was taken to reimburfe him. If from thefe la& mentioned Records, it be concluded that the Parliament of England may bind Ireland; it muft alfo be allowed, that the People of Ireland ought to have their Reprefentatives in the Parliament of England, And this I believe we thould be willing enough to embrace; but this is an Happinefs we can hardly hope for, This fending of Reprefentatives out of Freland to the Parliament in England, on fome Cccafions, was found in procefs of Time to be very troublefome and inconve- nient ; and this we may prefume was the Reafon that, afterwards, when Times were more fettled, we fell again into our old Track, and regular Courfe of Parliaments in our own Country; and hereupon the Laws afore-noted, page 64, were enacted, ettablifhing that zo Law made in the Parlia- ment of England fhould be of Force in Ireland, vill it wes allewed and publifbed in Parliament here, T haveIRELAND, &c, 75 I have faid before, page 85, that I would only confider the more antient Precedents that are offered to prove, that Acts of England particularly naming Ireland, fhould bind us in this Kingdom; and indeed it were fuffi- cient to ftop here, for the Reafon above alledged. However, I thall venture to come down lower, and to enquire into the modern Precedents of Englifh Acts of Parliament alledged againift us: But ftill with this Ob- fervation, that it is thefe we complain againft as Innovations, and therefore they ought not to be brought in Argument againft us. I do therefore again affert, that before the Year 1641, there was no Statue made in England introdugtory of a new Law that in- terfered with the Right which the People of Ireland have to make Laws for them- felves, except only thote which we have before-mentioned, and which we have dif- cuffed at large, and fubmit to the Readers Judgment. . * But in the Year 1641, and afterwards in Cromwel’s ‘Time, and fince that, in King Charles the Second’s Time; and again very lately, in King Wilkam’s Reign, fome Laws have been made in England to be of Force in Ireland. But how this came to pafs we fhall now enquire. , In the the 17th Year of King Charks the Firft, which was in the Year 1642, there were three or four Acts of Parliament made in76 THE CASE OF in England for encouraging Adventurers to raife Money for the {peedy Suppreffion of the horrid Rebellion which broke out in Ireland, the 234 of Oéfober, 1641. The Titles of thefe Acts we have in Pulton's Collections of Statutes: But with this Re- mark, that they are mad? of no Force by the AGs of Settlement and Explanation, pafled in King Céarles the Second’s Time in the Kingdom of Ireland. So that in thefe we are fo far from finding Precedents for Eng- dand’s Parliament binding Ireland, that they plainly thew, that the Parliament of Ireland may repeal an AG paffed in England, in re-~ lation to the Affairs of Ireland. For it is very well known, that Perfons who were to have IntereftsJand Titles in Ivelend by virtue of thofe Aéts paffed in Englaid, are cut off by the és of Settlement and Explanation. And indeed there is all the Reafon in the World that it fthould be fo, and that Acts made in a Kingdom by the legal Reprefen- tatives of the People, fhould take place of thofe made in another Kingdom. But how- ever, it will be faid, that by thofe Ads it is manifeft that Exgland did prefume they had fuch a Right to pafs Aéts binding Jre- fand, or elfe they had never done it. To which I anfwer, that, confidering the Con- dition Jreland was in at that Time, viz. under an horrid inteftine Rebellion, flaming in every Corner of the Kingdom ; it was im- poffibleIRELAND, &. 497 poflible to have a Parliament of our own; yet it was abfolutely neceffary that fome- thing fhould be done towards fupprefling the Violences then raging amongft us: And the only Means could then be practifed was for the Parliament of England to interpofe, and do fomething for our Relief and Safety; thefe were the beft Affurances could be had at that Juncture. But when the Storm was over, and the Kingdom quieted, we fee new Meafures were taken in a legal Parliament of our own. As to what was done for Ireland in the Parliament of Ezgland in Cromwel’s Time, befides the Confufion and Irregularity of all Proceedings in thofe Days, which; hinders any of them to be brought into Precedent in thefe Times. We fhall find alfo, that then there were Reprefentatives {ent out of this Kingdom, who fat in the Parliament of England, which then was only the Houfe of Commons. We cannot therefore argue from hence, that England may bind us ; for we fee they allowed us Reprefentatives, without which, they rightly concluded, they could not make Laws obligatory to us. Tcome now to King’s Charles the Second’s Time, and in it we fhall find the following Englifh Statute made, in which the Kingdom of Ireland is concerned. The firft is an A againft importing Cattle Jrom Ireland or other Parts seyond Seas. It was78 THE CASE OF was only temporary by 18 Céaries the Ses cond, ¢. 2. but made perpetual 20 Charles the Second, ¢. 7. and 32 Charles the Second, c.2. This Ad, however prejudicial to the Trade that was then carried on between Ireland and England, does not properly bind us, more than it does any other Country in the World. When any Thing is imported and landed in England, it becomes imme- diately fubjeé& to the Laws thereof; fo that hetein we cannot be faid properly to be bound. Secondly, the Aéts againft planting To- bacco in England and Ireland, 12 Charles the Second, c. 34. and 15 Charles the Se- cond, ¢. 7. and 22 and 23 Charles the Se- cond, ¢. 26, Gc. do pofitrvely bind Ireland. But there has never been an Occafion of executing it here; for I have not heard that a Rood of Tobacco was ever planted in this Kingdom. But however, that takes not off the Odligation of the Law: It is only want of our Confent that I urge againft that: I fee no more Reafon for fending a Force to _trample down an Acre of Tobacco in Ireland; by thefe Statutes, than there would be for cutting down the Woods of Shella, where there an A& made in England againft our planting or having Timber. Thirdly, the 44 for encouraging Shipping and Navigation, by exprefs Name, mentions - and binds Ireland; and by the laft Claufe in theIRELAND, & 49 the AQ, obliges all Ships belonging thereto, importing any Goods from our foreign Plan- tations, to touch firft at England. Fourthly, the Acts prohibiting the Ex- portation of Wool from Ireland to any Coun- try except to England, do likewife /frongly bind us; and by the 12 Charles the Seconds ¢. 32. it was made highly penal on us; and by the 14th of Charles the Second, c. 18. it is made Felony. To thefe three laft Acts I mutt confefs I have nothing to urge to take off their Efficacy 5 name us they do moft certainly, and dind us fo, as we do not tranfgrefs them. But how rightfully they do this is the Mat- ter in queftion. This I am fure of, that be- fore thefe Acts in King Charles the Second’s Time, (the eldeft of which is net over thirty-feven Years) there is not one poftive Jull Precedent to be met with in all the Sta- tute Book of an Engiith Aé& binding the King dom of Ireland. And on this Account we may venture to affert, that thefe are at leaft Innovations on us, as not being warranted by any former Precedents. . And thall Proceedings only of thirty-feven Years flanding, be urged againft a Nation to deprive them of the Rights and Liberties, which they enjoyed for five hundred Years before, and which were invaded without and againft their Confent, and from that Day to this have been conftantly complained of?80 THE CASE OF Let any Engijh Heart that ftands fo jufly an Vindication of his own Rights and Li- berties anfwer this Queftion, and I have done. I am now arrived at our prefent Days, under the happy Government of his Majefty King Wiliam the Third; and_I am forry to refle&, that fince the late Revolution in thefe Kingdoms, when the Subjects of Eng= © Jand have more ftrenuoufly than ever afferted their own Rights, and the Liberty of Par- liaments, it has pleafed them to bear harder on their poor Neighbours than has ever yet been done in many Ages foregoing. I am fure what was then done by that wife and juft Body of Senators was perfectly out of good Will and Kindnefs to us, under thofe Miferies which our afflited Country of Ireland then fuffered. But I fear fome -Men have fince that, made ufe of what was then done, to other Purpofes than at frft intended.. Let us now fee what that was, and confider the Circumftances under which it was done. In the Year 1689; when moft of the Proteftant Nobility, Gentry, and Clergy of Ireland were driven out of that Kingdornh by the Infolencies and Barbarities of the Iri/b Papifis; who were then in Arms throughout the Kingdom, and in all Places of Authoriy under King ames, newly returned to. thena out of France; the only Refuge we had to flyIRELAND, &c. 81 fly to wasin England, where Multitudes con- tinued for many Months, deftitute of all Manner of Relief, but fuch as the Charity of England afforded, which indeed was very munificent, and never to be-forgotten. The Proteftant Clergy of Ireland being thus banifhed from their Benifices, many of them accepted fuch {mall ecclefiaftical Pro- motions in England, as the Benevolence of well-difpofed Perfons prefented them with. But this being directly contrary to a Statute in this Kingdom, in the 17th and 18th of Charles the Second, cap. 10. intituled, 42 Aad Sor difabling of fpiritual Perfons from holding ' Benofices or other ecclefiaftical Dignities in Eng Jand or Wales, and in Ireland at the fame Time. The Proteftant Jrifb Clergy thought they could not be too fecure in avoiding the Pe- nalty of the laft-mentioned A, and there- fore applied themfelves to the Parliament of England, and obtained an A& in the firft Year of King Wiliam and Queen Mary, e. 29. intituled, 2 AG for the Relief of the Proteftant Irifh Clergy. And this was the firt Attempt that was made for binding Freland by an A& in England, fince his Ma- jefty’s happy Acceffion to the Throne of thefe Kingdoms. Afterwards, in the fame Year, and fame Seffion, chap. 34. there paffed an A@ in England, Probibiting all Trade and Commerce with France, both from England and Trelad. G This82 FHE CASE OF This alfo binds Ire/and, but was during the Heat of the War in that Kingdom, when it was impoffible to have a regular Parlia- ment therein, all being in the Hands of the Irifs Papifts. Neither do we complain of it, as hindering us from correfponding with the King’s Enemies, for it is the Duty of all good Subjeats to abftain from that. But as Scotland, though the King’s Subjects, claims an Exemption from all Laws but what they affent to_in Parliament; fo we think this our Right alfo. When the banifhed Laity of Ireland ob- ferved the Clergy thus careful tu fecure their Properties, and provide for the worft, as well as they could in that Jundcture, when no ether Means could be taken by a regular Parliament in Ire/and, they thought it like- wife advifeable for them to do fomething in relation to their Goncerns. And accordingly they obtained the 4@ for the better Security and Relief of their Majefty’s Proteftant Subjects of Ireland, 1 W. and M. Sef: 2. c. 9. Wherein King Sfames’s Irifh Parliament at: Dublin, and.all Ads and Attainders done by them, are declared void. Kt is likewife thereby enacted, that no Proteftant {hall fuffer any- Prejudice in his Eftate or Office, by reafon ef his Abfence out of Ireland fince December 25, 1685.3 and that there thoutd be a Remittal of the King’s Quit-Rent from: the 25th of December, 1688, to the End of theIRELAND, &e. 83 the War. Thus the Laity thought them- felves fecure. 1. And we cannot wondef, that during the Heat of a bloody War in this Kingdom, when it was impoffible to fecure our Eitates and Properties by a regular Parliament of our own, we fhould have Recourfe to this Means, as the only one which then could be had: We concluded with ourfelves; that when we had obtained thefe Acts from thé Parliament in England, we had gone a great Way in fecuring the like Aéts to be paffed in a regular Parliament in Ireland, whenever it fhall pleafe God to re-eftablith us in our own Country : For we well know our owr Conftitution under Poyning’s Law, that no AE could pafs in the Parliament of Ireland till approved of by the King and Privy Council of England. And we knew likewife, that all the Lords and others of his Majefty’s Privy Council in England are Members of the Lords or Commons Houfe of Parliament there. And that, by obtaining their Affent to Aéts of Parliament im Favour of the Irifh Proteftants, they had in a manner pre-en- gaged their Affent to the like Bills, when they fhould hereafter come before them as Privy Counfellors, in order to be regularly tranfmitted to the Parliament of Jreland, there to be paffed into Laws of that King~ dom. But inftead of all this, to meet with another Conftruction of what was done Ga herein