A DECLARATION OF THE People's Natural Right to a Share in the Legislature,
&c.
A DECLARATION OF THE PEOPLE'S NATURAL RIGHT TO A SHARE IN THE LEGISLATURE; Which is the FUNDAMENTAL PRINCIPLE OF THE BRITISH CONSTITUTION OF STATE.
By GRANVILLE SHARP.
Qui non libere veritatem pronunciat, proditor est veritatis.
4 Inst. Epil.
LONDON: Printed for B. WHITE, at HORACE'S-HEAD, in FLEET-STREET.
M.DCC.LXXIV.
PREFACE.
THE following
Declaration of the People's natural Right to a Share in the Legislature
is founded on Principles, which are certainly unquestionable, and cannot easily be controverted; but I was not aware, I acknowledge,
I freely acknowledge my deficiency in
historical
as well as most other branches of Learning, which require much reading and leisure to be obtained; but though this affords an argument against
my own personal credit and abilities, in general,
as a writer, yet it does not at all affect any particular point, which, in my several tracts, I have laboured to maintain; for, upon these, a candid Reader will determine according to the evidence produced, and not by the general character or
demerit
of the Author in other respects.
when I sent the same to the Press, that there had ever been any Controversy before the 6th of King George I. concerning the Freedom of our fellow-subjects in
Ireland,
or that any Englishman, acquainted with the principles of our excellent Constitution of State, had ever, before that time, presumed to advance any doctrine which might tend to deprive our Irish Brethren of their
natural Freedom,
and of the inestimable benefits of that happy legal Constitution, which British Subjects in general are commonly supposed to inherit by
Birth-right!
If I had not esteemed this point
incontrovertible,
when I wrote the said
Declaration,
I should not have quoted the Union between
Great Britain
and
Ireland
as an example of
the true constitutional
mode of
connecting British Dominions
that are otherwise
separated by nature.
But having done this, and having also given several copies of the Declaration to my friends which cannot now be recalled, I have thereby brought upon myself the necessity of maintaining the propriety of the said example, which might as easily have been avoided, had I been aware of any such controversy; because the general principles, on which my arguments are founded, would have been amply sufficient (I apprehend) to prove the truth of my
Declaration,
even though
Examples
and
Custom
had been against it; for the Common Law of
England
teaches us, that examples and precedents are not to be followed if they are
unreasonable,
or inconsistent with
legal
and
constitutional
Principles
This is clearly proved by a variety of unquestionable maxims;
Judicandum est
Legibus, non Exemplis.
Malus usus abolendus est.
In consuetudinibus non diuturnitas temporis, sod
soliditas rationis,
consideranda est.
Multitudo
errantium
non parit
errori
patrocinium.
; though, on the other hand, they are to be esteemed of very great weight and authority in Law, when there are
no just exceptions
against them
— et quia consuetudines illae
nec contra legem divinam nec contra rationem
in aliquo existunt, et pro bono communi totius Regni ex earum diurnitate censentur, fore necessariae,
vim Legis retinent,
&c.
Doct. et Stud. c. 7.
. And of this latter kind is the Example which I have quoted to illustrate my Declaration: for, though many great and respectable Writers have made
exceptions
to the constitutional Freedom of
Ireland,
which I had supposed to be unquestionable, yet, after the most careful examination of their opinions, and the
reasons
given for the same, (in which the proofs ought to consist,) I am now fully convinced that there are
no just exceptions
against that example; and, consequently, I am bound in justice, to my fellow-subjects in
Ireland
not to give it up; because the
"necessity"
(beforementioned)
of maintaining the
propriety of the example,
cited in my Declaration, arises not from any obstinate partiality to my own assertion, (which I confess was, at first, too hastily and unadvisedly made,) but from a firm persuasion, after a most cautious enquiry into the real state of the controversy, that the advocates for the Liberties of
Ireland
have Truth and Reason on their side, which, (I hope) the 2d Part, now added to my Declaration, will sufficiently testify.
It is necessary also for me to guard against another objection which might perhaps hereafter have been started against the following
Declaration.
I have quoted therein a maxim of the English Constitution, as a principle of
natural equity,
which had previously been denied that rank by one of the most eminent civilians of his time; and therefore, to avoid the influence of so great an authority against my Argument, I think it prudent, in this Preface, to examine the grounds of his objections, that my Readers may have sufficient evidence before them to distinguish where the truth lies; for it is certainly necessary for me to establish the first
principles
on which I have proceeded, before I can expect to have any attention paid to the Arguments which I have built upon them.
The maxim which I wish to maintain is as follows,
viz.
that
Law, to bind all, must be assented to by all
Principia Leg. et Aequit. p. 56. to which is added, by way of illustration,
Canons therefore bind not the Laity.
.
This maxim I have quoted in the following Declaration as a principle of
natural Equity;
though, it seems, the learned Civilian, Baron Puffendorf, has expressly refused to rank it with the
Laws of Nature:
He, or (rather I should say) his Translator, calls
The Edition which I have followed is only an English translation printed at Oxford in 1710.
it only
a notion.
"We cannot here but observe," (says he,)
that the
Notion,
maintained by some authors,
That the Consent of the People is requisite to make Laws oblige the Subject in Conscience,
is neither true
in the Laws of Nature,
nor in the civil Laws of monarchical or of aristocratical Rulers; nor indeed at all, unless it be understood of implicit consent; as a man, by agreeing to the Sovereignty of another, is at the same time, supposed to have agreed to all the future Acts of that Sovereignty
Law of Nature and Nations, Book 1. c. 6. p. 55.
.
(He has nevertheless thought proper to add an observation which makes strongly against his own argument.) "Though it would really be very useful," (says he,)
and contribute much to engaging the Subjects in a
voluntary Obedience,
if the Laws could be made
with their Consent
and Approbation; especially such as are to pass into their Lives and Manners.
Now it would be impossible (I apprehend) to find so just a reason in favour of the former part of the learned Baron's assertion, as he himself has here given
directly against it;
and yet he is frequently harping upon the same harsh string of absolute implicit obedience; which inconsistency cannot easily be accounted for, unless it be attributed to
the prejudice of his education
as a student in
the Impeperial or Civil Law.
For though the Civil Law contains many excellent maxims highly worthy of our esteem, most of which have been adopted by our ancient English writers of the Common Law of this Kingdom
What use our ancestors have made of the civil Law will readily appear to any one, that will take the trouble to compare the several works, which compose that voluminous body, with some of the most ancient English Lawyers, as Glanvil, Bracton, and others; who have adhered very closely to the rules and method of Justinian; have transcribed his Laws in their own proper language, and sometimes entire titles, as familiarly as if they were the original Laws of England.
Dr. Bever's Discourse on the Study of Juris-prudence and the Civil Law, p. 17.
; yet it includes some heterogeneous positions (that have been forced upon it by the overbearing influence and corrupt practices of unlimited Imperial Courts) which are highly unreasonable and contradictory to the general equity of its other principles. A position of this kind, too implicitly received as Law, seems to be the ground-work of the learned Baron's difficulty: I mean that
unreasonable
and dangerous position of the Civil Law, which attributes to the Prince's
Will and Pleasure
the
Force
of Law
Quod Principi placuit (juxta Leges Civiles) Legis habet vigorem.
Fortescue de Laud. Leg. Ang. c. 35. p. 83.
In this same chapter the learned Chancellor Fortescue recites many dreadful effects of this abominable principle in the Government and Police of
France.
viz. the pernicious and dangerous Policy of maintaining a
standing army;
for which the people were compelled to provide quarters and provisions, in all the great towns and villages.
Also the abominable oppression of the Salt Tax, whereby the poor were compelled to purchase of the King a certain quantity of
Salt
(whether they chose to have it or not) at an excessive price; by which, together with the assessments
to pay the troops,
and various other tallage rateable at the
King's pleasure,
the common people were reduced to extreme penury, and want of every comfort in life. And, with respect to persons of highter rank, if any Nobleman or Gentleman was accused of a crime, even by his enemies, he was liable to be dragged to a
private examination,
by the intermediation of messengers in the King's chamber, or elsewhere, in a private place, without seeing his accusers (himself alone being seen); and when the King (or perhaps his Minister) has
been pleased
to judge him guilty, the poor
passive Subject
is popped into a sack, and in the night time cast into the river by the Marshal's servants. Howsoever incredible such abominable injustice may appear to Englishmen, yet the worthy Chancellor, who wrote this account for the instruction of Edward Prince of Wales (the son of King Henry VI.) when in France, appeals to the young Prince's
own knowledge
of the notoriety of such facts: "You have heard," (says he)
that more men (by much) have died in this manner than by the ordinary course of justice; yet nevertheless
(says he ironically)
whatsoever hath pleased the King (according to the Civil Law) has the force of Law.
And while you have been in France, and in the neighbourhood of that Kingdom,
(continues the Chancellor to the young Prince,)
you have heard of other
enormities
like to these, and some even worse than these —
detestably
and
damnably perpetrated,
no otherwise than under the colour (or pretence) of
that Law, viz.
Quod Principi placuit (juxta Leges Civiles) legis habet vigorem.
Etiam et alia
enormia,
(says he)
hiis similia, acquaedam
hiis deteriora,
dum in Francia et prope regnum illud conversatus es, audisti non alio, quam
legis illius colore
DETESTABILITUR DAMNABILITER QUE PERPETRATA, quae hic inserere, nostrum nimium dialogum protelaret,
&c.
Whether or not
this particular mode
of dispatching the French King's Subjects is yet in use, I know not; but of this we are well assured, that
private executions of persons unknown
are still practised there, which in effect are
equally dangerous,
and cannot be considered in any other light than that of so many
wilful Murders,
for which the Kings of France, and all those men whom they have intrusted with the administration of Justice, are most certainly accountable, and must one day answer in their own private persons
as individuals,
besides the enormous guilt which lies heavy upon that whole people as a
nation,
for
passively
permitting such notorious and crying
iniquity
to be practised among them under the borrowed
name
of
Law:
And it is not only
the dispatching of men
(to put them out of the way of opposition to Government) that is intended by these
midnight executions,
but also, in some cases, to satisfy a base malicious revenge by torturing the helpless victim with the cruel death of
breaking on the wheel;
for, as both the
name
and
crime
of the
sufferer is concealed,
(or perhaps a wrong name given out to prevent pity,) it cannot be said that such cruelty is used by way
of example
to deter bad men from commiting treason, or other particular crimes; so that such
private executions
can be attributed to nothing but a DIABOLICAL DEPRAVITY in the minds of those who order them.
It also appears that one use of a
standing Army,
in that unhappy Kingdom, is to guard the avenues of streets to prevent the people from discovering the
actors
as well as
sufferers
at such horrid
masked tragedies
as I have mentioned; and therefore I cannot help remarking the extreme absurdity of that (otherwise) sensible and shrewd people in boasting of their
national military Honour,
when even large bodies of their best-disciplined troops, who are
Frenchmen
also by birth, and have the means in their own hands to render justice and restore liberty to their
much-injured countrymen,
can yet tamely yield themselves so far to the
absolute Will
of any man or men on earth, as to become
silent accomplices
(like the detestable Turkish
Mutes
of old) to the horrid crime of
wilful Murder,
(for such are the
secret executions
of France,) and professed
Tools
for perpetrating the most abandoned wickedness! To such a disgraceful and
slavish
pitch of
passive obedience
is that once-spirited nation now reduced, that they seem to give up all pretensions to that
fundamental Right of human Nature,
which alone distinguishes
men
from
brutes!
I mean the indispensible
Right of judging for themselves,
and of yielding obedience to the impulse of
Conscience,
according to that natural knowledge of
good and evil
which is implanted in
all men, (French soldiers
as well as others;) and of which they must one day render a strict account in a separate
disbanded
state, as
individuals,
(which I have before remarked,)
stript of their arms and regimentals!
Shall we, then, adopt the
Laws of France?
quod principi placuit?
&c.
It is not impossible that such a measure may sometime or other be proposed by an inconsiderate Minister, and that a Parliament (through the
unequal Representation of the
People, the
want of frequent elections,
and other defects in the constitution,
&c.
) may hereafter be led to yield their consent to it; but, even if ever that should be the case, I shall still entertain hopes, from the general disposition of our
British
Troops, (notwithstanding the alarming effects of
standing Armies
in all other Nations,) that they will never become so detestably base and degenerate as to permit their country to groan under any such iniquitous Oppressions as are practised in
France!
Nevertheless, should
they also
become such
slavish Tools of Despotism,
as to assist in enforcing any such unconstitutional measures, let them know, for a certainty, that, as soon as the
national spirit of Freedom
(of which they at present participate) is, by their means, unhappily suppressed, even they themselves must necessarily degenerate with their countrymen, and will be no more able to stand before their enemies, than the other wretched troops whom they have so often driven before them!
. I do not find, indeed, that he has literally cited the corrupt maxims, but he has manifestly laid down the same principle (though in different words) towards the beginning of the same chapter, where he is defining the difference between
Law
and some other things, which seem to bear relation to it; as
Counsel,
which requires
reasons
to produce an
obligation,
&c.
"But
Law,
" (says he,)
though it ought not to want its
reasons,
yet these
reasons
are not the cause why obedience is paid to it,
but the power of the Exactor;
who, when he has signified his
pleasure,
lays an
obligation
on the
Subjects
to act in conformity to his decree, though perhaps they do not so well apprehend the
reasons
of the injunction,
&c.
and, after citing a similar passage from Mr. Hobbs, he adds,
For no man can say,
sic volo, sic jubeo;
so I will, and so I command; unless,
— Stet pro
Ratione voluntas.
His
Will
is his
Reason.
"We obey Laws, therefore," (says he,)
not principally upon account of the matter of them, but upon account of
the Legislator's Will
Book 1. chap. 6. §. 1.
.
Thus the learned Civilian seems to consider
the Will and Pleasure
of a Sovereign as the life and spirit of Laws; which
notion
is highly
unreasonable
in every case but one,
viz.
when we are speaking of the Laws of that Sovereign alone, whose
Will
is the fountain of
Reason,
and whose
Pleasure
(by our own natural
Reason
we are convinced) is infinite
goodness, justice,
and
mercy,
towards all those to whom he has signified his commands; because we cannot separate the
idea
of infallible
Reason, Wisdom,
and eternal
Justice,
from any command of divine authority.
And yet this application of the Baron's doctrine, even to the
supreme
Law, is not conformable throughout to what I understand in this place of the Baron's idea of
Law;
for he assigns no other
cause why obedience is paid to it, but the
power
of
the Exactor;
whereas God's Laws have many other apparent
causes
of
obligation,
of which I have alteady mentioned the due sense we
naturally
entertain of the infinite
Wisdom
and
Truth
(as well as
the Power
) of the Divine Author, who is so far from being
an Exactor
of
Laws,
that the revelation of his will for the good government of mankind has generally been addressed to the
Senses
and
Reason
of Men, that their
Covenant
with God might be founded on
free Consent,
the highest and most obligatory
Cause of Obedience.
Now, as the Laws of God are thus tendered to us under the equitable form of a
reciprocal Covenant,
thereby binding even himself (the supreme Lord and Creator of all things) to us, his poor mortal subjects, under
conditional Promises
which cannot fail on his part! how much more ought all mere
worldly
Governors to be restrained and limited by equitable
Covenants
of
mutual obligation
between them and their Subjects, since their
equality
in nature gives the latter an undoubted Right to insist on this, the only safe mode of worldly Government?
The consideration of this point leads me to one of the principal Grounds of Baron Puffendorf's Mistake, beforementioned.
He does not seem to have been aware, that, in all societies of men governed by
Laws,
some sort of
general Covenant
must be understood to subsist between the several
Sovereigns
and their
Subjects
respectively: and, though such
Covenants
are not always
expressed,
yet, most certainly, they are always
implied;
because we must necessarily presume, that
the Good of the People
is the original intention and principal end of all
legal
human Governments, since
all Men are naturally equals,
and
a Man
who submits himself to the Sovereignty or Government of another, that he may enjoy the benefit and protection of society, does not, on that account, cease to be
a Man;
neither can the temporal Sovereign himself be released from the
natural
Tyes of
that Relation:
for, whenever he forgets that he himself is
a Man,
(of the same fallible understanding and natural infirmities with his Subjects, who are his
equals
both on their
entrance
and at their
exeunt
from the Stage of Life,) he immediately loses the best Rule for his Conduct as
a Prince,
and necessarily degenerates into
brutality;
so that, in such cases, to suppose that THE WILL
of the Prince
is to be allowed
the force of Law
is the highest absurdity! Nay, even the Baron himself has elsewhere declared, that
the word MAN, is thought to carry somewhat of
Dignity
in its sound; and we commonly
(says he)
make use of this as the last and the most prevailing argument against a rude insulter,
I am not a Beast, a Dog, but I am
A MAN
as well as yourself.
Since then
human
nature agrees
equally
to all persons, and since no one can live a sociable life with another, who does not own and respect him as
a Man;
it follows, as a command of the Law of Nature,
that
EVERY MAN
esteem and treat
ANOTHER as one who is naturally HIS EQUAL, or who is A MAN as well as he.
(Book 3. c. 2. p. 178.) It would therefore be unreasonable to conceive, that any society of MEN should voluntarily submit themselves to a temporal Sovereign, without supposing, at the same time, some
reciprocal obligation
or
duty
to subsist between them; which is nothing else but the
implication
of a mutual
Covenant:
and, indeed, the formalities of every Coronation sufficiently indicate and warrant such an
implication;
and the infringements made by Monarchs on such
implied Covenants
have, in all ages, been occasionally punished by the expulsion and destruction of the Tyrants themselves, of which most nations have, at some time or other, afforded an example.
Nevertheless, the learned Baron seems to have neglected these necessary considerations; for he asserts, that the distinction between a
Compact
or
Covenant,
and a
Law,
is obvious.
For a
Compact
(says he)
is a
Promise,
but a
Law
is a
Command.
In Compacts the form of speaking is
I will
do so and so; but in Law the form runs,
do thou so,
after an imperative manner.
Book 1. c. 6. §. 2. p. 47.
He had before been speaking of democratical Governments, and had remarked, not only that the ancients
frequently apply to Laws the name of
common Agreements,
but also, that "the Laws" (among the Grecians)
were made upon the proposal of the Magistrate, with the Knowledge, and
by the Command of the People,
and so
(as it were) "in the way of
bargain or stipulation,
" (says he,)
they gave them the name of
Covenants
and
Agreements
beforementioned:
and yet he will not allow (notwithstanding such authority) that they are properly stiled
"Covenants,"
having puzzled himself with the difference between a national
Covenant
and a
Covenant
of individuals;
for, in this last case,
(says he,)
a person that
dissents is not bound,
and the party cannot proceed without him; whereas, in the former
case,
even the
dissenting Party
is tied and obliged by the plurality of votes.
Now the learned Baron has not been aware that this very reason, which he himself has assigned, confirms the propriety of that ancient custom which he condemns, (
viz.
the applying the name of
Covenants
and
Agreements
to
Laws,
) for, he allows, that
the
dissenting Party
is tied and obliged by
the plurality of votes,
and therefore, even a whole nation, in that case, may be said to act as
an individual;
because,
that to which the greater number give consent
(as he himself remarks in the preceding paragraph)
is taken
for the
Will and Decree of all;
so that, by this means, a
whole Nation
is as capable of making a
Covenant
or
Compact
as an
Individual;
and I will only add, to what the Baron has allowed about the
binding
of
those who dissent,
that they are bound
only so far
as the imposed
Obligation
is consistent with their
superior Covenant
and duty to God, which is always to be
implied:
for even the SOVEREIGN of
the World,
THE KING OF KINGS, who alone can be said to have an
absolute Right
to govern his creature man
without a free Covenant;
(if he had been pleased so to do,) has nevertheless condescended to include all his positive
Laws
in two express
legal Covenants,
the
old
and the
new,
both of which have been from time to time confirmed and fulfilled, and still respectively subsist to this day in all points, wherein the former is not superseded, and fulfilled by the latter. It therefore ill becomes this learned Civilian to separate the idea of a
Compact
or
Covenant from Law;
and more especially when he endeavours thereby to establish
the Power of the Exactor,
the capricious
Will
of mere temporal fallible Sovereigns, which he supposes to be
Law,
independent of all
Compacts
or
Covenants
expressed or implied!
Thus I hope I have traced, to the very foundation, the Baron's error in denying the principle or maxim beforementioned, (concerning the necessity of popular
assent
in Legislation,) for, if he had not attempted to separate the idea of a
Covennant
from
Law,
he could not have overlooked the absolute
illegality
of those pretended Laws which are ordained only by the
Will
and
Power of the Exactor!
because the meanest professor of the English common Law would have told him, that every submission,
promise,
or
agreement,
that is
extorted
by
fear
and
compulsion,
is (according to the
Law of Nature
) totally
null and void in itself;
and he himself is sufficiently sensible of this in another place
Those
promises
then, or
pacts,
we take to be
invalid,
which a man is
compelled
to engage in, by the
unjust force
of the party to whom they are made; for since he, who
extorts
any thing from another by using unjust terrours, is
by the Law of Nature
bound to restore it, and must consequently make good what the other person loses by such forced bargain, the necessity of
Reparation,
in the party who offered the violence,
takes off
ALL OBLIGATION
to payment in the party who suffered it,
&c.
Book 3. c. 6. § 11. p. 225.
. And, even if an oath should be obtained to confirm the unjust
"Power of the Exactor,"
it will not increase his Right; for the Baron's own doctrine (again in another part of his book) affords a sufficient answer to annul every pretence of
Obligation
on account of
oaths extorted by unjust Fear
But what are we to think of
oaths
extorted by
unjust Fear?
Surely the Person who, by means of this
Fear,
procured a promise
upon oath,
is no less obliged to
release the promise,
thus violently obtained, than
if no oath had been
added to confirm it. Therefore there appears no reason, why
Compensation
should not be admitted in this case, in opposition to
the Claim
of the
injurious Party;
according to the rules laid down by us
(says he)
when we treated of the general subject of
Fear.
Book 4. c. 2. § 8. p. 272.
.
Thus the maxim concerning
the necessity of Assent,
for which I contend, is sufficiently proved to be a
Law of Nature
even by the learned Baron's own arguments, and I desire no better.
In consequence of the Baron's general misconception
I have spent the more time in warning my Readers against the Errors of this celebrated Civilian, because the studying of his Works (I am informed) is at this time considered as a material part of Education in our Universities; so that
the rising Generation
of the very best Families in this Kingdom are liable to imbibe (as it were with the Milk of Instruction) these poisonous Doctrines, which thereby become fixed and engrafted in their tender minds as a
foundation
for their
future political Principles!
Thus a most dangerous source of unconstitutional notions has been opened, and seems already to have flowed throughout the Kingdom; so that we need not wonder at the
modern partiality
for increasing the number as well as the powers of
Courts of Admiralty,
and other seminaries of the
Civil Law,
though the very existence of
British Liberty
depends on duly restraining and limiting the
Civil Law Courts
within those bounds of jurisdiction which have been allowed them by the ancient Constitution of this Kingdom: And therefore I hope my Readers will excuse my having exceeded the usual form of publications, in making
so long
a Preface to
so short
a Work, since it was absolutely necessary to guard against these dangerous and inveterate errors of the
Civil Law,
before I could safely proceed to my Declaration in favour of
popular Assent.
, concerning the necessity of
agreement
to make Laws valid, he has asserted also,
that neither the
divine positive Laws,
nor the
Laws of Nature,
had their rise from the
agreement of men,
&c.
Book 1. c. 6. §. 2. p. 47.
Now his observation is certainly
true
as far as it relates to the
rise
or
origin
of such Laws; for the Laws, being
divine,
must necessarily have
"had their rise"
from God; but yet this does not set aside
"the agreement of men,"
by which they have been ratified and confirmed in all ages. The Baron seems to have overlooked the information we have received from Scripture, that men inherit a
divine attribute
from their parents, I mean that
knowledge of good and evil
which they took upon themselves contrary to the
express command of God,
and thereby unhappily entailed Sin and Death on all their posterity; for that
divine knowledge
necessarily engages and includes our
agreement
or
assent
to the
"the Laws of Nature,"
whether we obey them or not, and thereby renders us
answerable
for our imperfect conduct in this world, and consequently
guilty before God!
And from hence arises the necessity of a redemption to relieve mankind from that unhappy effect of the
Original Sin;
for, as
the strength of Sin is the Law,
The sting of Death is Sin; and the
strength of Sin is the Law.
1 Cor. xv. 56.
so the guilt of every criminal action is
with justice imputed
to us, because we have
wilfully
offended against this
natural light
or
Law in our Hearts,
by which we ought to have known how
to refuse the
EVIL
and choose the
GOOD.
This knowledge of
Good and Evil
was discovered, even by the Gentiles,
to be a divine attribute
Cicero calls this natural knowledge of Good and Evil,
Law.
"Lex" (says he in his first Book De Legibus)
est
ratio summa,
insita
in natura,
quae
juhet
ea quae facienda sunt,
prohibetque
contraria;
eadem catio
cum est in hominis mente confirmata et confecta
Lex
est.
And in his third Book De Officiis, where he is speaking again of natural Reason, he calls it
a Divine Law.
—
I psa naturae ratio, quae est
Lex divina.
et Humana:
—And elsewhere he more particularly declares it to be a
Divine Attribute.
—
Recta,
numine Deorum
tracta
ratio.
And he mentions this
attribute
again in his second Book
De Natura Deorum,
where he speaks of
prudence,
or
the
choice of Good
and
rejection of Evil,
as a universal Law,
common to God and man.
Sequitur ut
eadem
sit in
his
(Diis) quae in
genere humano, ratio, eadem veritas
utrobique sit,
eademque Lex;
quae est
recti praeceptio pravique depulsio.
Ex quo intelligitur,
prudentiam
quoque, et
mentem a Diis
ad homines, pervenisse,
&c.
, though they were unacquainted, probably, with the occasion of its being engrafted in human nature. It must therefore appear, that the
agreement
or
assent
of mankind to the moral and eternal Laws of God (which the Baron and other Civilians commonly call "the
Laws of Nature
") may very fairly be presumed and admitted as a natural effect of the human understanding, whenever any of the said Laws are mentioned; for, all persons, who have any reflection, must be sensible that we stand self-condemned by
Conscience
(which is only another name for
the knowledge of Good and Evil
) whenever we offend against
the moral Laws
of God, by which our
Agreement
and
Assent
to the justice of them are sufficiently
implied
and acknowledged
I have traced this subject more at large in a separate Tract on "the
Law of Nature and Principles of Action in
MAN," intended also for the Press.
: And, with respect to what the Baron has likewise insinuated concerning the want of
human agreement
to the
"divine positive Laws,"
the direct contrary thereto is clearly demonstrated (as I have before hinted) by the remarkable examples of two incontestible legal
Covenants
between
God and Man,
the Old and New Testaments, those two original written
Charters or Grants
of PERFECT LIBERTY; the one containing the
Promises,
and the other, the
Accomplishment
of our
glorious Freedom;
which we are bound to maintain and defend to the last moment of our lives!
The mention that has already been made of these two unquestionable monuments of the
free State and Condition,
to which the Almighty has been pleased to invite his creature Man, might perhaps be sufficient for my present purpose, without descending to farther particulars; but yet, as I received extraordinary satisfaction myself in tracing minutely the manner in which the said Covenants have been tendered and ratified, I am inclined to suppose that many of my Readers will reap the same satisfaction by perusing some examples of it, because they demonstrate the
real dignity
and
natural Rights
of MAN, far beyond any thing that I could possibly have conceived before I made the said Examination with this particular view to the
Freedom
of Man; and as I have too much reason to apprehend, that many of my countrymen have overlooked or neglected these
striking Instances,
which relate to the present subject, the
Right of Assent;
I propose to add (sometime hereafter, as soon as I can possibly find leisure to revise it for the press) a
third Part
also to this
Declaration of the People's natural Right to a Share in the Legislature;
which 3d
Part
(being founded on some remarkable examples in Scripture, concerning the gracious and most liberal mode whereby the
revealed Laws, even of God himself,
have been tendered (from time to time) to the consideration and acceptance of mankind) proves by comparative demonstration, that the MAXIMS OF THE FOREIGN CIVILIANS, whereby they set up the mere WILL of fallible earthly Princes as LAW, (viz.
Quod Principi placuit habet vigorem Legis.—Stet pro ratione voluntas. &c.
substituting WILL for REASON,) are IMPIOUS AND UNJUST; since even the ALMIGHTY SOVEREIGN OF THE UNIVERSE, to whose WILL alone such deference is
justly due,
hath not so dealt with his creature Man, enforcing his
Will
for his
Reason;
but, on the contrary, hath mercifully condescended to convince us (his frail mortal subjects) that REASON is his WILL, and that he hath
limited
(if I may be allowed such an expression) even his own
infinite Power
by the eternal rules of Justice and Righteousness, which, (our own
natural Reason
teaches us,) can never fail! and therefore, as true
Freedom
consists in the
certainty
of known Laws, so the most
perfect Liberty
must necessarily subsist under the Government of the
Almighty;
who has appealed by his prophets from time to time, in the most affecting manner, to the
reason
and
senses
of mankind, that his Laws might be confirmed by a
voluntary popular Assent,
the only true foundation of all valid
Compacts;
and that the said Laws have accordingly been solemnly
ratified,
and voluntarily accepted by the people, in two
mutual Compacts,
or
Covenants,
(commonly called the Old and New Testaments,) whereby not only the People are bound
on their part,
but even the ETERNAL KING HIMSELF is
conditionally
bound also
on his part
to the performance of the
most glorious Promises!
The promises of God are made to all mankind (without exception) who receive and keep his
Covenant;
so that every true believer, be his rank in life ever so mean, is undoubtedly capable of becoming
an adopted Son
of God
— "That we might receive
the adoption of sons,
" (said the Apostle to the Galatians;)
and, because
ye are sons,
God hath sent forth the Spirit of
his Son
into your hearts, crying
Abba, Father!
Gal. iv. 5.6.
;
—"A temple of God," by the inward
dwelling
of his Holy Spirit
—
Know ye not that ye are the temple of God, and that the Spirit of God
dwelleth
in you? If any man defile the temple of God,
him shall God destroy:
for
the Temple of God
is holy, which temple
ye are.
1 Cor. iii. 16.17. See also 2 Cor. vi. 16.
:
An heir of salvation
—
That the Gentiles should be
fellow-heirs,
and of the same body, and partakers of his promise in Christ by the Gospel.
Eph. iii. 6.
;
—"
a joint heir with Christ
—
If children, then heirs; heirs of God; and JOINT HEIRS WITH CHRIST.
Romans viii. 17.
;" and all such shall
COME WITH HIM TO JUDGE THE WORLD
— For "the
saints shall judge the world.
"
1 Cor. vi. 2 .
Now as the
eternal
dignity, to which
human
nature is invited, is so
great
and
glorious,
can we suppose that God has not some regard also for the
temporal
Rights of his highly-favoured creature, Man? How, then, can any particular Man, or body of Men, presume to set up their own WILL for LAW and thereby deprive their
Brethren
of that
Right,
which of all others, is most essential to
Reasonable
beings, I mean the
Right
of
Assent?
Let those men, who thus inconsiderately venture to affront the
dignity of mankind▪
by withholding from them their
temporal
Rights, (
viz. Choice, Freewill,
and the due exercise of that
Reason
which God has given them,) beware lest they themselves should thereby forfeit their own eternal privileges!—
Know ye not that
we shall judge Angels?—how much more things that pertain to this Life?
1 Cor. vi. 3.
And he hath accordingly instituted by his Son (the
eternal Word,
in whom
dwelleth all the fulness of the
GOD HEAD
bodily,
Col. ii. 9.
) not only a
Form
for the admission of new Members or
Parties
to his free COVENANT, but also ordained a solemn rite for the
renewal and acknowledgement
of the said COVENANT from time to time at
his holy Table,
from which the Subjects of his Kingdom cannot safely abstain without seeming to deny that
allegiance
and
homage
which they indispensibly owe to their eternal Sovereign!
I had intended also to have added to this Declaration a little Tract on
the Law Eternal,
which limits Legislature, and forms the Basis of the Subjects Rights;
but the same Reason, which obliged me to postpone the
Third part
of the Declaration already mentioned, obliged me to defer this also for the present: Nevertheless, as my Declaration is founded on many of the
principles
and
maxims
of that same "
eternal Law,
" I shall beg leave to add to this Preface a short quotation from the said Tract, concerning the weight, use, and manner, of applying the
maxims,
or rules, of
eternal Reason:
which is the more necessary at this time, because I find there are great numbers of people who are so ill informed of these matters as to talk of
the
omnipotence
of
Parliament,
as if they conceived, that every thing whatsoever, that is ordained by Parliament, must be
Law,
whether it be
good
or
evil,
right or wrong!—A most pernicious and baneful Doctrine this! — A kind of
Popery in Politics,
(if I may use such an expression.) which is dangerous to the
eternal
as well as
temporal
happiness of mankind!
The welfare and happiness of Society, indeed, require, that every individual, from the highest to the lowest, should have some
general idea of Law;
but more particularly is this requifite in
England,
where the
People
enjoy (as the most valuable Heritage derived from their ancestors) the natural and most equitable
Right
of forming a part of the
legislative Power.
Law
is indeed a very comprehensive Term, which includes such a prodigious fund of abstruse learning, that a
particular and accurate knowledge of it
is scarcely to be acquired with the utmost assiduity and labour even of a man's whole life; and yet a
general
idea of
Law
(I mean that which is
immutable
and
eternal,
and which forms the
ground
and
basis
of all other
Laws
) may nevertheless be very easily
inculcated
and as easily
retained;
because the great out-lines, or rather
the Elements and first Principles, of the
LAW consist of
the most obvious and self-evident conclusions
of REASON, which are
implanted in our very
NATURE; since we inherit from our first Parents the
Knowledge of Good and Evil
Good and Evil
are not matters of Law or of Logic. They are the most, if not the only, essential circumstances of the world. They are what every thing else refers to. They stamp an eternal mark and difference on all things, which even imagination cannot cancel or erase. The enjoyment of the
one,
and the avoiding of the
other,
is the very end of our being, and likewise of all the beings which do or which even can be supposed to exist, and which have a sense and perception of them. Whatever therefore relates
to the general
GOOD
and
EVIL
of a People
is of a
public nature.
It is that circumstance which makes it so. The terms are as good as synonimous. Whatever concerns, on the contrary, only this or that individual, is of a private nature. It is confined to his or their
happiness
or
welfare;
to his or their
good
and
evil.
There is again the true and unerring criterion. These things seem clear to the greatest degree of intuitive certainty. It is strange to be forced to reason about them!
Considerations on the Measures carrying on with respect to the British Colonies in North America. 2d Edit. p. 156, 157.
The "Considerations" indeed of this sensible Author, in every other part of his work, highly merit the most serious attention of all those persons (of what party soever) who desire real information and good council concerning the present disputes with our Brethren in
America.
,
(beforementioned)
by which, every Man who is not an ideot, or madman, (that is,
every Man of
COMMON SENSE,) is
naturally
enabled to receive, discern, and approve,
the first Elements
or leading principles of LAW and REASON, when fairly proposed to him in his own language: and these same
Elements
and their
supreme
incontrovertible authority being once known and acknowledged, it is very easy, in general, for any Man of
Common Sense
to discern, by comparison, what is contrary and repugnant thereto; for THE LAW is compared to a RULE, or RIGHT LINE, —
"Lex est Linea Recti,"
— by which every thing that is
oblique, crooked, transverse,
or different from that RIGHT LINE is easily known to the meanest capacity; and therefore,
in the Law,
the RIGHT LINE
is always to be
PREFERRED,
Linea recta semper praefertur transversali.
Co. Lib. 10. b.
And from hence it arises, that the adjectives, OBLIQUE, CROOKED, TRANSVERSE,
&c.
which have no immoral signification when applied to material shapes and figures, are nevertheless ODIOUS IN LAW, which is well observed by the great Sir Edward Coke.
"Rectum"
(says he)
is a proper and significant word for the RIGHT that any hath; and WRONG, or INJURY, is in French aptly called TORT, because INJURY and WRONG is WRESTED or CROOKED, bring contrary to that which is
Right and Straight,
&c.
(
See, in the margin below, the remainder of this Remark
— "Now the LAW, that is" (says Sir Edward Coke)
LINEA RECTA
est Index sui et obliqui.
And
Briton
saith that TORT A LA LEY EST CONTRARIE, and as aptly for the cause aforesaid is INJURY, in English called WRONG. And INJURIA is derived from
in
and
jus,
because it is contrary to RIGHT, so as
a faire tort
is
facere
um,
and
Fleta
saith,
est autem
JUS PUBLICUM
et
PRIVATUM
quod ex naturalibus praeceptis aut Ge
iiu
a, a
t civilibus,
st collectum, et quod injure scripto
JUS
appellatur, id in lege
Augliae RECTUM
esse cicitur.
And in the
Mirror
and other places of the Law it is called DROIT, as DROIT DEFEND,
the Law defendeth.
1 Inst. lib. 2. c. 12. p. 158. The last two words, however, ought rather to have been rendered
the Law forbiddeth,
than
"the Law defendeth,"
because the English verb
defend
is very seldom used in the Sense which Sir Edward Coke meant to express.
.
But when great Nations become too subservient to
one,
or
a few individuals,
either by the corruption or total exclusion of
popular Representation,
in their respective Legislatures, they generally seem to lose all sense of
Right and Wrong,
all
common Honesty
in their political measures, as if they thought the command of an earthly superior would be a sufficient warrant for them to set aside THE ETERNAL LAW, and so perpetrate the most abominable actions with impunity. How shall we account for such wretched
time serving,
in men who are endued with the
natural light
of
Reason
and
Common Sense!
Perhaps it may be often attributed to
the fear
of
temporal Sufferings
and inconveniences which supercede that
Reason
and
Conscience
which should always controul the actions of
Men,
and distinguish them from
Brutes
For without these they deserve not the name of
men,
since a more evident
"mark of the Beast"
need not be sought for than the neglect of
reason
and
conscience,
or the baseness of yielding the same in an
active obedience
to the arbitrary
will
of any
man
or body of
men
whatsoever.
. They forget that whilst they yield an implicit
active
obedience to the
unlawful
commands of any
temporal Monarch
or
Legislature,
through the fear of present inconveniences or
corporal Sufferings,
they rebel against the King eternal, who has power over their
souls
as well as their
bodies
"I say unto you," (said our Lord.)
my friends, be not afraid of them that kill tho body, and, after that, have no more that they can do; but I will forewa
n you whom you shall fear: fear him, which, after he hath killed, hath power to cast into Hell; yea, I say unto you, fear him.
Luke xii. 5.6. See also Matthew x. 28.
It was on this Principle alone; this sense of
superior Duty
arising from the fear of God, that I founded my Address to the
Gentlemen of the Army,
in my little Tract on "Crown Law, respecting the due distincton between
Murder
and
Manslaughter;
but as my sentiments on that head have since been censured, I hope it will not be thought too foreign to my present topic, if I insist that no act of injustice can be more flagrant than that of denying to any particular order of Men (whether
Soldiers
or others) their
natural Right
of appealing to the
eternal Law,
and of acting agreeable to the dictates of their own
Reason
and
Conscience!
In my former Tract I remarked, that
the Law will not excuse an
unlawful Act committed by a
SOLDIER, even though he commits it by
the express Command
of the highest
military Authority
in the Kingdom,
&c.
and that
"Men of true Honour,"
who have also
a true Sense of Religion,
will not only be mindful that they are
Soldiers
and
Subjects
to an earthly KING, but that they are also
Soldiers
and
Subjects
to the KING of KINGS, whose Laws and Precepts they will, on all occasions, prefer to
every other command,
&c.
But this has been denied, it seems, by a Critic, in the Monthly Review for January, 1774, who calls it
a strange Principle!
In an Age of infidelity, indeed, it may perhaps be allowed (in one Sense) to be a
strange Principle;
but then we have the greatest Reason to lament the ignorance and depravity of those Men who esteem it so in any other sense than than of being
too often
neglected and transgressed! for I trust that no Man, who admits or believes the divine authority of the holy Scriptures, will doubt
the Truth of it.
If this
strange
PRINCIPLE had not been
equally true,
the English Nation (as I remarked in my former Tract) would long ago have been
enslaved:
and I will now add, that even the very
standing Army
itself would, by this time, have been reduced to that
abject State
of
political Slavery,
which at present disgraces the
standing Army
of
France
I am a professed enemy, indeed, to
standing Armies;
but God forbid that I should be so to the
individuals
incorporated therein, whose
true honour, natural dignity,
and
just privileges,
AS MEN, I shall over be ready to assert and vindicate; and indeed I am bound to do so by that indispensible duty which I owe to the great Author of
human Nature,
in opposition to the spiritual prince of this world, who is ever plotting to
corrupt, vilify,
and
enslave,
that noblest work of God,
Mankind!
And as this same
Love
and
Reward,
which I here profess for the INDIVIDUALS,
of the Army,
are certainly due also to the INDIVIDUALS
of every other Body of Men,
whose
general Principles
are censured in this Declaration, I must beg leave to assure my Readers, that I do not mean to oppose the
Men,
but merely their
unreasonable Principles,
without any
personal
application whatsoever; for, otherwise, the severity of my expressions (especially against the
Church of Rome
and the
French Government
) would be entirely inconsistent with that
"Good-Will to Men,"
which I am indispensibly obliged,
Upon this point I have wrote a distinct Tract, which is intended also for publication, and entitled "a Tract on the
Law of Liberty.
"
, for my own eternal Happiness, to maintain!
, and therefore those Writers, who attempt, by any fallacious sophistry, to withdraw our
British Soldiers
See Note in page x. of this
Preface.
from their obedience to the
eternal Law,
or from that allegiance which they indispensibly owe to the empire of
Reason
and
Conscience,
may justly be said to trial them more like
Brutes
than
Men!
But as all men of
Common Sense
are enabled, by that
hereditary Knowledge
beforementioned, (which has been
common
to all ranks of people ever since the fall of Man,) to distinguish
Good from Evil
This point is more particularly examined and proved in my Tract concerning,
the Law of Nature and Principles of Action in
MAN.
; so they are
equally enabled
(and indeed
entitled
) thereby to
judge
"Do ye not know that the Saints"
(which Term
is not confined to
Persons of any particular
Rank
or
Office
)
shall JUDGE THE WORLD? And, if
the World shall be judged by you,
are ye
unworthy to judge the smallest Matters?
—Know ye not that
we shall
JUDGE
Angels?
—HOW MUCH MORE THINGS THAT PERTAIN TO THIS LIFE,
1 Cor. vi. 2.3.
concerning
the Legality of all human Ordinances,
that is, to discern and distinguish
Right
from
Wrong, Equity
from
Iniquity, Droit
from
Tort, Jus
from its opposite
Injuria, &c.
This universal faculty of discernment perhaps will be better known and more readily acknowledged under the title of
Conscience;
for by that natural instinct of Conscience every individual
knows when he does amiss,
and is thereby rendered responsible before God and Man for all his actions!
And as all natural Faculties may be improved by the rudiments of Art and Science, so even the NATURAL FEELINGS OF CONSCIENCE may be rendered more
sensible, tender,
and
distinguishing,
by a proper Knowledge of
the Elements
or leading Precepts of the LAW ETERNAL.
The remainder of the Tract consists in a recital and application of such general
Maxims
as must be allowed, by all persons of
Common Sense,
to be THE NECESSARY CONCLUSIONS OF REASON, and are therefore to be esteemed LAWS OF NATURE, such as
no Power on Earth can have any authority to counter act;
and the said
general Maxims
or Rules of
Reason
and
natural Law
are accordingly by our Law writers, with great propriety, esteemed the,
first Foundation of the English Law
Primum Fundamentum Legis Angliae est LEX RATIONIS,
&c.
Quae
in hoc Regno,
sicut in omnibus aliis Regnis, ubique tenentur.
Doct. et Stud. c. 5. p. 214.
There is indeed an
inferior
order of
Maxims
(though yet of very great authority) which arise from general customs and the approved ancient determinations of the Courts of Law; and these form, what is called, THE FOURTH
foundation
of the
English Law;
though they may be ranked (as the Author of Doctor and Student informs us) with the
general ancient customs
ON THE THIRD
foundation.
—
Si quis tamen pro uno solo fundamento ea
(meaning
the general customs,
and the several
maxims
arising therefrom)
censeri judicaverit, ad placitum suum, ea
pro uno tantum fundamento
compotare potest, et tune secundum illum
quinque fundamenta
(for otherwise he reckons
six
in in all)
Legis Angliae tantum
assignari debent.
Doct. et Stud. c. 8. p. 28.
But as the true meaning of the said
inferior Maxims
is not
obvious
to people in general, like those belonging to the
first foundation,
it is happy for us that they are
not necessary
to be known by any persons who do not profess the Law; neither, indeed, can they be known without great study and labour, of which we are well apprised by the learned Author of Doctor and Student.
Haec vero
maxima
solum in Curiis Regiis, five inter Legis Angliae peritos noscuntur, nec leviter absque
magno studio
in legibus Angliae habendo cogno
ci possunt. Ideo pro separabilibus fundamentis ponuntur.
Ibid.
. It is on these incontrovertible and plain MAXIMS, these
necessary Conclusions
of REASON, that the following Declaration is founded; and therefore, as we are warned also by the revealed Laws of God
not to do
evil,
that
good
may come
The Apostle Paul has delivered a
most tremendous warning
to those wretched Politicians, who
the baneful Doctrine —
Let us do
EVIL
that
GOOD
may come;
for he immediately adds,—
WHOSE DAMNATION
(says he)
IS JUST,
Rom. iii. 8.
If those persons, who contend for the ABSOLUTE NECESSITY
of Bribery, Pensions, and other
UNDUE
means of parliamentary Influence for the carrying on public Business,
would carefully consider the said
warning,
they would have just reason to be
alarmed
on account of their own
personal
danger, for having promoted such a baneful and destructive principle!
,
every reasonable Man must necessarily admit, that
Good
and
Evil, Right
and
Wrong, Justice
and
Iniquity,
can never change their real properties through the supposed NECESSITY of any political Measures whatsoever, and that nothing but
Justice
and
Righteousness
can ever
establish the Throne
Take away the Wicked from before the King, and his
Throne
shall be
established
in Righteousness.
Prov. xxv. 5.
It is only against some particular
Opinions
and
evil Council,
and not against the
Persons
of those who may have promoted the same, that I mean to apply this excellent proverb: The real intentions of such Men, though
erroneous,
may have been
as sincere
as my own; and I therefore protest, that my earnest wish is to promote a
change
of
opinions
and
measures,
rather than of
persons,
since those, who are once convinced of their
former mistakes,
may hereafter prove more useful Servants to the public than others perhaps, whose
abilities
and
conduct
are yet untried.
of our most gracious Sovereign, for whose Peace, and real Happiness, both
temporal
and
eternal,
there is not a more sincere well-wisher amongst all his Subjects, (notwithstanding the freedom of the follow-Declaration,) than
GRANVILLE SHARP.
A DECLARATION OF THE People's Natural Right to a Share in the Legislature,
&c.
AN accurate and critical knowledge of Law (such as can only be acquired by much reading and long experience in the profession) is indeed a necessary qualification for those persons who undertake to deliver their opinions concerning the nicer and more difficult questions of jurisprudence; but, when the
Natural Rights
of any of our fellow-subjects are apparently at stake, every man has a right to judge for himself, and to declare his sentiments, as far as
plain conclusions of reason
and
common-sense
will fairly warrant; and such only are referred to in the following Declaration of the
Natural Right
of popular Representation in the legislature.
Amongst all the rights and privileges appertaining unto us,
(said that truly noble lawyer, Lord Sommers,)
Judgement of whole Kingdoms,
&c.
p. 14.
.
that of having a Share in the Legislation, and being to be governed by such laws as we ourselves shall chuse, is the most fundamental and
essential,
as well as the most
advantageous
and beneficial,
&c.
And as all British subjects, whether in Great-Britain, Ireland, or the Colonies, are
equally free
by the law of
Nature,
they certainly are
equally
entitled to the same
Natural
Rights that are
essential
for their own preservation; because this privilege of
having a share in the legislation
is not merely a
British Right,
peculiar to
this island,
but it is also a
Natural Right,
which cannot, without the most flagrant and stimulating injustice, be withdrawn from any part of the British Empire
by any worldly authority whatsoever;
because,
by the
natural Law,
whereunto he [ALMIGHTY GOD] hath made all subject,
(says the learned Hooker,)
Hooker's Ecclesiastical Polity, lib. 1, §. 10, p. 87.
the lawful power of making laws, to command whole
politic societies of men,
belongeth so properly
unto the same entire societies,
that for any Prince or Potentate, of
what kind soever
upon earth, to exercise the same of himself,
[or themselves,]
and not either by express Commission immediately and personally received from God, or else by authority derived at the first from
their consent upon whose persons they impose laws,
it is no better than mere tyranny! Laws they are not,
therefore,
which public
Approbation
hath not made so.
Agreeable to the same just principles of
natural Equity
is that maxim of the English Constitution, that
Law, to bind all, must be assented to by all;
(Principia Leget Aequit. p. 56.)
and there can be no legal appearance of
Assent
without some degree of
Representation.
It must indeed be acknowledged, that the Representation of the people of England is not so perfect as equity may seem to require, since very many individuals have no VOTE in Elections, and consequently cannot be said expressly to give
their Assent
to the laws by which they are governed: nevertheless, the whole country which they inhabit, and in which they earn their bread, and even the very houses in which they live, (whether they are housekeepers or lodgers,) are represented
I must beg leave to refer the reader also to some excellent observations on this head, in a Pamphlet published since the above was written, entitled,
An Argument in Defence of the Colonies,
p. 76, 77, and 78.
by the votes of the respective proprietors; since
every Freeholder
has a
Right
to
vote;
so that, in this one respect, the Representation is general; and, though
far from
EQUAL, would still be a sufficient check against arbitrary power, and afford sufficient security for the lives and property of those persons who
have no Vote,
if the laws against parliamentary corruption (and especially that Act of 7 and 8 Wil. III. c. 4.) were duly enforced; and also if all persons, who are entrusted with the disposal of public Money, were required to render a strict account of it, and to be severely punished whenever convicted of exerting the influence of the
public treasury
against
public liberty;
which is the most baneful treachery and dishonesty that men in office (who are the servants of
the Public,
as well as of
the King
) can possibly commit. But, notwithstanding the
Inequality
of the English
Representation,
and the various means practised to corrupt it, yet it has been the principal instrument of preserving amongst us those remains of
natural Liberty
which we still enjoy in a greater proportion than most other kingdoms, and has occasioned more examples of just retribution on
Tyrants, Traitors,
and
Court-Favourites,
in the English annals, than the history of any other nation affords; so that M. Rapin is thereby led to conclude his account of K. Richard II. (that notorious corrupter of parliaments, and enemy to the privileges of London and other corporations) with the following reflection:
That, in a government such as that of England, all the efforts that the Sovereign makes, to usurp an absolute authority, are so many steps which lead him towards the precipice.
C'est que dans un Gouvernement tel que celui d'Angletorre, tous les efforts que le Souverain fait pour usurper un pouvoir absolu sont autant de pas qui le conduisent vers le précipice.
Tome 3. Liv. x. p. 329.
It is manifest, therefore, that the constitutional government of England, even
with all its defects,
is infinitely better than any other form of government whereby
the people
are deprived of their just share in the legislature;
The celebrated Chancellor Fortescue asserts, that a limited or politic Government (like that of England) is infinitely more eligible, for the interest and satisfaction
even of the Prince himself,
than an absolute regal power: —
Non jugum sed libertas
est politicè regeve populum;
securitas
quoque maxima nedum plebi, sed ET IPSI REGI; alleviatio etiam non minima solicitudinis suae:
—
Viz.
That to rule the people by Government politic is
no Yoke,
but
Liberty,
and
great security,
not only to the subjects, but
also to the King himself;
and further, no small lightening or easement to his charge.
(De Laud. Leg. Angl. cap. 34, p. 78.)
So that those politicians, who plead the necessity of securing, at any rate, a majority in parliament, to vote implicitly for whatever the Minister proposes, do miserably betray the true interest and peace of their Sovereign! for this fixes upon the King and his Ministers (as in arbitrary governments) the blame and ignominy of every determination that happens to be wrong, which would otherwise either have been overruled by the free Council of the nation, or else must have been equally imputed to the People themselves: and yet this wretched policy has alternately been adopted by all parties, notwithstanding that it is founded (like many of Machiavel's doctrines) on that abominable antichristian principle of mere worldly-minded men, — "Let us do evil that good may come;" —
whose damnation
(says the apostle to the Romans)
is just.
Rom. iii. 8.
The
evil
of an undue parliamentary influence they endeavour to excuse by the plea of
Necessity
for the
Good
of the
State,
though it is certainly the most flagrant Violation of the fundamental principles of the
State,
and is absolutely destructive of the true interest both of the
Prince
and
People!
so that the
Inequality
of
Representation
in this island affords no just argument for setting aside the
Representation
of the people in other parts of the British Empire; because experience teaches us, that even a
defective Representation
is better than none at all; and therefore it is highly
unreasonable,
and contrary to
natural Equity,
to pretend that our brethren and fellow-subjects in the more distant parts of the British Empire ought to be deprived
entirely
of their
natural Rights
and
Liberties,
merely because our own liberties
are not entirely perfect!
or because our own Representation in the Legislature appears, in some few respects, to be defective! and it would be quite as
unreasonable
to alledge, that the principle or reason of the maxim before quoted (
viz.
that
Law, to bind all, must be assented to by all
) is unjust and inconclusive, merely because it would be very difficult to accomplish it
literally
by the express
assent
of every individual! But it is clearly sufficient that the maxim be construed to signify that
delegated assent
of the people by a majority of their
legal Representatives,
which is
constitutionally
necessary to make
all laws binding;
Nedum principis voluntate,
sed et totius regni assensu,
ipsa (
i. e.
Angliae statuta) conduntur, quo populi laesuram illa efficere nequeunt, vel non eorum commodum procurare,
&c.
—
Et si statuta haec, tanta solennitate et prudentia edita, efficaciae tantae, quantae conditorum cupiebat intentio, non esse contingant, concito reformari ipsa possunt, et NON SINE COMMUNITATIS ET PROCERUM REGNI ILLIUS ASSENSU, quali ipsa primitus emanarunt,
&c.
Chancel. Fortesc. de Laud. Leg. Ang. c. 18, p. 40. b.
and such a legal Representation of the people is therefore absolutely necessary to constitute an
effectual Legislature
for any part of the
British Empire;
for no Tax can be levyed without manifest
Robbery and Injustice
where this
legal and constitutional Representation
is wanting; because the English Law abhors the idea of taking the least property from
Freemen
without their
free consent
— "It
is iniquitous
" (
iniquum est,
says the maxim)
Iniquum est
ingenuis hominibus non esse liberam rerum suarum alienationem.
Co. Lit. 223.
And again:
Quod nostrum est, sine facto five defectu nostro, amitti seu in alium transferri non potest.
8 Co. 92.
Rerum suarum quilibet est moderator et arbiter.
Co. Lit. 223.
Regulariter non valet pactum
de re mea
non alienanda.
Co. Lit. 223.
And again:
Non potest rex subditum renitentem onerare impositionibus.
2 Inst. 61. from Fortescue, c. 9. and 18.
that
Freemen
should not have the
free
disposal of their
own effects;
— and whatever is
iniquitous
can never be made
lawful
Quicquid est contra normam recti est
injuria.
3 Buls. 313.
And
Lex
nemini operatur
iniquum
— nemini facit
injuriam.
Jenk. Cent. 22.
And therefore
Quod
contra legem fit
PRO INFECTO
habetur.
4 Co. 31.
by any authority on earth; not even by the united authority of King, Lords, and Commons; for that would be contrary to the
eternal
"Lex est ab aeterno."
Jenk. Cent. 34.
Laws of God,
which are supreme.
—
Etiam si aliquod statutum esset editum contra eas,
(leges divinas,)
nullius vigoris
in legibus Angliae
censeri debet,
&c.
Doct. et Stud. c. 6, p. 18.
In every point of view, the making laws for the subjects of any part of the British Empire,
without their participation and assent,
is INIQUITOUS, and therefore
unlawful:
for though the purport of any law, so made, be in itself perfectly
just
and
equitable,
yet it becomes otherwise
Qui aliquid statuerit
parte inaudita altera,
aequum licet dixerit,
haud aequum fecerit.
Princip. Leg. et Aequit. p. 90.
or —
"haud aequus fuerit."
6 Co. 52.
(that is,
unjust
and
iniquitous,
and therefore
unlawful
) by the want of these necessary
legal Formalities
"
Forma legalis
forma
essentialis.
"
10. Co. — 100.
And
Forma
non observata
infertur adnullatio actus.
12 Co. 7.
of
Representation
and
Assent:
for if the inhabitants of
one part
of the empire might determine a question, or enact a law, for the peculiar advantage only of that
one part,
though to the manifest detriment and injury of
another part,
without the
Representation
of the latter, the former part would be made
judges in their own cause;
a circumstance that would be literally
partial!
the very reverse of justice and
natural equity,
and which must, therefore, be esteemed
Iniquity,
even to a fundamental maxim,
Iniquum est aliquem rei sui esse judicem.
— "In propria causa nemo judex."
Principia Legis et Aequitatis, p. 41.
viz.
It is INIQUITOUS for any one to
be a Judge in his own cause.
Partiality
is, therefore, such an abomination in the eye of the law, that no Power on earth can make it LAWFUL: for
even
an Act of Parliament
(says the learned Judge Hobart, Rep. 87.)
made against NATURAL EQUITY, as to
make a man judge in his own case,
(the example, observe, is the very point in question) "
is
VOID
in itself;
" for
jura naturae sunt immutabilia,
and they are "leges legum."
Every King of England (apparently for the
same reason
) is restrained by the Law from changing or
making new Laws
without the assent or consent of his WHOLE KINGDOM in
Parliament expressed.
NEQUE Rex ibidem, per se, aut ministros suos, tallagia, subsidia, aut quaevis onera alia, imponit legiis suis, aut
leges eorum mutat, vel novas condit, sine concessione
vel
assensu totius regni sui in parliamento suo expresso, &c.
Chancell. Fortescue de Laudibus Legum Angliae, c. 36, p. 84. b.
And the
whole Kingdom,
even of
Great-Britain
itself, is only
a part
of the
British Empire;
and therefore, by a parity of reasoning, cannot
justly
or
equitably
be permitted to make laws for
the whole;
because
where the same
reason is,
the same law (or right) must prevail:
"Ubi eadem ratio, ibi idem lex,"
or
"jus."
Principia Leg. et Aequit. p. 116.
for
turpis est
pars
quae non convenit cum suo
toto;
(Plowden, 161.)
and
nihil in lege
intolerabilius
est, eandem rem
diverso jure
censeri.
4 Co. 83.
The free Representation of the
people in the legislature
is, therefore, to be esteemed, of all our Rights, the
most essential,
(as Lord Sommers has declared,) to maintain that excellent Equilibrium of power, or mixt government,
limited by law,
which our ancestors have always most zealously asserted, and transmitted to us, as our best
Birthright
and
Inheritance;
Major haereditas venit unicuique nostrum a jure et legibus quam a parentibus.
2 Inst. 56.
so that every attempt
to set the same aside
in any degree, or in any
part of the empire,
or to
corrupt it
by undue influence of places and pensions, or bribes with public money, is
Treason against the Constitution;
the highest of Treason:
The
first and highest Treason
is that which is committed
against the Constitution.
Lord Sommers's Judgement of whole Kingdoms, p. 8.
—
Est autem
injuria
omne quod non
jure
fit.
Fleta, l. 2, c. 1.
And, on the other hand,
they neither are, nor can be Traitors, who endeavour to preserve and maintain the Constitution; but they are the Traitors, who design and pursue the subversion of it; they are the Rebels, that go about to overthrow the Government of their Country; whereas such as seek to support and defend it are the
truly loyal persons,
and do act conformable to the ties and obligations of fealty.
Lord Sommers, p. 9.
— Agreeable to this doctrine was the answer of Dr. Sharp, archbishop of York, when the question was put to him,
How a person, who had sworn Allegiance to King James, could, with a good conscience, take the same oath to King William?
To which he replied,
That the Laws of the land are the only rule of our conscience in this matter, and we are no further bound to pay obedience to governors, nor to any other governors, than the Laws enjoin. If, therefore, King William, in the eye of the Law, be our King, we must in conscience pay obedience to him as such. I take this
(says he)
for a certain truth, that,
as the Law makes the King,
so the same
Law
extends, or limits, or
transfers,
our obedience and allegiance; and all Oaths imposed by the Law oblige the conscience no further than the Law meant they should oblige. Only this is always to be remembered, that whatever Obedience the Laws of the land require of us, it is to be understood with this proviso, that it be not contradictory to the Laws of God. But in that case we must obey passively, though we cannot obey actively: and with this tacit condition I do suppose all oaths of fidelity in the world are given and taken.
Life of Abp. Sharp, part 3d, pag. 24, 25, and 26. MS. wrote by his Son, for the use of his Grandchildren.
and therefore whatsoever is ordained, that can clearly be proved to be
contrary to the constitution,
must be allowed to be
fundamentally wrong,
and therefore
null
and
void
of itself; for,
sublato fundamento, cadit opus.
(Jenk. Cent. 106.)
But more particularly the Parliament has no power to give up the ancient and established Right of the
people
to be
represented
in the
legislature;
because an Act for so base a purpose would entirely subvert the principles and constitution on which the very Existence of the legislature itself, which ordained it, is formed! so that such an
unnatural Act
of the state would be parallel to the crime of
felo de se
in a private person; and, being thus contrary to
the nature
of things, can never be
rendered valid
by any Authority whatsoever.
Quae rerum naturâ prohibentur NULLA LEGE confirmata sunt.
(Finch, 74.)
And
Nihil quod est
contra rationem
est licitum.
Co. Lit. 97.
And indeed it is laid down as a maxim, by the great Lord Sommers, that
no man or society of men have
power to deliver up their preservation,
or the means of it, to the
absolute Will
of any man
(or men);
and they will have always a right to preserve what they have not power to part with.
P. 26.
And if a politic society has no just power to deliver up even
its own
preservation, it certainly has
much less right
to deliver up the necessary preservation of other societies of their brethren and friends (not represented among them)
without their Consent:
and all such attempts must necessarily be deemed
void
and ineffectual, because
there is no necessity to obey, where there is
no authority
to ordain.
Ubi non est condendi authoritas, ibi non est parendi necessitas.
Dav. 69.
And
Judicium a non suo judice datum nullius est momenti.
10 Co. 76.
For as it so clearly appears, from what has been said, that
Natural Equity
does not permit even
the inferior Property
of lands,
goods,
chattels, or money, to be alienated without the
consent
or
fault
of the proprietors, much less can it permit the alienation, annulling, or changing, of our
most valuable inheritance, the Law,
without the
due assent and consent
of
the heritors
themselves, the People at large, or their lawful Representatives in their respective assemblies or parliaments!
Nam non potest rex Angliae, ad
libitum suum, leges mutare regni,
sui. Principatu nam que nedum
regali,
sed et
politico,
ipse suo populo dominatur.
And again: "Quia nec leges, ipse" [rex]
sine
subditorum assensu mutare poterit,
nec
subjectum populum renitentem onerare impositionibus peregrinis;
quare populus ejus
libere fruetur bonis suis,
LEGIBUS,
quas cupit, regulatus,
nec per regem suum,
aut quemvis alium depilatur,
&c.
Chancel. Fortescue de Laud. Leg. Ang. c. 9, p. 26.
This is a necessary conclusion of
reason and common-sense;
drawn from the effect and force of
Natural Equity,
even in cases of much less consequence (
viz.
respecting goods and common pecuniary property); so that the distinction, which some great and able politicians have lately made, between
Taxation
and
Legislation,
(in the late disputes about taxing the Colonies,) was certainly
erroneous,
though well intended; since it plainly appears, that the right of
Legislation
is not less inseparable, by
Natural Equity,
from the people of every part of the British Empire, than the right of
granting or with-holding Taxes;
for, otherwise, the free subjects of
one part
of the empire would be liable to be most materially injured in their
greatest
and most valuable inheritance,
the Law,
by the hasty decisions of men on the
other side of
the empire, with whom probably they would be totally unacquainted, and whose interest might perhaps be as widely
different
from theirs (for any thing they could know to the contrary) as their
situation
upon the face of the globe
is distant;
that is, as widely
different as the East is from the West!
Would this be equitable? could such notorious
Injustice
Si a
jure
discedas, vagus eris, et erunt omnia omnibus incerta.
Co. Lit. 227.
And,
Rerum ordo confunditur si
unicuique jurisdictio non servetur.
(4 Inst. proem.)
For, if the fundamental Rule of the Constitution be set aside even in
one instance,
the baneful influence of such an evil precedent will soon prepare the way for the
Destruction of the whole Law;
because
uno absurdo dato, infinita sequuntur.
1 Coke, 102.
be ever made lawful? The true constitutional mode of
connecting
British Dominions, that are otherwise separated by
Nature,
is demonstrated by the established example of the Union of Great-Britain and Ireland, which by long experience has proved to be sufficiently effectual. It must be acknowledged, indeed, that an Act of Parliament was made in the 6th of K. George I. chap. 5. wherein it is laid down, that
the King and Parliament of Great-Britain
may make Laws to bind Ireland.
If the preceding arguments are not sufficient to prove in what light the said Act is to be considered, yet the present
distinct and separate Jurisdiction
of
the Irish Parliament,
the Continuation of their
ancient
and
constitutional Privileges,
notwithstanding the doctrine asserted in the said Act, and their annual Transactions, both in
Taxation
and
Legislation,
are
Facts,
which prove
(better than Arguments)
that the people of Ireland have an inherent Right to enact Laws independent of the British Parliament; otherwise the King's
Assent
would not be sufficient to render the said laws
valid and binding
without the especial approbation and consent also of the British Parliament, which indeed is
never required; so far is it from being necessary!
And, farther, the inhabitants of Great-Britain would think it extremely unreasonable and unjust, if the Parliament of Ireland should claim a Right of making Laws, with the King's assent, to
bind any part of this Island!
The argument is reciprocal: so that, if we should really detest such a measure against ourselves,
the Law of Laws
forbids us to claim the like power over any of our fellow-subjects, without their free consent.
"Non facias alteri quod tibi non vis fieri."
This is laid down as one of the most common precepts of the
Law of Reason
(Doct. and Stud. c. 2, p. 7.); and such is the immutability of the
Law of Reason,
that against it there can be no
prescription, statute,
or
custom;
and if any are made contrary thereto, they are not to be esteemed
statutes
or
customs,
but
corruptlae, i. e.
Corruptions or Depravities —
Non sunt statuta sive consuetudines, sed
corruptelae.
Doct. and Stud. c. 2, p. 5.
To the same effect is that Command of Christ himself, (recorded in Matt. vii. 12.) which our Lord declared to be
the Law and the Prophets;
viz.
Whatsoever ye would that men should do to you, do ye even so to them: for this is
THE LAW AND THE PROPHETS
: so that it may justly be intitled, the
Law of Laws;
and a statute, therefore, which is contrary thereto, is
doubly unlawful.
The separate interests of the two Kingdoms are sufficiently restrained, with respect to each other, by our excellent Constitution of State, which requires
the Assent of the People,
(that is of those which are concerned respectively,) to render any
Law valid
and
binding
upon either nation; which the foregoing arguments demonstrate: and I hope the ingenious and sensible author of the argument in defence of the Colonies (lately published) will acknowledge, that he has allowed too much, when he admits, in page 114, that
the whole kingdom of Ireland is bound by the Acts of the supreme Legislature,
&c.
which doctrine leads him afterwards to make a distinction between Taxation and Legislation.
And again, the two kingdoms are so firmly united, by the
bands of Allegiance,
to
one Head
(or Monarchy) of
limited power,
that their interests in all material
external
exigences are thereby
rendered mutual,
as well as their
internal
interest, in the maintenance of
natural
and
constitutional Liberty,
in each kingdom respectively; because one of them cannot be deprived of this, (as they are governed by
the same Head,
) without hastening the destruction of the other. And this intimate connexion of
mutual interest
in the constitution of state, and in the reciprocal enjoyment of the
same reasonable common Law,
(whereby each kingdom enjoys an Equality of privilege, and natural freedom,) renders the Union of the two kingdoms
more just and equitable,
and, consequently,
more safe and durable,
than it could possibly have been made by any other means: and the inhabitants of both islands (though sprung from a variety of jarring, jealous, and fierce nations) have, by these means acquired a certain
mutual consideration
for each other, as
fellow-subjects,
which could never have been produced by mere alliances, guarantees, or defensive leagues, nor, perhaps, by any other mode of government whatever, than that by which divine Providence has effected it;
viz.
the English Constitution: this has firmly united the
Strength
of the two Islands; whereby reciprocal succour, in time of need, is insured to both.
But, as it does not appear that the Parliament of Ireland ever acknowledged or gave any
formal Assent
to the said Act, the same must necessarily be considered as a
mere assertion
on
one part,
at the making of which, the persons most materially concerned on
the other part
were neither HEARD,
nor represented!
a defect
Qui aliquid statuerit, parte
inaudita altera,
licet aequum dixerit,
haud aequum
fecerit:
so that, if any act is ever so just in itself, yet it becomes
otherwise
(that is,
unjust and iniquitous,
as is before remarked) by the want of these legal formalities.
the most notorious that can possibly be attributed to any proceeding, either in the
enacting
or
execution of Laws!
and therefore it is to very little purpose to cite the said Act as a Precedent for taxing the American Subjects
without their Consent;
for the privileges which the Parliament of Ireland has maintained and enjoyed, both before and since that time, (clearly distinct and separate from the British Parliament,) afford a better and more authentic precedent on the
other side of the question,
(
viz.
in behalf of the people's
natural Rights,
) than the Act itself does against them: for, as the King and the People (including the Lords and Commons) of Great-Britain constitute the
sovereign Power
(under God) or Legislature of Great-Britain, so the King and the People of Ireland are the natural and constitutional Legislature or State of that kingdom, and actually exercise (both in
Legislation and Taxation
) their distinct jurisdiction, to this day; which is the best proof of their Right: and, in like manner, according to this ancient and established legal precedent, the King, together with the People of every distinct province, subject to the imperial Crown of Great-Britain, and detached (as Ireland is) from this island, ought to be and have been esteemed, from the first establishment of our colonies, the only proper and constitutional Legislature for
each province respectively;
Every establishment in the American Colonies has been settled by our ancestors as nearly as possible to the constitutional form of government in the Mother-Country; and, as the advantages of this mode have been proved by the experience of more than a century; (see an argument, just published, in defence of the exclusive Right, claimed by the Colonies, to tax themselves, p. 36, 39, 44.) it is very dangerous (now that the colonies begin to be filled with people) to vary the ancient and approved Form of the Constitution.
Periculosum est res novas et inusitatas inducere.
Co. Lit. 379.
And,
Clausulae inconsuetae semper inducunt suspicionem.
3 Co. 81.
And again,
Quae praeter consuetudinem et morem majorum fiunt neque placent, neque recta videntur.
4 Co. 78.
And lastly,
Whatsoever is against the Rule of Law is inconvenient.
Co. Lit. p. 379.
because the
Representation of the People,
in every part of the British Empire, is absolutely necessary to constitute an
effectual Legislature,
according to the fundamental principles of the English Constitution; for none of them,
separately,
can be esteemed a
competent Legislature
to judge of the other's
Rights,
without the highest injustice and
iniquity;
which is before demonstrated by some of the first maxims or principles of
Reason.
And yet, howsoever distinct these several parts or provinces may seem, in point of situation, as well as in the exercise of a separate legislative power for each, (which constitutional Right they have enjoyed beyond the memory of man,) they are nevertheless firmly united by the circle of the British Diadem, so as to form
one vast Empire,
which will never be divided, if the safe and honest policy be adopted, of maintaining the
British Constitution
inviolate, in all parts of the Empire: for it is a system so
natural,
so
beneficial,
and so
engaging,
to the generality of mankind, that by the same means we might hold
the Empire of the World,
were the laws of natural Equity, Justice, and Liberty, to be strictly observed, and the
abomination
of
domestic
The toleration of domestic Slavery in the Colonies greatly weakens the claim or
natural Right
of our American Brethren to Liberty. Let them put away
the accursed thing
(that horrid
Oppression
) from among them, before they presume to implore the interposition of
divine Justice;
for, whilst they retain their
brethren of the world
in the most shameful involuntary servitude, it is profane in them to look up to the
merciful
Lord of all, and call him
Father!
as well as political Slavery abolished!
On the other hand, it is not only
Treason against the Constitution
to attempt to deprive any free British Subjects of their
natural Right
to a Share in the
Legislature,
To extend the Governor's Right to command, and Subject's Duty to obey, beyond the Laws of one's country,
(said that learned lawyer, Lord Sommers,)
is TREASON against the Constitution, and Treachery to the society whereof we are members.
Judgement of whole Kingdoms,
&c.
p. 6.
but it is equally derogatory and injurious to the Authority of the Crown;
Nor is it merely the first and highest
Treason
in
itself,
that a member of a political society is capable of committing,
to go about to subvert the Constitution;
but it is also the
greatest Treason
he can perpetrate against the
Person, Crown, and Dignity of the King;
for such an endeavour both annuls and vacates all his title to superiority over those above whom he was exalted from the common level by
virtue of the Constitution,
and deprives him of all rightful and legal claim of rectoral authority over the society, by destroying the alone foundation upon which it was erected, and by which he became vested with it,
&c.
Ibid. p. 9. & 10.
because a King of England has no
legal Authority
to govern by any other mode than that
limited
government called the
English Constitution,
which he is sworn to maintain; for such is the frailty of human nature, that no man or body of men whatever is to be entrusted with the administration of government, unless they are
thus limited by Law,
and by a due Representation of the people at large, subject to a frequent appeal,
by Election,
to the whole body of constituents: for it is a maxim,
that he who is allowed
more Power, by Law,
than is fit, (or equitable,) the same will still desire more Power than is already
lawful:
Cui plus licet quam
par
est,
plus vult
quam licet.
2 Inst. 465.
so that no Power on earth is tolerable without a
just limitation;
and Law, which ought to be supreme,
Firmior et potentior est
operatio legis
quam dispositio hominis.
Co. Lit. 102.
cannot subsist where
Will
and
Pleasure
are absolute, whether it be the
Will
of
one,
of a
few,
or of
many.
"Whosoever" (says Aristotle)
is governed by a man
without Law,
is governed by a
man and by a beast.
Lord Sommers, N. 11.
Ipse autem rex, non debet esse sub homine, sed
sub Deo, et sub lege; quia lex facit regem.
Attribuat igitur rex
legi
quod
lex
attribuit ei, videlicet
dominationem et potestatem: non est enim rex ubi dominatur voluntas, et non lex.
Bracton, lib. 1, c. 8.
—
Rex autem habet superiorem, Deum. S. —
Item legem, per quam factus est rex.
— Item curiam suam, &c. — Et ideo si rex fuerit
sine fraeno,
i. e.
sine lege,
debent ei fraenum ponere,
&c.
Bract. lib. 2, c. 21, p. 34
A King, therefore, who presumes to act without the constitutional
limitation,
destroys the foundation of his
own authority;
for the most respectable and most ancient writer on the English Constitution assures us, that
there is no King
where
Will rules,
(or is
obsolute,
) "and not
Law.
"
—
Non est enim rex
ubi
dominatur voluntas,
et
non lex.
Bract. lib. 1, c. 8, p. 5, b.
The same doctrine is expressed still more clearly in the old Year Books,
—I
a
ley
est le plus haute inhéritance que le roy ad: car par la
ley
il même et touts ses sujets sont rulés, et
si le ley ne fuit,
NUL ROI,
et nul inhéritance, sera.
19 Hen. VI. 63.
that,
if there was
no Law,
there would be
no King,
and no inheritance.
For these plain reasons, whenever the English Government ceases
to be limited,
in any part of the British Dominions, it ceases to be
lawful!
And therefore the fatal consequences of proceeding to enforce the execution of any Acts, or Resolutions, for the establishing such
unlimited and unlawful
Ubi non est
condendi authoritas,
ibi non est parendi necessitas.
Dav. 69. Prin. Leg. et Aequit. p. 117.
Government, is more easily conceived than expressed; because
the condition of all subjects would be alike, whether under
absolute
or
limited
Government, if it were not
lawful
Insuper lex rationis permittit plurima fieri, ut scilicet quod
licitum
est
vim vi
repellere, et quod fas unicuique se tueri et
rem suam defendere contra vim injustam.
Doct. et Stud. c. 2, p. 8. — See also Bracton, lib. 4, c. 4, p. 162. b.
to maintain and preserve those limitations, since
Will
and
Pleasure,
and not Law, would be, alike in both, the
measure of obedience;
for, to have liberties and privileges, unless they may be defended, and to have
none at all,
is the same thing as to be governed by
mere Will and Pleasure
(Lord Sommers, p. 24.)
; and
misera est
servitus
ubi jus est vagum aut incertum.
Old-Jewry, London,
June 25, 1774.
GRANVILLE SHARP.
(COPY.) EXTRACT of a LETTER on the foregoing Subject, to a Friend in AMERICA, dated February 21, 1774.
I have also sent you a book lately published by Dr. —, respecting the government of the British Colonies.
The reason of my sending the latter is not because I approve of it, or have the least connexion with the author; but, on the contrary, that you and your friends in America may be aware of the unconstitutional doctrines which are thereby propagated amongst us. I have not, indeed, had opportunity to peruse it regularly; neither do I now think it necessary to do so; for I was lucky enough, when I first took it up, to turn over a few pages in the fourth part, containing five propositions upon the point in question, whereby the author's sentiments and intentions may be sufficiently known without descending to his arguments upon them; for
not one
of them (not even the 5th and last, which he himself prefers) can possibly be reconciled either to
Law, Equity,
or
sound Politicks;
so that if the doctor, with the
same neglect of Law and constitutional Principles,
had multiplied his propositions to the number of
an hundred times five,
he would not have been able to lay down a plan or mode of government tolerably suitable to the case before him; because, in this, as in many other things, there is but,
one right,
though very many
wrong
methods of proceeding; and the doctor has unfortunately forgot to state the
only right proposition
upon the subject in question, that can be admitted consistently with the necessary principles abovementioned of
Law, Equity, and sound Politicks;
viz. to
do justice
to our brethren of America; that is, to govern them according to the established Principles of the English Constitution, and known Laws of the Land, and candidly to acknowledge their
unalienable
right to the same happy privileges by which the liberties of the mother-country have hitherto been maintained; the most essential of which is the privilege of paying no other taxes than what are voluntarily granted by
the people
or their
legal representatives
in general councils or parliaments.
Dr.—is inexcusable for having omitted this
sixth Proposition!
for he cannot be ignorant of the legal and
established mode of extending the English Constitution to countries detached from this island,
because we have a standing precedent and example (which has long subsisted, and has been universally allowed) in the present government of
Ireland;
for that island, though unjustly
conquered
by our ancestors, enjoys (or, at least, is allowed to be entitled to) the same constitutional privileges as the seat of empire, England itself. The respective Parliaments of the two islands are
entirely independent of each other;
they
separately
grant, from time to time, the necessary supplies to the state; and no man may presume to deny their right of enquiring respectively into the application of them. But, notwithstanding this distinct oeconomy, and the entire independency of the natives or subjects, with respect to each other, yet they are firmly united, by the
bands of allegiance,
to
one
Head (or Monarchy) of
limited power,
whereby they enjoy the privileges of the
same reasonable common Law,
and the
same excellent Constitution
of state: so that the equality of
privilege
and
condition
renders the
Union
more just and equitable, and consequently more safe and durable, than it could possibly have been made by any other means.
And the inhabitants of both islands (though sprung from a variety of jarring, jealous, and fierce nations) have, by this means, acquired a certain
mutual consideration
for each other, as
fellow-subjects,
which could never have been produced by mere alliances, guarantees, or defensive leagues, nor perhaps by any other mode of government whatever, than that by which Divine Providence has effected it;
viz.
the English Constitution.
This has firmly united the
strength
of the two islands; whereby reciprocal succour in time of need is insured to both. This
established example
of the true constitutional mode of connecting British Dominions, that are otherwise separated by Nature, will enable us, by comparison, to discern the illegality and injustice of Dr.—'s five Propositions. The stately vine of British Dominion (if I may use that scriptural type) has providentially extended its luxuriant branches to the most distant parts of the earth! and will continue to spread and increase as long as
Justice
and
the Laws of Liberty
are duly maintained by those who are entrusted with the administration of government (unless the wickedness of
individuals,
manifested by the exercise of
domestic Slavery
and
Oppression
in the Colonies, and of
political Corruption and Venality
at home, with the
growing vices
attending
both
respectively, should unhappily draw down God's vengeance upon us! and perhaps our mutual punishment is at this time impending in the present differences and ignorance of the English Constitution): But how will the trunk or stock of the British Vine appear, if we should entirely separate or lop off the branches?—The American Branches are already
detached,
indeed, (in point of distance,) and widely separated from the Trunk, by a vast Ocean, but the imperial Crown of Great-Britain is, nevertheless, a sufficient band of union or connexion between them, it being the legal ensign of authority for the maintenance and execution of the same just laws, the influence of which may, by a due constitutional exertion of the regal Power, be circulated, like wholesome sap, from the root to the most distant branches.
But if (according to Dr.—'s 5th proposition) the flourishing branches of North-America were to be
entirely separated
from the trunk, and excluded from the
circle
of the royal
diadem,
the effect would be
reciprocally humiliating;
for the act of separation would, at the same time, unavoidably
contract
the
imperial Authority of the British Empire
to the narrow limits of British and Irish ground, except a few small Sugar-Islands, peopled chiefly by the most miserable of slaves: so that both
Great-Britain
and her
Colonies
would reciprocally lose
importance, strength,
and
security,
by the disunion. A Guarantee of independence against all foreign invaders, as proposed by Dr.—, would fall far short of the effect which we enjoy by the present constitution, because it would not, like the latter, produce that
mutual consideration and protection
which are due from
fellow-subjects.
Our connexion, according to the doctor's measure, would be upon no better footing than Alliances of the same kind with detached foreign Powers, which (as experience teaches us) subsist no longer than the
private interest
or
separate
views of the contracting parties.
If all these points are duly considered, the very proposing so pernicious a measure must appear highly criminal, if not treasonable! especially as the author has been pleased to insinuate, that there is no alternative!—
If we neither can govern the Americans,
(says he,)
nor be governed by them; if we can neither unite with them, nor ought to subdue them; what remains
(says he)
but to part with them on as friendly terms as we can?
But is it not Treason against the Crown to insinuate that the Americans cannot be
governed,
as well as Treason against the People at large, to say that we cannot
unite
with our American Brethren, when there is a constitutional mode both of
Government
and
Union,
established by law, and an unquestionable precedent, the observance of which would undoubtedly satisfy every honest American Subject?
The advocates for the jurisdiction of the British
Parliament in America,
like all promoters of bad measures, will not fail to represent those, that oppose them, as licentious and disaffected persons; and therefore, as it is highly necessary for the general
welfare
and subsistence of the British Empire, both in Europe, Asia, and America, (upon the principles already explained,) that we should strictly maintain our
Loyalty to the Crown,
at the same time that we steadily assert our legal and constitutional Rights,—I think we ought to lose no proper opportunity of expressing our
personal attachment
to the
King and the royal Family,
who, in themselves, indeed are truly amiable, and worthy of esteem; but it is very difficult, in this world, to guard against misrepresentation and bad advice; however, I trust that a steady perseverance in
Love and Duty
will be the true means of your prevailing in the end, as it will prove that your opposition is not occasioned either by disaffection or disloyalty, but is
truly legal
and
constitutional.
I am, with great esteem, Dear Sir, Your obliged humble Servant,
GRANVILLE SHARP.
P. S.
I am entirely unacquainted, I profess, with the nature of the Crown Charters or Grants to the several American Proprietors; and therefore (left these should contain any condition or acknowledgement, on the part of the landholders, which may seem to militate against the foregoing observations) I must beg leave to add, that the legislature hath agreed and laid down, as a rule, that all the ancient arbitrary and military Tenures of land, and even
Socage
in capite
of the King, and the
consequents upon the same,
have been much more burthensome,
grievous, and prejudicial, to the Kingdom, than they have been beneficial to the King
(see preamble to the Act of 12th of Charles II. chap. 24, for taking away
the Court of Wards and Liveries and Tenures in capite, and by Knights Service and Purveyance,
&c.); and for this just reason, founded on
"former "experience,
Whereas it hath been found,
by former experience,
that the Courts of Wards and Liveries, and Tenures by Knights-Service, either of the King or others, or by Knights-Service
in capite,
or Soccage
in capite
of the King, and the consequents upon the same, have been much more burthensome, grievous, and prejudicial,
&c.
the Crown hath ever since been restrained by the Law from
granting "any Manors,
Lands,
&c.
" upon such, or indeed
any other conditions whatsoever,
than
"free and common Socage only."
See 2d and 4th Sections of the said Act.
I have heard, indeed, that a certain island in the northern part of America was granted to a noble lord, with a particular jurisdiction upon the ancient feudal plan, whereby he is said to have been established as
Lord Paramount,
with a peculiar unconstitutional authority: but this, I am willing to presume, is merely report; and, even if it were true, the Grant would be innocent enough in its effects, provided the people be instructed in their Rights; because all such undue conditions, as I have mentioned, are absolutely
null and void
in themselves; for the law obliges us to construe them as if they had no other meaning than a
legal Grant
of lands
in free and common socage.
See the 4th section of the said Act.
And be it further enacted, by the authority aforesaid, that
all Tenures
(there is none excepted)
hereafter to be created by the King's Majesty, his heirs, or successors, upon
any
Gifts or Grants of
any
Manors, Lands, Tenements, or Hereditaments, of
any
Estate of inheritance at the common law, shall be in
free and common Socage,
and
shall be adjudged
to be in
free and common Socage onely,
and not by Knights Service,
&c.
SOLI DEO GLORIA ET GRATIA.
A DECLARATION OF THE People's Natural Right to a Share in the Legislature,
&c.
PART II.
Qui non libere veritatem pronunciat, proditor est veritatis.
4 Inst. Epil.
PART II. CONTAINING A DECLARATION Or DEFENCE of the same DOCTRINE, (
Viz.
The Natural Right of the People to a Share in the Legislature,) When applied particularly TO THE
PEOPLE of IRELAND;
In ANSWER to the ASSERTIONS of several EMINENT WRITERS on that Point, which have hitherto been permitted to pass without due ANIMADVERSION.
WHEN the First Part of this Declaration was sent to the Press, I was not aware that there had been any controversy before the sixth of King
George
I. concerning the freedom of our fellow subjects in
Ireland,
or that any Englishman, acquainted with the principles of our excellent constitution of State, had ever, before that time, presumed to advance any Doctrine, which might tend to deprive our Irish Brethren of their
natural freedom,
and of the inestimable benefits of that happy legal constitution, which British Subjects in general are commonly supposed to inherit by BIRTHRIGHT!
But I have since had the mortification to find, that such great Authorities as Lord Coke, Judge Jenkins, Lord Chief Justice Vaughan, Judge Blackstone, the Honourable Mr. Justice Barrington,
&c.
might be quoted in favour of a contrary Doctrine! And as I have mentioned the Union between Great-Britain and Ireland in the First Part of this Declaration,
&c.
as an Example of
the true constitutional mode of connecting British Dominions that are otherwise separated by nature,
I thought myself therefore, obliged to search and examine the grounds upon which these grew and learned men have founded their opinions, that if they should have
Truth
on their side, they might have the credit of it; but if not, that the
Truth
of this important question, when plainly and impartially stated, might prevent for the future any such undue pretensions on the one hand, and jealousies on the other, as have too frequently occasioned misunderstandings and controversies between the Subjects of the two Kingdoms.
Lord Hussey, Chief Justice in the Reign of King
Henry
VII. seems to have been the First who ventured publicly to assert, that
Statutes made in England shall bind the Subject of Ireland
Hussey, Chief Justice, disoit que les Statuts falts on Angleterre liera ceux de Ireland, que ne suit moult.
d
s autres Justices, nient obstant que a
c
n de oux
furent en coutrarid opinione.
le derrein term en son absence.
Year Book, 1 Hen. VII. p. 3.
:
And though the Doctrine is unconstitutional and dangerous, if admitted in a general unlimited sense
Which is clearly proved by Sir Richard Bolton, Chancellor of Ireland, in the Declaration,
&c.
printed in Harris's Hibernica, p. 29.—
As to the Opinion of Hussy, Chief Justice, in first of Hen. 7. fol. 3.
that the Statutes made in England shall bind them of Ireland,
this Opinion, as it is put by him generally,
cannot be law;
for Brooke, in abridging
that case in title Parliament,
Sect. 19. saith, that that
opinion was denied to be law, the last term before;
and added further,
tamen nota, that Ireland is a Realm of itself, and hath a Parliament in itself, implying thereby, that Ireland could not be bound but by a Parliament of Ireland.
And according to that, is the opinion of the Judges in 20th Hen. VI. fol. 8. in John Pilkington's case; and in 2d Rich. III. fol. II. in the Merchants of Waterford's case, before remembered; and likewise contrary to the opinion of Hussy, are the judgements of eight several Parliaments in Ireland before the Statute of 10th of Hen. VII. viz. 13th of Edw. II. 19th of Edw. II. 18th of Hen. VI. 29th of Hen. VI. 32d Hen. VI. 37th Hen. VI. and 8th Edw. IV. And since the Statute 10th Hen. VII. of five Parliaments; viz. 28th of Hen. VIII. 33d of Hen. VIII. 28th of Eliz. 11th of Jam. and 10th Car. besides the Statute of 10th of Hen. VII. itself.
; yet, in justice to Judge Hussey, it must be allowed, that his Declaration was certainly right with respect to the particular case then before him, which related to the
exportation of goods from Waterford:
for, the Irish subjects themselves do not deny the jurisdiction of Great-Britain upon the high Seas, nor in matters of external
This binding in external transactions, seems to be allowed (though unwillingly) by Mr. Molly neux, (a zealous asserter of the liberties of Ireland in the Reign of King William.) "They seem" (says he, speaking of English Acts of Parliament)
at the utmost reach, to extend the jurisdiction of the English Parliament over the subjects of Ireland, only
in relation to their action, beyond seas, out of the Realm of Ireland, as they are the King of England's subjects,
&c.
p. 71.
commerce, though the English power, even in that respect, may sometimes perhaps have been extended farther than reason and equity can fairly warrant. But before Lord Chief Justice Hussy delivered his opinion, this proper distinction, concerning the English Acts binding the Irish
in external Transactions,
had been made (in his absence) by the other Judges in a preceding term
"All the Judges" (but we must except Hussy)
were assembled in the Exchequer Chamber, and there, with respect to the first question, it was said, that the lands of Ireland have a Parliament among themselves, and all kinds of Courts as in England; and, by the same Parliament, they make laws and change laws, and are not bound by Statutes (made) in England, because they have not here Knights of Parliament; but this is understood of lands and things only to be effected in those lands, but their persons are subject to the King, and, as subjects, they are bound to any thing
out of that land,
that is done out of that land contrary to Statute, like as the inhabitants of Calais, Gascoigne, Guicone,
&c.
while they were subjects of the King, and in like manner are obedient under the Admiral of England concerning any thing done upon the High-Seas, and also a writ of error of judgement given in Ireland (is cognizable) in the King's Bench here in England.
Anno secundo Rich. III. p. 12.
Omnes Justiciarii
(but we must except Hussy)
associati fuerunt in Camera Scaccarii, et ibi quoad primam questionem dicebatur, quod terrae Hiberniae inter se habent Parliamentum et omnimodo Curias prout in Anglia, et per idem Parliamentum faciunt leges et mutant leges, et non
obligantur per statuta in Anglia, qui non hic babent Milites Parliamenti;
sed hoc intelligitur de terris et rebus in terris ill' tantum efficiendo, sed personae illae sunt subjectae Regis, et
tanquam subjecti erunt obligati
ad aliquam rem extra terram
illam faciendam contra Statutum,
sicut habitantes in Calesia, Gascoignie, Guien,
&c.
dum fuerunt subjecti; et similiter obedientes erunt sub Admirall' Angliae, de re facta super altum mare: et similiter breve de errore de judicio reddito in Hibernia in Banco Regio hic in Anglia,
&c.
; which accounts for the remark of the Reporter, that this opinion of Chief Justice Hussy
was not much denied by the other Judges, though some of them were of a contrary opinion the last term in his absence.
But, by the expression, that
it was not much denied,
it is apparent, that the other Judges did not receive the doctrine of Chief Justice Hussy, entirely and absolutely, without
some demur;
which could only consist in their adding that
due distinction
before-mentioned: for it plainly appears (notwithstanding the assertion of the Reporter) that they were not, really, of
a contrary opinion
in the former term, with respect to the case before them; which related to an
external transaction,
the same that, in their former opinion, they declared to be subject to the controul of England; and, therefore, there was no reason why they should
much deny
the opinion of Chief Justice Hussy, since the particular case before them did not require it.
But the like excuse cannot be made for Sir Edward Coke, who, in Calvin's case, seems to have adopted the opinion of Chief Justice Hussy, and yet has not considered the nature of the case on which the same was delivered, having declared a similar opinion in an indiscriminate general sense
That albeit Ireland was a distinct Dominion, yet the title thereof being by conquest, the same, by judgement of law, might by express words be bound by Act of Parliament of England.
Calvin's Case, 7th Rep. p. 444.
, without paying the least regard to that
just distinction
between
the external
and
internal
Government of Ireland, which the other Judges had before so clearly laid down and confirmed by an unanswerable reason
See the former note in p. 56.
Quia non hic habent Milites Parliamenti.
why the Irish should not be bound in the latter by any other laws than those to which their own Parliament had assented, viz.
Quia non hic habent Milites Parliamenti:
which Doctrine was agreeable also to what had long before been declared by that celebrated constitutional Lawyer, the great Judge Fortescue on Pilkington's
—et auxi la terre de Ireland est severe del' Roiaume d' Angleterre: car si un disme ou quinzime soit grante icy, ceo
ne liera ceux d' Ireland
mes
que
le Roy manderoit
m cel' estat
(for estatute)
en Ireland soubz son Grand Seel, sinon que ils veul' en leur Parliament ceo approver mes s'ils veul allower ceo, donq sera tenu la et ils seront liès par icel'.
Year Book 19th Hen. VI. p. 8.
case, in the 19th of Hen. VI. which was readily admitted at the same time by Judge Portington, and (for any thing that appears to the contrary) agreeable also to the opinion of all the other Judges that were then present; for, Sir Richard Bolton remarks, that this was not
denied by Markham, Yelverton, and Ascough
The case is stated by Sir Richard Bolton, Chancellor of Ireland, in his Declaration, &c. printed in Harris's Hibernica, p. 15. as follows:
That one John Pilkington brought a scire facias against one A. to shew cause, why Letters Patents, whereby the King had granted an office in Ireland to the said A. should not be repealed, whereas, the said John Pilkington had the same Office granted him by former Letters Patents granted by the same King, to occupy to himself or his Deputy. Whereupon the said A. was warned and appeared, and said, 'That the
land of Ireland, time beyond the memory of man, hath been a land separated and severed from the Realm of England,
and ruled and
governed by the customs and laws of the same land of Ireland.
And that the Lords of the same land, which are of the King's Council, have used, from time to time in the
absence of the King, to elect a Justice,
which Justice, so elected, hath power to pardon and punish all felonies, trespasses,
&c. and to assemble a Parliament;
and by the advice of the Lords and
Commonalty to make Statutes; and he alledgeth further,
that a Parliament was assembled, and that it was ordained by the said Parliament, that every man who had any office within the said land, before a certain day,
and he puts the day in certain.
shall occupy the said Office by himself, or otherwise that he shall forfeit his office.
And sheweth further,
how the said John Pilkington occupied the said office by a deputy, and that, insomuch as he came not in proper person to reside upon his office before the day, that his office was void, and that the King, by his Letters Patents, granted the said office, so become void, to the said A. and prayed that the said Letters Patents should be effectual, and not repealed.' And upon the plea the said John Pilkington demurred in law. In the argument of which case, it was debated by the Judges, Yelverton, Fortescue, Portington, Markham, and Ascough, whether the said prescription were good, or void in law; Yelverton and Portington held the prescription void;
but Fortesine, Markham, and Ascough,
held the prescription good, and that the
Letters Patents made to A. were good and effectual,
and ought not to be repeated: and in the argument of this case it was agreed, by Fortescue and Portington,
that if a tenth or fifteenth be granted by Parliament in England,
that shall not
bind them in Ireland;
although the King send the same
Statute into Ireland under his great seal: except they in Ireland will in their Parliament approve it;
but if they will
approve it, then it shall bind in Ireland.
And Portington said, that if a tenth be granted in the Parliament of England,
that shall not bind in Ireland,
because they have not any
commandment by writ to come to our Parliament;
and this was not denied by Markham, Yelverton, or Ascough. Upon this case these points following are to be observed, First, that the Lords of the Council of Ireland had then power, in the
absence of the King, and vacancy of a Lieutenant or Deputy, to elect a Justice.
and that is plainly proved by the preamble of the Statutes of 33d of Hen. VIII. chap. 2. in Ireland. The words are these; 'For as much as continually sithens the conquest of this Realm of Ireland, it hath been used in this same Realm of Ireland, that at every such time, as it hath chaunced the same Realm to be destitute of a Lieutenant, Deputy, Justice, or other head Governour, by death, surrender, or departure out of the said Realm, or otherwise, the Council of this Realm of Ireland, for the time being have used, by the laws and usages of the same, to assemble themselves
together to choose and elect a Justice, to be Ruler and Governor of this Realm,
till the King's Highness had deputed and ordained a Lieutenant, Deputy, or other Governor for the same Realm; which Justice, so being elected, was, and hath been, always by the ancient laws and customs of this said Realm of Ireland, authorised to do and exercise the said roume of Deputy there, for the good rule and governance, and leading of the King's subjects within the said Realm of Ireland, and in ministration of Justice, with divers other authorities, pre-eminences, and jurisdictions there; which usage, election, and authority of the said Justice, hath been many times ratified and confirmed by divers Statutes in this Realm provided and made. But this order of election of a Justice is now, by the laid Statute of 33d of Hen. VIII. altered; as by the said Statute more at large may appear.
Sir John Fortescue had declared, that,
if a tenth or fifteenth were granted here, this should not bind those of Ireland, even though the King should send the same Statute into Ireland under his great seal, except they will in their Parliament approve it; but, if they will allow it,
(i. e.)
then it shall be held there, and they shall be bound by it.
And to this point Judge Portington expressly declared his assent
— et auxi quant a ceo que Fortescue ad dit, que si un Disme soit grante en le Parliament icy,
ceo ne liera ceux
d' Ireland;
Jeo veux bien pur ceo que ils n'ont commandment
ove nous per breve de venir al' Parliament.
Year Book, 19th Hen. VI. p. 8.
, "Jeo veux bien" (says he) and then assigns the incontestible reason,
"pur ceo,"
because they (the Irish subjects)
have no summons with us to come to Parliament.
But Lord Coke has unfortunately neglected to weigh the importance of this just
Reason,
and consequently has been led to misconstrue the doctrine to which it has at different times been applied by the Judges; for, in Calvin's Case, (7th Rep. p. 447.) he cites the opinion of the Judges in 2d Rich. III. beforementioned,
viz.
That Ireland hath a Parliament, and they make laws,
and our Statutes do not bind them:
and he cites also their reason,
viz.
because they do not send Knights to
(our)
Parliament;
but he adds, in a parenthesis, that
this is to be understood,
unless they be especially named
And 2d Rich. III. 12.
(says he)
Hibernia habet Parliamentum, et faciunt leges, et nostra Statuta non ligant eos, quia non mittunt Milites ad Parliamentum,
(which is to be understood unless they be especially named)
sed personae eorum sunt subjecti Regis sicut habitantes in Calesia, Gasconia, et Guyan.
&c.
Calvin's Case, 7 Rep. p. 447.
. Thus he is so far from perceiving the weight of
the Reason
assigned by the former Judges, that he has ventured to set it aside (as if it had no meaning at all) by the insertion of an arbitrary parenthesis in the middle of the sentence, without assigning a stronger
Reason,
or even any
Reason
at all for his authority; and therefore, we are certainly bound to prefer the Declaration of the other Judges, who founded their opinion on
a clear legal Reason,
that has never yet been disproved; for
the REASON
of the Law is the Life
of the Law
"Ratio Legis est anima Legis."
Jenk. Cent. p. 45.
.
The
naming
or
not naming
Ireland, in our English Acts, cannot in the least affect the argument of the former Judges; for, if it holds good to secure the Irish subjects from being bound,
when not "especially named,"
(which is allowed even by Sir Edward Coke himself,) it certainly is equally effectual
when they are named;
or rather, (I ought to say,) the Reason is much more forcible in the latter case, which apparently enhances the propriety and importance of it; because, when the business relating to Ireland is debated, it is manifest that the Irish subjects stand most in need of a
due representation,
which cannot therefore be denied them at such a time, without the most flagrant violation of Justice and natunal Equity!
But, lest any of my Readers should still retain any doubt concerning the groundless Doctrine broached by Sir Edward Coke, that English Statutes bind in Ireland when
"especially named,"
I have yet another Authority to add, which must needs turn the scale, being no less than the testimony even of Sir Edward Coke himself upon this very point! Let his own words judge him.
He informs us, in his 4th Inst. cap. 76. p. 350. that
sometimes the King of England called his Nobles of Ireland to
come to his Parliament of England,
&c. and, after reciting the form of the Writ used on such occasions
10 Octobris Rex affectans pacificum Statum terrae Hiberniae, mandavit Richardo de Burgo Com. Ulton. et aliis nobilibus terrae predictae, quod sint ad Parliamentum suum quod summoneri fecit apud Westm. in octabus sancti Hillarii proxad tractand. ibid. cum proceribus, &c. regni sui super Statu terrae praedictae.
Rot. Parl. 8. E. 2. m. 31.
, he adds—"an excellent President"—(says he)
to be followed
whensoever any, Act of Parliament shall be made in England concerning the Statute of Ireland,
&c.
But, if this be
"an excellent President,"
the same spirit of justice, which inclines us to approve it as such, must needs force us to condemn
the opposite notion,
concerning mere English Statutes
hinding Ireland,
when
"especially named:"
and consequently it must appear, that Lord Coke was not sufficiently upon his guard when he advanced this unjust Doctrine. And yet, alas! he has repeated the same in this very page, immediately after the Information, before quoted, concerning the Nobles of Ireland being summoned to the Parliament of England; for he adds,—"and
by special words
" (says he)
the Parliament of England
may bind the Subjects of Ireland;
&c.
but, it lucklly happens, that he is less reserved in this place than in the other passage already is asserted; for here he has attempted to justify his opinion by an example, which, out of respect to so great an author, we may, of course, presume to be the very best that could have been produced for that purpose; especially since he mentions it as
one example for many;
and yet, happily for the truth, this
"one example for many"
proves nothing so much (when duly considered) as the direct contrary to his assertion, about
binding Ireland
by
special words,
&c. for it amounts to an
implied acknowledgment, upon public record,
of the injustice of pretending to
"bind the Subjects of Ireland"
without their express consent; being, in reality, a copy of the King's Writ (beforementioned) to summon the
Nobles of Ireland
to the Parliament at Westminster,
there
to treat with the Nobles,
&c.
of his Kingdom
upon the State of the said Land,
i. e.
Ireland. Thus it is plain that the English Legislature, even so early as in the Reign of Edward II. (by whom the Writ was issued,) did not esteem it equitable to debate "upon
the State of the said Land,
"— ("super statu terrae praedictae,") without some legislative representation thereof. But, besides this
one example for all,
Sir Edward Coke has given us also, in the same page, a memorandum, from the Parliament Rolls of the 35th of Edw. III,
Rot. Parl. 35. E. 3. irrot. sic.
Anno 35, E. 3. de concilio fummonit. pro terr. habentibus in Hibernia.
Maria Comitissa Norf. ad mittendum fide dignos ad colloquium.
Aelianora Com. Orm. ad mittendum fide dignos ad colloquium.
Jana la Despencer, ad mittendum fide dignos ad colloquium.
Philippa Com. de la Marche, ad mittendum fide dignos ad colloquium.
Johanna Fitzwater, ad mittendum fide dignos ad colloquium.
Agnes Com. Penbroke, ad mittendum fide dignos ad colloquium.
Margaretta de Roos, ad mittendum fide dignos ad colloquium.
Matildis Com. Oxoniae, ad mittendum fide dignos ad colloquium.
Catherina Com. Athol. ad mittendum fide dignos ad colloquium.
of Writs being issued
even to Peeresses,
who, in their own right, held lands in Ireland, and of these no less than nine, to summon them to send Representatives, or proper persons, to confer with the Parliament;
ad mittendum fide dignos ad colloquium.
And consequently if Lord Coke's Doctrine (for which he has cited these examples) had, in those early times, been current,
viz.
that
by
special words
the Parliament of England may bind the Subjects of Ireland,
it is apparent, that the same could not have been understood in any other light than that of
including
a due representation of the Irish Parliament
within
the Parliament of England; which the examples themselves sufficiently demonstrate
In the same page likewise, (4th Inst. p. 350.) Lord Coke has produced still more evidence to prove the
Parliamentary Rights of the Irish Subjects;
for he cites the Parliament rolls of 10th of Edw. II.—
De Parliamentis
singulis annis
in Hibernia tenendis, et de legibus, et consuetudinibus
ibidem
emendandis;
and he remarks thereupon,—"Hereby it appeareth," (says he)
that there
were
Parliaments
holden in Ireland
before this time, and order taken at this Parliament,
(says he,)
that they should be holden
every year,
and the like Acts were made in England, in 4th E. III. and 36th E. III. for Parliaments to be holden in England;
so that regular
annual
Parliaments were established
in Ireland
BEFORE
they were in England!
: And that this was really the case, is clearly proved by some other English records, cited by Mr. Mollyneux, in his Case of Ireland, pp. 73, and 74. whereby it appears, that even
Knights of the Shires, Citizens, and Burgesses, were elected in the Shires, Cities, and Boroughs,
of Ireland,
to serve in Parliament
in England
"Formerly" (says Mr. Mollyneux) "when Ireland was but thinly peopled, and the English laws not fully current in all parts of the Kingdom, it is probable, that then they could not frequently assemble with conveniency or safety to make laws in their own Parliament at home; and therefore, during the heats of rebellions, or confusion of the times, they were forced to enact laws in England. But then this was always by their proper Representatives: For we find, that in the Reign of Edward the Third, and by what foregoes, it is plain it
was so in Edward the First's time; Knights of the Shire, Citizens, and Burgesses, were elected in the Shires, Cities, and Boroughs of Ireland, to serve in Parliament in England;
and have so served accordingly. For, amongst the records of the Tower of London, Roe. Claus. 50. Edward the Third, Parl. 2. Memb. 23. we find a writ from the King at Westminster, directed to James Butler, Lord Justice of Ireland, and to R. Archbishop of Dublin, his Chancellor, requiring them to issue writs, under the great Seal of Ireland, to the several Counties, Cities, and Boroughs, for satisfying the expences of the men of that land, who last came over to serve in Parliament in England. And, in another roll, the 50th of Edw. III. Membr. 19. on complaint to the King by John Draper, who was chosen Burgess of Cork by writ, and served in the Parliament of England, and yet was denied his expences by some of the Citizens, care was taken to reimburse him.
If, from these last mentioned records, it be concluded that the Parliament of England may bind Ireland; it must also be allowed, that the people of Ireland ought to have their Representatives in the Parliament of England. And this, I believe, we should be willing enough to embrace; but this is in happiness we can hardly hope for.
This sending of Representatives out of Ireland to the Parliament in England, on some occasions, was found in process of time to be very troublesome and inconvenient; and this we may presume was the reason that, afterwards, when times were more settled, we fell again into our old track and regular course of Parliaments in our own country; and hereupon the laws afore-noted, page 64, were enacted, establishing, that
no law made in the Parliament of England should be of force in Ireland, till it was allowed and published in Parliament here.
; which ancient privilege of the
Irish Commoned
has either been unknown, or also overlooked and forgot by Lord Coke; and indeed it is not probable that the Irish Parliament was ever summoned to England
regularly,
or as a matter
of course,
to meet the English Parliament, but only on extraordinary occasions, wherein the Subjects of Ireland were particularly concerned, and could not, we may presume, be "
specially named
" and bound, (that is consistently with
natural equity
and their own
just rights
) without their express assent: for it is apparent that
regular Parliaments
were held
in Ireland.
both BEFORE,
since,
and even
during the Reigns of those very Princes
who issued writs to summon them to
England;
which latter, therefore, can only be attributed to some extraordinary or peculiar circumstances, (out of common course) which rendered it necessary.
In addition to the clear Precedents before cited, it may not perhaps be improper to take notice of a circumstance quoted by the Honourable Mr. Justice Barrington, from Petyt, MSS. Vol. XXVII. p. 294. for though it is not a Precedent exactly to the point in question, (
i. e.
the sending Representatives from Ireland to the
English Parliament,
) yet it tends to corroborate the same equitable Doctrine concerning the necessity of
Representation
in general, which ought to be the basis of all determinations either in the
Privy Council,
(to which the example particularly relates,) or elsewhere.
There is a writ (says he) of Edward III. in the 50th Year of his Reign, to oblige the Inhabitants of
Cork
to pay the expences of
John Droup,
who is stated to have
been chosen by the Community to attend the King's Privy Council in England
"Observations on the more ancient Statutes," &c. p. 145.
.
The Business of his attendance, however, does not appear; but on whatever account he might attend
the Privy Council,
he was probably the same person that is mentioned in the record before cited from Mr. Mollyneux, by the name of
John Draper,
who was chosen Burgess of
Cork
by Writ, and served in the Parliament of England;
for, as the other circumstances correspond, both with respect to
the place
from whence he came, and
the year
of his being sent, it is natural to conclude, that the small disagreement in the name may have been occasioned by some accidental mistake,
viz. John Droup
for
John Draper,
or
vice versa;
and he might serve the Inhabitants of
Cork
in the double capacity of
Representative in Parliament,
and Agent for them to the
Privy Council;
or perhaps his summons and attendance, even at the
King's Privy Council,
might have been in his
parliamentary
capacity; for if a due Representation from Ireland was to attend the King here
in his Privy Council,
such an Assembly might, without danger, I apprehend, be allowed all the powers of an
effectual Legislative to bind Ireland,
provided the respective branches of Irish Representation be preserved entire and distinct; for the
English Privy Council
could have no legal voice in such a case, except that of advising the assent or dissent of the Sovereign; and yet, whenever it was necessary to call
a distinct
Irish Parliament in England, it is not improbable, but that they might be summoned to meet the
King in his Privy Council
by way, of distinguishing their separate Assembly from the joint-meeting of the English and Irish Parliaments before-mentioned. And that such
distinct Irish Parliaments
have sometimes been held
in England
appears by a record cited by Mr. Mollyneux
There have been other Statutes or Ordinances, made in England for Ireland, which may
reasonably
be of force here, because they were made and
assented to by our own Representatives.
Thus we find in the White Book of the Exchequer in Dublin, in the 9th Year of Edward the First, a writ sent to his Chancellor of Ireland, wherein he mentions
Quaedam Statuta per nos de Assensa Prelatorum Comitum Baronum & Communitates Regni nostri Hibexniae,
per upud Lincoln & quaedam alia Statuta postmodum papud Eborum facta.
These we may suppose were either Statutes made at the request of the States of Ireland, to explain to them the Common Law of England: or if they were introductive of new laws, yet they might well be of force in Ireland, being enacted by the assent of our own Representatives, the Lords Spiritual and Temporal, and Commons of Ireland; as the words afore-mentioned do shew: and, indeed, these are instances so far from making against our claim, that I think nothing can be more plainly for us; for it manifestly shews, (that the King and Parliament of England would not enact laws, to bind Ireland, without the concurrence of the Representatives of this Kingdom.
, wherein mention is made of Statutes made at
Lincoln
and at
York
in the 9th of Edw. I. by the
express assent of the Irish Parliament in all its branches of Legislature,
(viz. per nos de assensu Prelatorum, Comitorum et Communitates
Regni nostri Hibernioe
) without the least mention of
the English Parliament.
Thus it appears probable, that the Irish have been
represented
in England, as well in
separate
as in
joint
Parliaments; and, upon such equitable terms of Representation
in England,
I presume, no Irish Patriot will object to the
binding
of
English
Statutes
— "Add hereunto," (says Sir William Petty in his Political Survey of Ireland, p. 31.)
that if both Kingdoms were
under one Legislative Power and Parliament, the Members whereof should be proportionable in power and wealth of each Nation,
there would be no danger such a Parliament should do any thing to the prejudice of the
English
interest in
Ireland;
nor could the
Irish
ever complain of partiality when they shall be
freely and proportionably represented
in all Legislatures.
The same author has also made a very striking remark in p. 97, concerning the necessity of maintaining the independence of the
Legislative Power,
whether we apply the same to
Ireland,
or to any other part of the
British
Empire; for
why should men
(says he)
endeavour to get estates, where
the Legislative Power
is not agreed upon, and where tricks and words destroy
natural Rights
and Property?
whether Ireland be "
especially named
" or not; because the just reason of objection, before cited from the Judges in the 19th of Henry VI. and 2d Richard III. no longer subsists when a due Representation is allowed.
How much
later
than the Reign of Edw. III. this practice was continued, of
occasionally
summoning the Irish Parliament
into England,
does not appear; though we may be certain that it did not continue so late as the Reign of Hen. VI. because the great Fortescue and the other Judges, his cotemporaries, could not have declared (as has already been shewn) that
a tenth or fifteenth, granted
here,
should
not bind
those of Ireland,
if the practice of sending
Representatives from thence
had continued to that time: nevertheless, the proofs already produced are amply sufficient to confute the observation of Judge Jenkins in his 4th Century, p. 164,
viz.
that
the Statutes of England, which
expressly
name
Ireland, bind them and their Lands and Goods.
As the Statute of York
(says he)
made 12th E. II. and the 13th E. I. de Mercatoribus, and others:
For, as I have produced sufficient examples of the Irish Parliament being summoned to England in
both the Reigns
which he has mentioned, these Statutes cited by him can afford no testimony of what he supposes, because the Irish might probably have been
represented in those very
Parliaments; for which opinion (I have already shewn) there is
some evidence,
and I am not apprehensive that
any evidence at all
can be produced to the contrary.
The same reply holds good also, against the most material examples cited in Serjeant Mayart's answer to Sir Richard Bolton's Declaration
The learned Editor of these two Tracts, (Mr. Harris,) who has published them in his Hibernica, (printed at Dublin in 1770,) supposes, that
Sir Richard Bolton
was
not
the author of this Declaration, and informs us, in his Preface, that he is
inclined rather to give the honour of the performance to Patrick Darcey,
Esq
an eminent Lawyer and an active Member of the House of Commons in the Parliament assembled at Dublin in 1640,
who was the author of a similar argument delivered by him at a conference with a Committee of the Irish Lords in 1641, (printed in 1643.) "The conformity" (says Mr. Harris)
between what is alledged in the Declaration, and in Darcy's Arguments, inclines me to think him the author of that paper.
But a conformity in substance between two authors, upon one and the same
national
question, is very far from affording so substantied a proof of the real author as the name of
Sir Richard Bolton
upon one of the manuscripts: Probably the impeachment of Sir Richard Bolton (in the same year) of High-Treason, for betraying (in his capacity of Chancellor of Ireland) the Constitution of that country
Viz For having
traiterously contrived, introduced, and exercised an arbitrary and tyrannical Government, against Law, throughout this Kingdom, (Ireland,) by the countenance, and assis
e, of
Thomas
Earl of
Strafford,
then Christ Governor of this Kingdom.
See the 1st Article of Impeachment against Sir Richard Bolton and others, with the Speech of Mr. Audley Mervi
on that occasion, taken from Nalsop's Collection, of Papers, and raprinted at Dublin in 1764, at the end of Darcy's Argument.
, might be another reason for Mr. Harris's supposition: but this very contrary behaviour, with which Sir Richard Bolton was charged, does not appear to have been so much the effect of his private opinion, as of him political
time-serving,
or yielding, with his brethren in Administration, to the arbitrary notions of Lord Strafford, the (then) Lord Lieutenant of Ireland: or perhaps the dangerous increasing power of the papists at that time might occasion his thus yielding to measures which were so diametrically opposite to his own just principles; though indeed no danger whatever can justify such conduct, since "honesty is always" (most certainly) "the best policy." Nevertheless, not only Serjeant Mayart's answer acknowledges Sir Richard as the author of the Declaration; but Mr. Mollyneux in p. 48, and 49, cites a marginal note of Sir Richard's, (when he was Lord Chief Baron of the Exchequer in Ireland,) which he had affixed in his Edition of the Irish Statutes, Stat. 10 Henry VII. c. 22. to the following purport;
resembling
the substance of the Declaration, attributed to Sir Rich. Bolton,
much more
than the argument of Mr. Darcy,
viz.
That in the 13th of Edward the Second, by Parliament in this Realm of Ireland, the Statutes of Merton, made the 20th of Henry the Second,
and the Statutes of
Malbridge,
made the 52d of
Henry
the Third; the Statute of
Westminster
the first, made the 3d of
Edward
the First; the Statute of
Gloucester,
made the 6th of
Edward
the First; and the Statute of
Westminster
the second, made the 13th of
Edward
the First, were all confirmed
in this Kingdom, (Ireland;)
and all other Statutes which were of force in
England
were referred to be examined in the next Parliament; and so many as were then allowed and published, to stand likewise for Laws in this Kingdom. And in the 10th of
Henry
the Fourth, it was enacted in this Kingdom of
Ireland, That the Statutes made in
England
should not be of force in this Kingdom, unless they were allowed and published in this Kingdom by Parliament.
And the like Statute was made again in the 29th of
Henry
the Sixth. These Statutes are not to be found in the
Rolls, nor any Parliament
Roll of that time: but he
(Sir Richard Bolton)
had seen the same exemplified under the great Seal, and the
exemplification
remaineth in the Treasury of the
city of Waterford.
Mollyneux's Case of Ireland, pp. 48 & 49.
, setting forth
how, and by what means the Laws and Statutes
of England
from time to time came to be of force
in Ireland;
and it is undeniable, that the
Irish
Parliament have in general thought it necessary to examine, and to authenticate by the
express assent
of their own assemblies, such
English
Statutes as they judged proper to be admitted as Law within their own Island; of which Sir Richard Bolton has produced a great variety of examples
But such Statutes, as have been made in England since the 11th of King John,
and are introductory and positive, making new Laws, or any ways altering, adding unto, or diminishing the ancient Common Laws,
have not been binding or any ways of force in Ireland, until such time as they have been enacted, allowed, and approved of, by Act of Parliament in Ireland; as may appear by the judgements of nine Parliaments holden
there,
viz.
in the 13th of Edward
II. in a Parliament in Ireland, the Statutes of Merton and Marlebridge, made in the time of Henry III. and the Statutes of Westminster 1st, and of Westminster 2d, and the Statute of Gloucester, made in the time of Edward I. were confirmed and approved to be of force in Ireland; and all other Statutes, which were of force in England, were then referred to be examined
in the next Parliament, and so many of them, as should be then allowed, and published, to be accepted for Laws in Ireland.
And afterwards, in a Parliament holden in Ireland in 19th of Edward II. it was enacted that
the Statutes made in England should not be of force in the Kingdom of Ireland, unless they were allowed and published in that Kingdom by Parliament;
and the like Statute
was made again in 29th of Henry
VI.—But these Statutes are not to be found in these parliament rolls, nor any parliament rolls at that time, but the
same are exemplified under the great Seal, and the exemplifications were remaining in the Treasury of the city of Waterford.
And it is most certain, that not only these parliament rolls, but also many other rolls and records miscarried in those troublesome and distempered times, which have been in Ireland: For in all the times of Edw. III.—Rich. II.—Hen. IV.—and Hen. V. which is almost an hundred years, there is not any parliament roll to be found; and yet it is most certain, that divers Parliaments were holden in those times. Moreover in 28th of Edw. I.—5th of Edw. III.—14th of Edw. III.—25th of Edw. III. —34th of Edw. III.—and 7th of Rich. II. divers good laws were made in England by several Acts of Parliament against the extortions and oppressions of Purveyors; which laws were never received, nor put into execution in Ireland, untill the 18th of Hen. VI. chap. 1. that it was enacted, agreed, and established by Parliament in Ireland, that all Statutes made against Purveyors within the Realm of England should be holden and kept in all points, and put in execution in Ireland. — Afterwards in the time of Edward IV. a doubt was conceived, whether the Statute made in England in 6th of Rich. II. chap, 5. concerning Rape, ought to be of force in Ireland, without a confirmation thereof by Parliament: for the clearing of which ambiguity and doubt, in 8th Edward IV. chap. 1. in Ireland, it was enacted, by authority of Parliament, that
the said Statute of 6th of Richard
II.
be adjudged and proved in force and strength;
and that the Statute may be of force in this land of Ireland from the 6th day of March then last past, and from thenceforth the said Act, and all other Statutes and Acts made by the authority of the said Parliament, within the Realm of England, be ratified and confirmed, and adjudged by the authority of Parliament, in their
force and strength from the said 6th Day of March."—So as until the said Statute
of 8th Edw. IV.—the said Statute of 6th Rich. II. was not wholly of force in Ireland; and that may appear by the words of the said Statute of the 8th of Edward IV.—For by the words thereof the said Statute of 6th Rich. II. was to be of force
from the 6th of March then last past,
whereas, the said Statute of 6th
Rich.
II.
had been but a declaration or explanation of the Stature of Westminster 2. chap.
34. it would have
been of force at all times since the making
of the Statute of Westminster 2d. which was in 13th Edw. I.—But afterwards, 10th Hen. VII. c. 22. it was enacted in a Parliament in Ireland,
(this is one of the Acts commonly called Poining's Acts,)
that all Statutes then lately made within the said
Realm of England, concerning or belonging to the common or public weale of the same, from thenceforth
should be deemed good and effectual in the law, and over that accepted, used, and executed within the land of Ireland at all times requisite, according
to the tenor and effect of the same; and over that by the authority aforesaid, that they, and every of them, be authorised, proved, and confirmed in the said land of Ireland.
By all which Statutes, made from time to time in Ireland, it plainly appeareth,
that all Statutes made in England before 10th Hen.
VII.
concerning or belonging to the public and commonwealth of England,
are made to be of force,
and to become laws in Ireland.
— In 21st Hen. VIII. chap. 7. an Act was made in England, that makes it felony in a servant that runneth away with the goods of his master or mistress; and this Act was not received in Ireland until
the same was enacted by a Parliament holden in Ireland
in 33d Hen. VIII. Sess. 1. chap. 5.—In 21st Hen. VIII. chap. 19.—There was a law made in England, that all Lords might distrain upon the lands of them holden for their rents and services, and to make their avowries, not naming the tenant, but upon the lands: but this law was not received in Ireland until it was enacted there in 33d Hen. VIII. Sess. 1. chap. 7.—An Act was made in England in Anno 31. Hen. VIII. chap. 1. that joint tenants, and tenants in common, should be compelled to make partition; which Act was not received in Ireland until it was enacted there in 33d Hen. VIII. Sess. 1. chap. 10.—In 27th Hen. VIII. chap. 10. the Statute of Uses was made in England, for transferring of Uses into possession; which Statute was never received, nor of force in Ireland, till the same was enacted in Ireland, 10th Car. 1. chap. 1.—So likewise, 32d Hen. VIII. chap. 1. a Statute was enacted in England, whereby it is directed, how lands and tenements may be disposed by will, and concerning wardship, and primer seizins; which Statute was never received, nor of force in Ireland, until it was enacted by parliament in Ireland, in 10th Car. I. chap. 2.—In Anno 1st Eliz. chap. 5. there was an Act made in England for the uniformity of the Common-Prayer, and Administration of the Sacraments; which Act was not received in Ireland, until the same was confirmed and established by Parliament in Anno 2d Eliz. c. 2.—In Anno 5th Eliz. c. 9. there was an Act of Parliament made in England for the punishment of wilful perjury; which Act was not of force in Ireland until the same was enacted by a Parliament in Ireland, in 28th Eliz. chap. 1.—Another Act was made in England in Anno 3d Eliz. chap. 12. for the punishment of witchcraft and sorcery, and another Act in the same year, chap. 14. for the punishment of forgery; which Acts were not of force in Ireland until the same were enacted by Parliament there in 28th Eliz. chap. 2, 3.—In 28th Hen. VIII. chap. 15. there was an Act made in England for the punishment of piracy; which Act was not of force in Ireland until the same was enacted in Ireland in 12th of James, chap. 2.—In 27th of Eliz. chap. 4. an Act was made in England against fraudulent conveyances, which Act was not of force, nor received in Ireland, until the same was enacted in Ireland, 10th Car. I. chap. 3.— Besides many other Acts made in the several reigns of Henry VIII.—Edward VI.—Queen Elizabeth,— King James,—and the King's Majesty who now is. —In 24th Hen. VIII. chap. 12. &c. an Act was made in England concerning appeals made to Rome, which Act doth
by express words extend to all his Majesty's dominions;
yet the same
was not received,
nor of force
in Ireland,
until it was enacted by Act of Parliament
there
in 28th Hen. VIII. chap. 6.—Also the Statute of 28th Hen. VIII. chap. 8. made in England concerning the first-fruits of the Clergy, extended by express words to any of the King's dominions; yet the same was not received, or of force in Ireland, until it was enacted there by Parliament in 28th Hen. VIII. chap. 8.—Likewise the Act of faculties made in England 25th Hen. VIII. chap. 21. extended
by express words to all the King's dominions;
yet the same
was not received,
or of force,
in Ireland,
until it was enacted by Parliament in Ireland, 28th Henry VIII. chap. 19.
, some
general,
and some
particular,
made at different periods of time, from the 13th of Edward II. to the Reign of King Charles I. the time when he wrote, and of these examples not less in number than eighteen, which surely are sufficient to prove the uniform sense of the
Irish
Parliament upon this point in every age since they received the
English
Law.
Of the general examples which he has cited, that in the 10th of Hen. VII. (one of Poining's Acts) whereby all the English Statutes then in force were adopted by the Irish, is the most remarkable; and it is necessary to take particular notice of this Act, because the effect of it is frequently misunderstood; for some have supposed, that hereby
all the Statutes, made in the Parliament of England concerning the public, should be observed in Ireland,
without observing any farther distinction
In this indiscriminate manner Monsieur Rapin has expressed himself, and has thereby given a wrong Idea of the Irish Legislature to such of his readers as do not care for the trouble of secking better information; for, in speaking of the two Statutes, commonly called
Poining's Acts,
(after having mentioned that Act relating to the King's permission for assembling the Parliament,) he adds,
Un autre portoit que tous les Actes faits dans le Parliament d'Angleterre, concernant le Public, seroient observez on Irlande. Ces deux Statuts font encore en force aujourdui.
Tome 4. p. 469.
; as if they thought the Statute capable of including, not only all the English Acts then made, but, likewise, all such as should be ordained in future: and, if this had really been the case, it would have been in vain to have contended for the Liberties of Ireland; but the Act itself is not capable of such a
construction,
notwithstanding that some have thought it doubtfully worded. The tenor of it is recited by Lord Coke, in his 4th instit. p. 351. as follows:
That all Statutes,
late
made within the Realm of
England,
concerning or belonging to the common or public weal of the same, from henceforth be deemed good and effectual in the Law, and over that be accepted, used, and executed, within this land of
Ireland,
in all points,
&c.
And though the word
late
was afterwards deemed a doubtful expression, with respect to the extent of its effect, yet it sufficiently restrains the Act to the introduction of such
English
Statutes
only
as were of prior date; which effect is confirmed also by a resolution of the Judges, in the 10th of James, cited by Lord Coke in the same page
And, Hil. 10. Jacobi Regis, it was resolved, by the two Chief Justices and Chief Baron, that this word,
(late,)
in the beginning of this act, had the sense of
(before),
so that this Act extended to
Magna Carta,
and to
all
Acts of Parliament made in England
before
this Act of 10. H. 7. But it is to be observed, that such Acts of Parliament as have been made in England since 10. H. 7. wherein Ireland is not particularly named or generally included, extend not thereunto; for that, albeit it be governed by the same law, yet is it
a distinct Realm
or
Kingdome,
and (as hath been said)
hath Parliaments there.
4. Inst. p. 351.
; and he has likewise stated the true effect of that Act in his ist Institute, 141
b. Viz.
By an Act of Parliament (called
Poining's Law
), holden in Ireland
(says he)
in the 10th yeare of Henry the 7th, it is enacted, That all Statutes, made in this Realme of
England
BEFORE THAT TIME, should be of force, and be put in use, within the Realme of
Ireland,
&c.
This Act of Poining's, therefore, sufficiently proves what Sir Richard Bolton intended by citing it,
viz.
that the
Irish
did not esteem the
English
Laws
binding in that Kingdom
until allowed by the Authority of their own Parliament, otherwise the Act itself had been nugatory, as also the other Irish Acts which he has cited for the same purpose; in some of which, it seems, the Parliament itself expressly asserted the Doctrine for which he contends; as in that of the 19th of Edw. II. wherein it was enacted,
That the Statutes, made in
England,
SHOULD NOT BE OF FORCE in the Kingdom of
Ireland,
unless they were allowed and published in that Kingdom by Parliament.
See Sir Richard Bolton's Declarations,
&c.
in Harris's Hibernica, p. 15.
Sir Richard Bolton also informs us, that
a like Statute was made again in the 29th of Henry VI.
and therefore, notwithstanding that Serjeant Mayart has taken great pains, and filled many pages with citations of precedents from old Records of Law Cases, Writs,
&c.
(in order to prove that
English
Acts of Parliament have been referred to, and allowed in judicial Proceedings, before the same were confirmed in
Ireland,
) yet all his labour has been bestowed in vain; for (besides that he ought first to have proved the Acts in question to have been made by the
English
Parliament alone, without any such representation of the
Irish
Parliament jointly therewith, as I have already shewn to have been frequently practised in those early days) let it be also remarked, that, though we should allow that the
Irish
Courts of Justice might, perhaps, in some particular cases of
difference
between individuals, but of
indifference
to the general Liberties of
Ireland,
have followed the directions of some mere
English
Acts of Parliament, as esteeming them wholesome regulations of Justice, proper to be adopted for the determination of the Cases before them, yet the
Confirmation
of such Acts afterwards, at different periods, clearly proves the irregularity of such premature proceedings in the Courts, and that the highest Court of that Kingdom, the Court of Parliament, did not esteem the
English
Acts
of sufficient legal Authority
till confirmed by themselves; for, otherwise, the
Confirmation
would have been
unnecessary,
since the Acts (if Serjeant Mayart's examples are admitted) were already received into use; and, therefore, all such Court-Precedents, as are cited by the learned Serjeant, are clearly Precedents of
Irregularities
and not of
Law;
so that they are not intitled to any consideration at all; especially as the Irish Legislature itself (which has certainly a better right to determine what shall be esteemed Law in Ireland than any of the inferior Courts) has positively declared, by the express Acts of the 19th of Edward II. and the 29th of Henry VI. before cited, that
English
Statutes shall not be of force in
Ireland,
unless allowed by the
Irish
Parliament! And agreeable to this is the Declaration of the Irish House of Commons in 1641, Article the first: That
the Subjects of this his Majesty's Kingdom of Ireland are a free people, and to be governed only according to the
common Law
of
England,
and Statutes made and established by Parliament in this Kingdome of
Ireland,
and according to the lawful Customes used in the same.
p. 133.
Now, though the Conviction by these weighty Authorities will probably destroy the credit of Serjeant Mayart, as a writer, in the opinion of every honest Irishman, yet the Irish are more obliged to this Author than he himself, perhaps, intended they should be; for he clearly proves that
a Charter of Liberties
For the only mistake of
Lord Coke
is, that he conceived
(says he)
that
Magna Charta
was not of force in
Ireland
'till the 10th of Hen. 7. which is only a mistake of a matter of fact: for
in truth we find
(continues the Serjeant)
that statute was given to them of Ireland in the first year of Hen. 3. and all the Chapters thereof (except three or four of the last Chapters) are entered in the Red Book of the Exchequer of Ireland, where, in the beginning, after the King's stile recited, he saith, Imprimis concessimus Deo, et hac praesenti Chartâ nostrâ confirmamus pro nobis & haeredibus nostris in perpetuum, quod Hibernica Ecclesia libera sit,
&c.
— First, we have granted to God, and, by this our Charter, confirm, for us and our heirs for ever, that the Church of Ireland be frec. — Sir John Davis cites a Record in the Tower, 1st of Hen. 3. Memb. 13.
of the like Charter of Liberties granted
by Hen. 3.
to his Subjects in Ireland, as himself and his Father had granted to the Subjects of England;
but yet this mistake is only for that Coke was not
informed of that matter of fact.
Harris's Hibernica, pp. 226, 227.
, agreeing in all the Chapters with our
Magna Charta,
was
separately granted to the King's Subjects of Ireland,
without distinction, in the first year of King Henry III. so that
all the Subjects of Ireland,
(the conquered Irish not excepted,) from that very early period, and even sooner
For, the
English Settlers
carried their Rights with them, and the native Irish
gladly accepted
the
English
Common Law, as soon as it was tendered to them by the
English
Conquerors, of which I have produced ample testimony in a Note on page 108. so that their just title to
English Liberty
and all the legal Immunities of the Conquerors was clearly established and confirmed by
this Irish Magna Charta.
— They were very soon afterwards, indeed, wickedly excluded from these equitable Privileges by the inconsiderate English Settlers; many of whom, for the sake of tyrannizing over their poor neighbours, even
degenerated
(as Sir John Davies informs us in p. 32.) into the lawless Irish manners themselves, adopting the old
Irish
oppressions of Tanistry, Cosherings, Cuttings, Sessings, Coigne and Livery,
&c.
under which most wicked
These
most wicked oppressions
originally sp
ang from the undue Power and unlimited Sway of the antient Irish Chieftaine, or Lords, over their poor brethren; but I must refer my Readers, for a particular description of them, to Sir John Davies, who has emply set forth the grosa injustice and pernicious effects of such
unlimited power
in men: nevertheless I am tempted to cite, by way of sample, what he has men
ioned in on
place concerning the wickedness of
Coigne
and
Livery
in particular: for, in shewing the ill effects of English Degeneracy, he remarks in p. 33. "By this" (says he)
it appeareth why the extortion of
Coigne
and
Livery
is called, in the old Statutes of Ireland, A DAMNABLE CUSTOME, and the imposing and taking thereof made
High-Treason.
And it is said, in an antient Discourse
(says he)
of the Decay of Ireland,
that, though it were first invented in
Hell,
yet, if it had been used and practised there as it hath been in Ireland, it had long since destroyed the very Kingdom of Beelzebub.
The same bad effects are produced, in some degree, by every kind of
Vassalage;
so that the bad Policy of establishing
Seigneuries
in Canada. or eltewhere, is but too apparent.
pretences they devoured the
poor Natives
as well as the poorer sort of
English
Settlers, and thereby occasioned almost continual Wars for several ages; which, in the end, turned out to their own great peril and disadvantage, according to the never-failing maxim, or rather warning, of the Apostle Paul;
If ye bite and devour one another,
take heed that ye be not
consumed one of another.
Gal. v. 15.
But, though the
Irish
were, by this wretched Policy of the
English,
long deprived of the
Benefit
of the
English
Common Law, yet this by no means deprived them of their just
Right
or
Claim
to it, which must necessarily be acknowledged to have been due from the time that the English first settled in that Country.
, were as much entitled to
English
Liberty, and all the Immunities and Benefits of the
English
Common Law, as the Inhabitants of England themselves: and yet Lord Coke himself, it seems
2d Inst. p. 2.
, was not aware of this Circumstance, but "Conceived" (says Serjeant Mayart, p. 226.)
that
Magna Charta
was not of force
in Ireland
till the 10th of Hen. 7. which is only a mistake
(says he)
of a matter of fact; for
in truth we find
(says he)
that Statute was given to them of Ireland in the first year of Hen. 3.
&c.
But though this was only
"a mistake of a matter of fact,"
yet it was such a mistake as might probably, in great measure, have occasioned the erroneous opinions ever after, of that great and worthy man, concerning the Constitution of Ireland.
But Serjeant Mayart has not profited so much as might have been expected by this knowledge that the Subjects of
Ireland
were honoured with a distinct Charter; for, after pointing out (in page 227) the several Chapters of the Charter, wherein (as he supposes)
that Law differs from the antient common Law,
he adds them triumphantly to his Collection of Precedents for binding
Ireland
by Statutes made in
England;
as if
a Charter of Liberties,
freely given and gladly accepted, could afford any Evidence
against Liberty!
For this undistinguishing man did not consider that the King, by this Charter of Liberties,
binds and restrains
himself (rather than his People) in all the most dangerous points of Prerogative, wherein the Rulers of other Countries are left too much
unlimited;
and therefore that the Subjects of
Ireland
might accept the same (which they most willingly did) without the least Derogation from their just and natural Rights.
And, as this Charter was granted to the
"King's Subjects in Ireland"
without distinction, it affords the most ample proof that even the
conquered Irish
were entitled to all the Immunities, Protection, and Benefits, which the
English Conquerors themselves
enjoyed by it: for even Serjeant Mayart himself proves (in p. 67.) that the English Laws
were given at first
—
tam
ANGLIS QUAM HIBERNICIS,
as well to
ENGLISH AS IRISH
Serjeant Mayart also informs us,
That the whole Realm of Ireland was antiently reduced into Counties, and that the English Laws had passage throughout the same, as appears" (says he) "by several Pipe-Rolls of the Time of Hen. 3. in the Exchequer of Ireland, where there are accounts
(says he)
made for fines, paid by the mere
Irish,
for
Disseisins,
and many other kinds of Trespasses, committed by them in those places, which the Author calls
Irish
Territories; though some of the Irish, with their posterity after them, being always
averse
to the English Laws, could not digest them, but hid themselves in the bogs, mountains,
&c.
But this aversion of
"some of the Irish"
to the English Laws is easily accounted for, since it appears very clearly, from Sir John Davies's Book, that the Irishry had much more experience and woful knowledge of
English Oppression
than of the
English Laws;
for, when any of them wore driven from their Lands and Possessions through the avarice, and by the unlawful power, of the great English Lords, who found their interest in treating them as enemies, it was very
natural
for them to attempt to
disseize,
and recover their former Rights and Possessions: and again, when they found no Protection from the English Laws, nor other exertion thereof than that of
sining
and
punishing
them for such
"Disseizins," &c.
which were mere
Re-entries,
it was
equally natural
for them to imbibe prejudices against the English Laws, and to fly to their Bogs,
&c.
Thus the
English Oppressions
were apparently the cause why
some
of the Irish were averse to the
English Laws;
which I have expressed more at large in a Note on p. 108.
. The Irish Nation are also obliged to Serjeant Mayart for some other Proofs in their favour,
which he intended against them:
for, amongst his Precedents of
giving Law,
he informs us, in p. 219.
that, in the Reign of King Henry II.
the common Law
and
lawful
Customs of
England
were received, planted, and established, in this his Majesty's Kingdom of Ireland;
a Point which every Irish Patriot is zealous to maintain! And he has favoured us, in page 220, with another notable Example of binding the
Irish
by
English
Laws: this, it seems, was in the Reign of King John,
of whom,
(says he triumphantly,)
in that respect, it may be well said, that,
Statuit et praecepit Leges;
he
appointed and established the Laws;
as also because he put them in writing, and left them in his Court of Exchequer for their better directions:
but he happily informs us at the same time, (which spoils his own application of the Precedent,) that all this was done
"at the instance"
(says he)
of the Irish,
(as the Record saith,) or of the English who accounted themselves Irish,
&c.
And therefore, as these English Laws and Customs are clearly acknowledged by himself to have been introduced
at the instance of the Irish,
it must manifestly appear, that this antient example excludes the Doctrine which he meant to support by it, in opposition to Sir Richard Bolton; and therefore, if all these points are duly considered, I think we may very fairly retort his own words (which he exultingly applied to Sir Richard Bolton) upon himself!
viz.
Whereupon it must needs also follow, that the Author's Discourse
FALLS ALL IN PIECES,
and is nothing
to the purpose that he would have it.
Serjeant Mayart has also taken a great deal of needless pains to prove
Ireland
to be annexed to
the Crown of England,
and that
the King and Parliament of England have Power over Ireland,
and he cites several Acts of Parliament, and other Authorities, in pages 64 and 65 of his
Answer,
in the
Hibernica,
which clearly prove, indeed, the
former part of the Assertion,
(that Ireland is annexed to the Crown of England;) a point which the Irish themselves are so far from denying, that they are rather desirous to maintain it
Case of Ireland, p. 96.
It has ever been acknowledged that the Kingdom of Ireland is inseparably annexed to the Imperial Crown of England
The obligation that our Legislature lies under by Poining's Act, 10 Hen. VII. c. 4, makes this
Tye between the two Kingdoms
indissoluble. And we must ever own it our happiness to be thus annexed to England; and that the Kings and Queens of England are, by undoubted Right,
ipso facto,
Kings and Queens of Ireland. And from hence we may reasonably conclude, that, if any Acts of Parliament made in England should be of force in Ireland, before they are received there in Parliament, they should be more especially such Acts as relate to the
Succession
and
Settlement of the Crown,
and
Recognition
of the King's Title thereto, and the
Power
and
Jurisdiction
of the King. And yet we find, in the
Irish
Statutes, 28 Hen. VIII. c. 2,
an Act for the Succession of the King and Queen Anne;
and another, chap. 5, declaring the King to be
supreme Head of the Church of Ireland;
both which Acts had formerly passed in the Parliament of England. So likewise we find, amongst the Irish Statutes,
Acts of Recognition of the King's Title to Ireland,
in the reigns of Henry VIII. Queen Elizabeth, King James, King Charles II. King William and Queen Mary. By which it appears, that Ireland, though annexed to the Crown of England, has always been looked upon to be a
kingdom complete within itself,
and to have all Jurisdiction to an absolute Kingdom belonging, and subordinate to no legislative authority on Earth: Though, it is to be noted, these English Acts, relating to the succession, and recognition of the King's Title, do particularly name Ireland.
See also page 33, where the same author speaks of
Ireland's being annexed to,
and, as it were,
united with,
the imperial Crown of England, by several Acts of Parliament, both in England and Ireland, since King John's time. But how far this operates, I shall enquire more fully hereafter; I shall only, at present, observe, that I conceive little more is effected, by these statutes, than that Ireland shall not be
aliened
or
separated
from the King of England, who cannot hereby dispose of it otherwise than in
legal succession
along with England; and that whoever is
King of England
is,
ipso fucto, King of Ireland,
and the subjects of Ireland are obliged to obey him as their liege Lord.
. But none of his Authorities afford the least shadow of Evidence for the latter part of his Assertion,
viz.
the Power of the
English Parliament
over
Ireland.
And, because Sir Richard Bolton had allowed that such Laws, made in
England,
as are declaratory of the
Common-Law,
do bind
Ireland
without any confirmation there; (see
Hibernica,
p. 27,
&c.
) Serjeant Mayart hopes to avail himself of the circumstance, and observes thereupon,
It must necessarily follow
(says he, p. 76)
that the Parliament of
England
hath still an influence upon
Ireland,
&c.
And a little farther he adds,
But if it should happen
(says he)
that the Parliament of
England
should make an exposition of a Law in force in
Ireland,
and the Parliament there should make another, and that it may be different or contrary to that of
England,
certainly
(says he)
Ireland
must be bound (by the Author's own Rule,
meaning Sir Richard Bolton)
by the declaratory Statute of the Parliament of
England.
But Sir Richard Bolton's Rule includes no such Doctrine. For there is nothing unreasonable in supposing that the Irish subjects, without prejudice to their natural Rights and the Privileges of their own Parliament, might receive
the declaratory Statute of the Parliament of England
as the best Exposition of the Common-Law, which they
before acknowledged,
and
freely accepted
by
their own express assent and desire.
Sir Edward Coke himself bears ample testimony to this. — "Our student must know," (says he,)
that King John, in the 12th year of his reign, went into Ireland, and there, by the advice of grave and learned men in the Lawes, whom he carried with him, BY PARLIAMENT, DE COMMUNI OMNIUM DE HYBERNIA CONSENSU, ordained and established, that
Ireland
should be governed by
the Laws of England,
which, of many of the
Irish-men,
(for the
common consent
before mentioned must mean that of the
English
settlers)
according to their own desire, was joyfully accepted and obeyed,
and of many the same was soon after absolutely refused, preferring their
Brehen
Law before the just and honourable Lawes of England.
1st Inst. p. 141.
But this subsequent refusal, and preference given to the
Brehen Law,
must not be charged to the
native Irish
in general; for Sir John Davis, in his
Discoverie of the true causes why Ireland was never entirely subdued,
&c.
demonstrates that the
English Settlers
were
principally
to be blamed for this. He shews, (p. 135,) that
the scopes of land, which were graunted to the first adventurers,
were too large,
and the
Liberties
and
Royalties,
which they obtained therein,
were too great for subjects.
— And, in p. 144,
that these
Grants
of whole provinces and petty kingdoms, those few English Lordes pretended to be proprietors of all the land, so that there was no possibility left of
settling the natives in their possessions,
and, by consequence, the conquest became impossible, without the
utter extirpation of all the Irish;
which these English Lordes were not able to doe, nor perhaps
willing,
if they had been able.
This he afterwards explains, shewing that false notions of private interest, among the
English
Lords, prevented both the conquest, and the introduction of the English Law: They
hoped to become Lords of those lands which were possessed by the Irish, whereunto they
pretended title by their large Grants,
&c.
(p. 144,)
and that therefore
they persuaded the King of England (p. 145) that it was
unfit to communicate the Lawes of England unto them;
that it was the best policie to holde them as aliens and enemies, and to prosecute them
with a continual warre.
Hereby they obtained
(says he)
another royal Prerogative and power; which was, to
make Warre and Peace at their pleasure,
in every part of the kingdom: which gave them an absolute command over the bodies, lands, and goods,
(even)
of the
English
Subjectes heere;
meaning in Ireland, where he wrote. And he adds, in the same page, "And besides" (says he)
the
Irish
inhabiting the lauds fully conquered and reduced, being in
condition of slaves
and villaines, did
render a greater profit and revennew,
than if they had been made
the King's free subjects.
They also feared
(as he declares in the preceding page)
that, if the Irish were received into the King's protection, and made liegemen and free-subjectes,
the State of England
woulde
establish them
(or rather re-establish them)
in their possessions
by Graunts from the Crown,
&c.
And "The
troth is,
" (says he, in p. 146,)
that those great English Lords did, to the uttermost of their power, crosse and withstand the enfranchisement of the Irish, for the causes before expressed.
— And he rightly lays
the fault upon the pride, covetousness, and ill-counsell of the
English
planted heer,
which in all former ages
(says he)
have bin the chief impediments of the final conquest of Ireland.
On the other hand, he clearly exculpates the
native Irish
from the charge of
wilfully
refusing to be subject to the Laws of England. "But perhaps" (says he, in p. 115)
the
Irishry
in former times did wilfully refuse to be subject to the Lawes of England, and would not be partakers of the benefit thereof, though the
Crown of England
did desire it; and therefore they were reputed Aliens, Out-lawes, and Enemies. ASSUREDLY THE CONTRARIE DOTH APPEARE, as wel by the Charters of Denization, purchased by the Irish IN ALL AGES, as by a petition preferred by them to the King, anno 2 Ed. III. desiring that an Act
might passe in Ireland,
whereby ALL THE IRISHRIE might be inabled to use and injoy the
Lawes of England,
without purchasing of
particular Denizations.
And, in p. 117, he adds: —
I am well assured, that
the Irishrie
DID DESIRE
to be
admitted to the benefit of the Law, not only in this petition exhibited to King Edw. III. but
by all their submissions
made to King Richard II. and to the Lord Thomas of Lancaster, before the warres of the two Houses; and afterwards to the Lord Leonard Gray and Sir Anthony St. Leger, when K. Henry VIII. began to reform this kingdom. In particular, the Birnes of of the Mountaines, in the 34th of Hen. VIII. desire that their countrey might be made Shire ground, and called the County of Wicklow: And, in the 23d of Hen. VIII. O. Donnel doth covenant with Sir William Skeffington,
Quod si Dominus Rex velit reformare Hiberniam,
(whereof, it should seem, he made some doubt,)
that
hee and his people would
GLADLY
bee governed by the Lawes of England.
These quotations sufficiently demonstrate the
willingness
of the native
Irish
to adopt the
English
Laws and Constitution, and that the denial of such a reasonable desire was the just cause of their almost continual rebellions and bloody wars against the
English
Settlers. However, in the reign of King James I.
the Irishry
were restored to their just Rights,
and the benefit and protection of the Law of England communicated TO ALL, AS WELL IRISH AS ENGLISH, WITHOUT DISTINCTION OR RESPECT OF PERSONS,
&c.
(p. 264.)
And Sir John Davies himself was one of the judges employed in that most grateful business to a benevolent man; I mean the
Visitations of Justice, whereby the just and
HONOURABLE LAW OF ENGLAND was imparted and communicated to
all the Irishry.
(P. 265.)
And he informs us, in the same page, that
the common people
were taught, by the Justices of Assise, that
they were
FREE SUBJECTS
to the Kings of England,
and not Slaves and Vassals to their pretended Lords: That the
Cuttings, Cosheries, Sessings,
and other extortions of their Lords, were UNLAWFUL, and that they should not any more submit themselves thereunto, since they were now under the protection of so just and mighty a Prince, as both would and could protect them from al' wrongs and oppressions. They gave
(says he)
A WILLING EAR unto these lessons; and thereupon the greatnesse and power of those Irish Lords over the people sodainly fell and vanished, when their oppressions and extortions were taken away, which did maintain their greatness,
&c.
In p. 262, he informs us, that Sir Edmund Pelham and himself were
the first Justices of Assise that ever sat in those countries;
(speaking particularly of Tyrone and Tirconnell;) "and in that circuit" (says he)
we visited all the shires of that province: besides which, visitation, though it were somewhat distastfull to the Irish Lords,
was sweet and most welcome to the common people;
who, albeit they were rude and barbarous, yet did they
quickly apprehend the difference
betweene the tiranny and oppression under which they lived before, and
the just government
and protection which we promised unto them for the time to come.
Thus the common people of
the Irishry
were at length restored to that equality, in the eye of the law, to which they were justly entitled (though shamefully deprived of it) from the earliest time that the English began to be known in that kingdom, even from the first establishment of the English Conquerors; for Sir John Davies shews, from Matthew Paris's History, that
King Henry II.
before his return out of Ireland,
held a Counsell, or Parliament, at
Lissemore,
where the Laws of England were,
by all, willingly received;
ubi leges Angliae AB OMNIBUS
sunt gratanter receptae,
et juratoria cautione praestita confirmatae:
p. 100.
And he informs us, in the next page, that
King Henrie the Third did graunt and transmit the
like Charter of Liberties to his subjects of Ireland,
as himself and his Father had graunted to
the Subjects of England,
as appeareth
(says he)
by another Record in the Tower, 1 Hen. III. Pat
m. 13.
And he cites also a writ of the 12th year of the same King, commanding the Lord Justice of Ireland to cause
the Charter of King John
to be read and confirmed by Parliament; and again, that
the same King, by Letters Patent under the Great-Seal of England,
did confirme the establishment
of the
English Laws
made by King John,
and that all Writs of
the Common Law
should have course there as in England —
Quod
OMNIA BREVIA
de
COMMUNI JURE,
quae currunt in Anglia, similiter currant in Hibernia,
&c. Thus it appears, that all
Irish
Subjects, without distinction, are entitled, according to the clearest and most unquestionable testimony, to all the Rights, Immunities, and Advantages, of
Magna Charta
and the
English
Common Law.
But let us suppose that, in some such declaratory Act, they had reason to think the English Exposition improper, and should therefore choose to confirm their
own sense
of it by the Authority of their
own Parliament,
surely the latter would be binding in Ireland, and
not the English Statute,
as Serjeant Mayart supposes; for there is no example of an
Irish
Act of Parliament being set aside by the Authority of the
English
Parliament, which Serjeant Mayart allows:
Neither is it to be imagined" (says he in p. 199) that the Kings and Parliaments in England will ever
avoid any Laws made in Ireland
without a good and just cause,
since they have not done any such things for about four hundred years,
which is time enough to have experience of their honour and justice,
&c.
And he afterwards uses this plea concerning the Honour and Justice of the English Parliament, as an inducement for the Irish to be bound by it; "and seeing" (says he in p. 191)
that, for above 400 years, they have never done hurt to Ireland,
&c.
therefore we may
well trust them
hereafter,
&c.
And again, in p. 192, "But we all know" (says he)
with
what great consultation, deliberation, and knowledge of things, and the circumstances of them, the Kings and Parliaments of England
have still ordered their affairs,
&c.
And we may,
(says he,)
as all our ancestors have done,
trust to their wisdom, justice, and judgement,
as a
sufficient hedge
and security for us.
But, surely, no People, who have the use of reason or commonsense, would be induced by
such an argument
to submit themselves implicitly to a Parliament, in which they have no Share of Power or
Representation;
though, indeed, it may be alleged, in behalf of this writer and his argument, that Parliaments, before his time, were,
in general,
less corrupt than they have been since, if we except the Parliaments of Richard II. and Queen Mary; but, in these latter times,
we all know with what great consultation, deliberation, and knowledge of things, &c. &c. &c.
If it had been possible for the
Irish
Subjects to have given up to Serjeant Mayart this contested point, concerning the necessity of
a due Representation in the Legislature,
without giving up, at the same time,
all due Limitation of Government,
and consequently
all pretensions to their natural Freedom,
this advice of his might have been esteemed excusable!
But it is
Representation alone
which forms the Basis, the superiority, and the essential difference, of the
English
Constitution of State, from all others! For, in countries where
this is wanting,
or where it is become
totally corrupted,
it makes but little difference, to the bulk of the people, whether the executive part of government be in the hands of one, of a few, or of many;
viz.
of an Emperor, of a Triumvirate, or of a Senate of Nobles or proud Patricians, (as among the Romans, at different periods of time). The administration of each of these orders of power, respectively, is almost equally arbitrary, uncertain, and dangerous to the community; to which the Histories of all monarchical as well as aristocratical Governments (I mean those that are merely or too nearly such) bear sufficient testimony: so that
the Representation of the people
is the grand point of distinction, the fundamental principle, whereby the equity and safety of the
English
Government is to be measured, when we compare it with such Governments as either that of France, or that of Poland.
I have already given some specimens of
French
Government and
French
Law in my Preface, it being necessary that
British
Subjects should be well aware of the Nature and Tendency of that Law which has so lately received the solemn Sanction even of our own Legislature,
The late Act for establishing the Laws of
France
in the most extensive Province of the
British
Empire must indeed seem very strange and unnatural to the genius of
Englishmen
in general; especially when we consider that even the
French
Inhabitants of that Province themselves are zealous for the
"Privileges of English Subjects;"
which plainly appears by some Expressions in their late Address to the Governor on that occasion: and we may, therefore, rest assured that they are not, in general, so ignorant, and void of common-sense, as really to prefer the Laws of
France
to the
equitable
Constitution of
England,
howsoever they may have been misrepresented. We must, nevertheless, except a few French Seigneurs, who, having already been allowed
greater exclusive Privileges
than are consistent with the safety and freedom of their poor neighhours and fellow-subjects, would rather wish to promote the
French
Laws and Customs (which permit such an unjust Vassalage) than the equitable Laws of
England:
and we may likewise except the Priests, and some other absolute Bigots to the Romish Religion, who, being entangled in
the Slavery of antichristian Principles
and
"the Doctrines of Devils,"
are ready to submit to any
temporal
conditions whatsoever for the sake of that
spiritual,
or rather
Satanical,
Bribe, which was wickedly thrown out to them on this occasion: I mean the setting up their
adultecated
Religion as the
established Church of that Province
(with a legal Right to collect Tythes,
&c.) by national authority.
This was the more unjust and inexcusable, because the Romanists had no reason to complain of that Toleration which they so freely enjoyed before. In a note on p. 125, where I have occasion to mention the defects of some
supposed
Statutes, I have added some examples (which naturally occurred thereupon) concerning the abominable Tyranny and Wickedness of the
adulterous
Church of
Rome;
and these, I trust, will sufficiently justify the severity of my expressions against that
antichristian
Church. See also my
Remarks on several very important Prophecies,
part 2, p. 18, and part 4, p. 34.
as being proper to be renewed and enforced in a certain Province of the British Empire! And the Hon. Mr. Justice Barrington, in his Observations on the ancient Statutes, has also, in just abhorrence of the French Law, cited several "Fundamental Maxims"
"Si veut le Roy. si veut le Loi." The King's Will is Law! Some of the pernicious effects of this detestable maxim I have already shewn in my Preface.
of it,
upon which the King's Prerogative is founded, which
(as he justly remarks)
may not only be matter of some curiosity to an Englishman, but, by comparison, may make him thankful for
the noble Constitution to which he is happily born.
A Cappadocian
(says he)
;may indeed refuse, from custom and long usage, to exchange a despotic for a more free Government; but I can never be persuaded
(says this benevolent Gentleman)
but that there is
a necessary connexion between Slavery and Misery,
and
between Freedom and Happiness.
Seneca
(says he)
nobly inforces the communication of
Liberty to the Subject,
from
the Safety
it procures
to the King:
This was the uniform Doctrine of all the antient constitutional Lawyers of England, and especially of the great Chancellor Fortescue, whose opinion I have expressly quoted, and added some farther observations upon the same point, in a Note on page 7 of this
Declaration,
Part 1.
Errat si quis existimat tutum esse ibi Regem, ubi nihil a Rege tutum est; securitas securitate mutuâ paciscenda est.
p. 179.
Now, this necessary
mutual security
can only be insured by
a free Representation of the People
in the Legislature; and therefore the learned Author of this excellent remark will readily allow, (I trust,) when he comes to consider these arguments, that he himself was not sufficiently upon his guard, in another part of his useful work, (p. 141,) where he had occasion to mention the
Irish Laws;
having there unfortunately adopted the mistaken doctrine of Lord Coke, about binding the
Subjects of Ireland
by
English
Statutes,
"if Ireland is mentioned."
But it is certainly very natural for a gentleman regularly bred to the profession of the Law to be less circumspect when he follows so great an authority as Sir Edward Coke, who is
generally,
and for the most part
justly,
esteemed the Oracle of the English Law.
Mr. Barrington is commenting on the Ordinance of 17 Edw. I.
pro statu Hiberniae;
and, after informing us that it is not found in the Collection of Irish Statutes, which begin only with
the Ordiance of Kilkenny,
in the 3d of Edw. II. he adds, "There can be no doubt," (says he,)
however, that this Law extends to Ireland,
if not repealed by some Irish Act of Parliament;
This Sentence contains an implied acknowledgement that a Law made in
England,
relating to the Government of
Ireland,
may be
repealed by an Irish Act of Parliament;
and if this be allowed, (which it certainly ought to be,) there can be no room to suppose the
Irish
Subjects bound by an
English
Act
if Ireland is mentioned;
for, wherein is the force or
binding
of the
English
Act if the
Irish
are allowed a Right to repeal it? Such
binding
amounts to nothing: we may as well say that an
English
Act
binds
the Emperor of
Morocco
and his Subjects, or the wild
Anabs, "when especially named,"
since it can
bind
no longer than while they shall be willing to submit to it! But, that the
Irish
Subjects really have a
Right
to
repeal
an
English Act
relating to their own internal Government, (if we may with propriety apply the word
repeal
to Acts that were originally defective and void for want of the
Irish
assent,) is clearly proved by Mr. Mollyneux, in his
Case of Ireland,
page 76.
as by
Poining's Law,
in the time of Henry the Seventh, all PRECEDENT
Here the Hon. Mr. Barrington confirms what is before laid down in pages 91 and 92, concerning the effect of Poining's Law.
ENGLISH STATUTES are made to bind in
Ireland.
And he remarks thereupon, in a note, that
subsequent
Statutes only bind
if Ireland is mentioned;
as for
Wales,
(continues he,) all Statutes are now made to extend to it, whether
mentioned or not,
by a clause inserted in the middle of 20 Geo. II. cap. xlii.
&c.
But the true reason why this doctrine may be applied to
Wales
with propriety and
justice,
(and yet not to
Ireland
without
injustice,
) is, because the
Welchmen
give their
assent
to the
English
Laws by their Representatives in the
English
Parliament, whereas the
assent
of the
Irish, which is equally essential,
cannot be known, in a
legal
manner, but by the voice of
their own
parliamentary
Representatives;
so that the very reason why all
English
Statutes
"extend to Wales, whether named or not"
forbids the application of the like Doctrine to
Ireland:
and, as the opinion of the Judges, in the 19th of Hen. VI. and in the 2d of Rich. III. before cited, in favour of Ireland, was founded on
this very reason,
(
quia non hic habent milites parliamenti,
) I hope the same will be thought sufficient to justify my dissent, as well from Mr. Barrington as from the great Author whom he seems to have followed in this matter, I mean Lord Coke himself, whose assertion I propose to examine still more closely, before I conclude this 2d part of my Declaration.
The Hon. Mr. Justice Barrington also observes, in p. 145, that
there have been great and learned controversies between Molyneux and others, with regard to an English Act of Parliament binding in
Ireland;
and Molyneux,
(says he,)
who contends it should not, hath
argued strongly
from an
English
Statute's not being supposed to extend to
Ireland
before Poyning's Act in the reign of Henry the Seventh,
&c.
— and a very
strong argument
it is! which, I hope, hath already been shewn. But the Hon. Mr. Barrington proceeds to cite; from the Parliament-Rolls of the 21st of Edw. I. a memorandum of a very unwarrantable exertion of Royal-Prerogative, by that monarch,
viz.
his sending a copy of
the Ordinance
The Hon. Mr. Barrington, in p. 41, very justly remarks, concerning the Statute of Merton, in the 20th year of Hen. III. that the said
Statute, as well as many others of this century, seems to be only an Ordinance; the difference" (says he) "between an Ordinance and Statute (according to Sir Edward Coke) consisting in this, that the Ordinance wants the consent of
one component part
of the Legislature, which is, in all instances,
that of the Commons.
Now, this seems to be exactly the case of the Act in question, of the 21st of Edw. I.
de malefactoribus in Parcis;
for, though the Act itself declares that it was ordained by the King "at his Parliament,"
Our Lord the King,
at his Parliament
after Easter, the 21st year of his reign, at the instance of the Nobles of his realm, hath granted and commanded to be from henceforth firmly observed,
&c.
and
"at the instance of the Nobles of his realm,"
yet the assent of the
Commons
is not
expressed;
which was very well known, even at that time, to be necessary, as the assent expressed in the Acts of the preceding year sufficiently demonstrates;
viz.
Our Lord the King,
in his full Parliament, and by his common Council,
hath ordained,
&c.
Statute
de defensione juris,
20 E. 1. Again, in the Statute of Vouchers,
By his
common Council
hath ordained,
&c.
Again, in the Statute of Waste,
Our Lord the King, in his
full
Parliament, holden,
&c.
by a
general Council
hath ordained:
so that a proper Form of declaring the
Assent
of the Commons, even at that time, was very well established, notwithstanding that many Statutes are deficient therein, and consequently are exceptionable in point of authority; as for instance, the Statute
de Escheatoribus,
of the 29th year of this reign, seems to be thus defective; for though it is dated very speciously, (like the Act in question,
de malefactoribus in parcis,
)
at the Parliament
of our Lord the King at Lincoln,
&c.
yet it seems only to have been
agreed to
by the Privy-Council, or the King's Council;
—
by
his Council
it was
agreed,
and also commanded by the King himself
(
per Consilium Regis
concordatum est coram Domino Rege, ipso Rege consentiente et illud extunc fieri et observari precipiente,
&c.
) — so that it was apparently enacted and ordained only
by the King and his Council,
without the least mention of the
Consent
of the Parliament, or of the
common Council
of the Kingdom, and seems therefore to have been a mere
Order in Council,
though artfully dated,
"at the Parliament,"
in order to give it the appearance of Law. Sir Edward Coke, in his 4th inst. p. 51, gives several instances of supposed Statutes that had been repealed or disaffirmed, (wanting the Assent of the Commons,) which were nevertheless published and enforced as real Statutes;
viz.
5 R. II. c. 5. stat. 2, touching enquiries of Heresies, and 2 H. IV. c. 15, against pretended Hereticks, giving power to the Bishop, or Ordinary,
to convent before him or
imprison
any person suspected of Heresie;s
and ordaining (contrary to the Laws of God) that "an obstinate Heretick" (or any person whom an ignorant popish Enthusiast was pleased to call so)
shall be
burned before the people;
both which, as Sir Edward Coke remarks, were
disavowed
by the Commons, and (yet) the pretended Acts
printed
(4 inst. p. 51, and 3 inst. p. 40 and 41). Also 2 Hen. V.
cap.
7, (which Sir Edward Coke, by mistake, calls
cap.
6,)
against Preachers (was) disavowed the next Parliament by the Commons, for that
they never assented,
and yet the
supposed
Act (was)
printed.
(4 Inst. p. 51.)
By such notorious
treachery
and
dishonesty
did the Zealots of the Romish Church introduce the papal Tyranny into
England.
Sir Edward Coke, in his 3d Inst. (pages 40 and 41,) clearly proves, from the Parliament-Rolls and other Records, the
fraudulent
introduction of the above-mentioned Act, in the 5th of Rich. II. by a popish Prelate
Sir Edward Coke calls him
"John Braibrook,"
3 Inst. p. 41; but, according to Bishop Godwin, his name was
"Robert Braybrook;"
(
De Praesulibus Angliae Com.
p. 186.) but both of them testify that he was Bishop of London, as well as Lord Chancellor. Among the
blessed
effects of his
pious
fraud the following are repo
ted by Sir Edward Coke, 3d Inst. p. 40. —
By colour of this
supposed
Act,
(5 Rich. II.)
certain persons that held
that Images
were not to be worshipped,
&c. were holden in
strong prison,
until they (to redeem their vexation) miserably yielded before these Masters of Divinity to take an Oath, and did
swear to worship Images;
which was against the moral and eternal Law of Almighty God!
This and many other such instances of hardened Apostacy in popish Professors sufficiently justify our applying to the
papal Tyranny,
in general, that Prophecy of the Apostle Paul concerning the
"Man of Sin,"
that was to be
revealed,
the Son of Perdition, who opposeth and exalteth himself above all that is called God, or that is worshipped; so that he, as God, sitteth in the temple of God, shewing himself that he is God
(2 Thess. ii. 3 to 6)
; and
whom the Lord shall consume with the Spirit of his mouth, and shall
destroy
with the brightness of
his Coming;
(verse 8.)
— O! that all those persons, whose hearts are not yet entirely
seared with the hot iron
of popish Enthusiasm, may duly consider these glaring instances of popish craft in opposition to the Laws of God, and consequently the apparent danger of adhering to that church which has so notoriously perverted the Doctrines of the Gospel; lest they should be found in communion with the Enemjes of Christ at his glorious
Coming!
, who at that time was Lord-Chancellor: And the same learned author thereupon directs us to
mark well the manner of the penning the Act:
for, seeing
(says he)
the Commons did not assent thereunto, the words of the Act be,
It is ordained and assented in this present Parliament, that,
&c. And so it was, being but by the King and the Lords.
The same rule enables us to judge concerning the authenticity of many other ancient Acts, wherein the
Assent of the Commons
is not particularly mentioned, and yet they are published. The constitutions called
Statutum de Bigamis,
for instance, are declared
to have been "set forth in the Parliament
after Michaelmas,"
&c.
Editae fuerunt apud Westm. in parliamento post festum sancti Michaelis,
&c.
(Mag. Char. cum statutis quae antiqua vocantur,
&c.
p. 104, b. Ed. 1556.)
But when we
mark will the manner of the penning the Act,
according to Sir Edward Coke's rule, it appears to be very deficient in parliamentary Authority, though he himself has taken great pains to prove its authenticity. He remarks, that
these words in the 1st chapter (concordatum est per justiciarios et alios sapientes
de Concilio Regni
) prove it to be by Authority of Parliament; for
Concilium Regni,
(says he)
is the Lords and Commons,
LEGALLY CALLED COMMUNE CONCILIUM REGNI.
2d Inst. p. 267.
But, even according to this argument, the word "COMMUNE" is apparently wanting, to make up what he himself allows to be the LEGAL expression for THE LORDS AND COMMONS; and, if we duly consider the words which immediately follow, it must appear, that the
"sapientes de Concilio Regni,"
&c. here mentioned, were only such particular
sapientes
as held
judicial places,
(
qui consuetudines et
usum judiciorum
hactenus habuerunt
); so that the expression cannot, with propriety, be supposed to include the
whole representative Body of the Commons,
as well as the Lords,
&c.
but merely
the Judges,
and such Lords, Prelates, and others, as held
judicial places,
and were of the
King's Council,
mentioned in the preamble,
viz.
In praesentia,
&c.
quorundam episcoporum Angliae, et
aliorum, de Concilio Regis,
which Sir Edward Coke (by what authority I cannot guess) is pleased to call a
Committee of both Houses,
though it can mean nothing more than a meeting of the
King's Privy-Council;
and the same may be said of that second meeting, afterwards mentioned,
"coram Domino Rege et Concilio suo,"
wherein the said Constitutions were again read
(auditae et publicatae)
and
ordered to be ingrossed and observed;
quod in scripturam redigerentur ad perpetuam memoriam, et
quod firmiter observentur:
which (be pleased to remark) is the principal
enacting
or
enforcing clause
of this Act: And, therefore, when we consider that the same was
agreed to,
or
ordained,
by THE JUDGES
as well as others,
(
tam
Justiciarii
quam alii concordaverunt quod in scripturam,
&c.
) we may be assured that the meeting was
not the Parliament,
(in which the
Judges,
as such, have not any vote or voice at all, except that of
advising,
) but merely the
King's Privy-Council:
and therefore Judge
Shard,
as cited by Lord Coke, had, surely, reason on his side, when he,
"beholding the manner of the penning of this Act,"
(compare this with Lord Coke's own Rule, to the same purpose, abovementioned,)
was of opinion that it was no Act of Parliament.
though Sir Edward Coke was pleased to censure him, saying, that
the contrary is holden by many express Authorities, both before and after him.
(2d Inst. p. 267.)
But what Authorities can be equal to the
internal evidence
of the Act itself, according to his own rule,
Mark well the manner of the penning P
&c.
For, though it may have been allowed the force of an Act, in judicial proceedings, as well as in the writings of some respectable commentators, yet this is nothing but the natural consequence of its having been published and printed, without remarks, among the other Acts,
The
undue Authority,
acquired by such impositions, was still more notorious, in the credit that has been given, even by the Legislature itself; to the three other
false
Statutes before-mentioned against (what the Papists-call) Heresy: Two of them are expressly recited, and formally repealed by an Act of Parliament in the the 1st of Edward VI. (cap. 12 §. 3.) as if they had
really
been
Statutes
ordained by the Authority of the whole Legislature; and all the three false Statutes together are recited, acknowledged, and revived, by another Act of Parliament, in the 1. & 2. P. & M. (cap. 6.) and are yet again expressly intitled
Statutes,
and as such are formally repealed by a third Act of Parliament in the 1st of Eliz. c. 1. §. 15. But yet these several great Authorities by no means invalidate the Evidence which Sir Edward Coke has produced, to prove that the said three wicked Ordinances were
really no Statutes.
agreeable to the intention of those who unlawfully promoted it. But Lord Shard declared from the Bench, in the Assises at Winchester, (anno 30th E. 3.) that
this never was a Statute.
Lib. Assisarum, p. 173.
Shard.
Negativa nihil implicat. Et ceo que vous parles del' Statut
de Bigamis,
ceo ne fuit unquam ascun
Statut.
Another objection against this
supposed
Statute is the apparent evil intention of the 5th Article,
de Bigamis,
(from whence it has acquired its title,) which was, to acknowledge a
foreign
popish Law, as if it were already (without interposition of Parliament) of legal
force
in
England,
and needed only some small explanation, with respect to the manner of putting it in execution; an idea this, which all
free
English Parliaments, even in
popish times,
most zealously opposed! But, above all, the
Iniquity
of the
foreign Decree itself,
which is introduced by this 5th Article, affords the most ample argument against the
whole Statute,
as it seems to have been drawn up principally for purpose of enforcing, and smuggling in, amongst other articles, that
diabolical
popish Decretal of Pope Gregory IX. for discouraging lawful
Marriages
of Widows or Widowers! The Marriages of
the Clergy
had been absolutely forbid
As the
"forbidding to marry"
is ranked by the apostle Paul amongst the
"Doctrines of Devils,"
(1 Tim. iv. 1.) so the papal Antichrist, in very early times, began to discourage the
Marriages
of the Clergy: but Pope Gregory VII. alias
Hildebrand,
a Monster in Iniquity, (to prove which Dr. Cave has cited unexceptionable authorities,
Hist. Liter.
p. 535.) more openly
revealed
the man of sin
in the 11th Century, and, amongst other notorious manifestations of most impious Tyranny, "made a Decree" (in 1074) that,
from that time forward, it shou'd no more be lawfull for Priestes
to marrye, &c.
Recon's Reliques of Rome,
p. 32
b.
This was apparently a
contrary Doctrine
to what St. Paul preached, and consequently it subjects the Roman See to the
Anathema
of that Apostle!
Though we, or an Angel from Heaven, preach any other Gospel unto you than that which we have preached unto you, let him be accursed.
Gal. i. 8 & 9.
The Marriage of the Clergy had never before been forbidden except among the worst of Heretics, but had been allowed by the whole Church of Christ, from the time of the Apostles, for above 1000 years, down to this unhappy Century: and, with respect to
Ireland
in particular, Sir Edward Coke informs us, that,
at a Synod holden
in Ireland,
by
St. Patrick,
their Apostle, it was unanimously agreed that
Irish Priests
should have Wives.
4 Inst. p. 356.
about 200 years before, and those who were already married
forcibly separated
from their wives,
Becon's Reliques of Rome, p. 32
b.
(in open contradiction to the Laws of God,) by a Decree of Pope Gregory VII. which was still further enforced by his successors; and the Clergy were compelled at length to submit to that unnatural Tyranny, by a variety of the most unjust and cruel laws and oppressions
See, for instance, the several Decrees of a Council, held at London by Anselm, Archbishop of Canterbury, in 1108, upon this subject, to oblige the Clergy to forsake their
lawful
wives, who were mentioned by the Council as
Concubines,
and were ordered to be delivered up to the Bishops as
Adulteresses,
together with all the goods of those unfortunate husbands, who persisted in their natural affection! Tenth and last Article:
Omnia vero mobilia lapsorum posthac Presbyterorum, Diaconorum,
&c.
(meaning the goods of those who
continued to visit their wives,
)
tradentur Episcopis, et
Concubina,
cum rebus suis, velut
Adultera.
Howel's
Synopsis Canonum, &c.
vol. 1. p. 88.
that satanical malice could possibly devise, in the several ecclesiastical Synods of that and the following century.
But the Decree against
Bigamy
was aimed at the
Laity
as well as Clergy; since every Layman that could
read
was (before) entitled to the
Benefit of Clergy,
when convicted of some particular offences; which privilege was by this Decree taken away from all persons called
bigami,
or who had been twice married successively,
Bigamie (says Sir William Staunford, in his "Plees del Coron." p. 134) "est un
counterplee
a Clergie," (Lambard calls it an
ungodly
and
popish Counterplea,
Eiren. p. 555,
)
s. a dire, que cestui, qui demaunde le privilege de son Clergy, suist espouse a un feme, a tiel lieu, deynz tiel dioces, et que
le dit feme morust,
et ad
espouse auter feme,
&c.
the principal purpose of this new popish Ordinance being to cast an odium and restraint upon
lawful
second marriages, and confound them with the
real
Felony of having two wives at one time. Thus the intention of the Romish Church was apparently
diabolical;
under a false pretence of extraordinary purity, to discourage
lawful Marriages,
and thereby ensnare mankind, through their natural frailties, into
real pollutions:
and it is notorious that the popish tenet of
"forbidding to marry"
is one of the distinguishing
scriptural marks of
ANTICHRIST!
(for I cannot properly call it a Statute)
de malefactoribus in Parcis
into Ireland, with an order to the Chief-Justice of
Ireland,
to enforce it: and he remarks thereupon: —
This note fully proves
(says he)
that it was supposed the King, by his sole authority, could then introduce any
English
Law; and will that authority
(says he)
be lessened by the concurrence of the two Houses of Parliament?
But this by no means invalidates
the justice
of Mr. Molyneux's argument, while
the injustice,
of which he complains, is still continued;
viz.
the inequitable pretension to
bind
the Subjects of
Ireland
by Laws made
without their Assent,
and this even without any exception or just distinction concerning
external
or
internal
Government; for the
Irish
themselves do not deny the propriety of the pretension in the former case. The exertion of royal Prerogative, above-mentioned, was certainly
illegal,
and therefore must be esteemed
a bad precedent;
for Mr. Barrington himself, who cites it, does not pretend to justify it; and I know that he will as readily allow, that one
bad precedent
cannot justify another; so that his
adding
still more precedents of the same kind
adds no weight
to his argument, because the
authority
of
Precedents
must always be weighed and governed by
First-Principles
and
constitutional Law;
otherwise we should be liable to adopt the most dangerous doctrines, since there is nothing
so bad
but that a
Precedent
may be found for it!
The second precedent of this nature, which he has produced for the same purpose, still helps to confirm my observation on the other side of the question: for this precedent is nothing less than the Order of
King Charles the First, in the 3d year of his reign, to the Treasurers and Chancellors of the Exchequer, both of England and Ireland, by which they are directed to increase the duties upon Irish exports; which
shews
(says he)
that
it was then imagined,
the King could tax Ireland by his Prerogative, without the intervention of Parliament.
— Now, the precedent
"shews"
indeed (as Mr. Barrington justly remarks)
that it was then imagined,
&c. that is, it
shews
that this false doctrine
was then imagined
by the King and those wretched Courtiers, who, either through ignorance, or wickedness, or both, betrayed him with their
unlawful
counsels; but it by no means "shews" that such an arbitrary proceeding was really
Law
at that time, any more than it is at present! for the very same volume of Rymer's Foedera, (
viz.
tome xviii.) that contains the above-mentioned precedent, contains also other precedents of the like authority,
which
equally
shew that it was then imagined the King could tax
EVEN ENGLAND ITSELF
by his Prerogative, without the intervention of Parliament.
— See
A Declaration of his Majesty's cleere
intention
in requiring the ayde of his loving subjects in
that way of Loane
The compulsive means, used on this occasion, to extort money from the people, sufficiently demonstrate that
"the way of Loane, which"
(was then)
"intended by his Highness,"
amounted to an
exaction
of the most notorious nature! Many people were imprisoned, and many others pressed into the land and sea service, for refusing to contribute. See Rushworth's Collection, vol. 1, p. 426. Sir Thomas Wentworth (afterwards Lord Strafford) was one of the sufferers on this occasion, for
he was imprisoned
by the Lords of the Council,
for refusing the royal Loan.
Supplement to the new and general Biographical Dictionary, p. 474.
His Majesty
demanded
of the City of London the loan of an hundred thousand pounds.
Rushworth's Collection, vol. 1, p. 419.
If such precedents were to be admitted, or allowed any weight at all, in this argument, the very same reign would afford
precedents
sufficient to render the King of England as despotic as the Emperor of Morocco! In the fourth year of this reign, "the King's Commission" was issued
to the Lord-Treasurer and Barons of the Exchequer, and to the Customers of the Ports,
to collect Tonnage and Poundage without authority of Parliament. — "Know ye, that we, by advice of
our Lords,
" (that is, the
Lords of his Council,
mentioned in the beginning of the Commission,)
declare
our Will,
that all those duties be levied and collected as they were in the time of our father, and in such manner
as we shall appoint:
and, if any person refuse to pay,
then our Will is,
that the Lord-Treasurer
shall commis to prison
such, so refusing, till they conform themselves: and
we give full Power
to all our officers, from time to time, to give assistance to the farmers of the same, AS FULLY AS WHEN THEY WERE COLLECTED BY AUTHORITY OF PARLIAMENT.
Rushworth, vol. 1, p. 669.
Here the Neglect of the
Authority of Parliament
is openly avowed, though the forgetful Monarch was bound under a solemn oath, at his coronation, to maintain the Laws of the land!
which is now intended by his Highness.
Tome xviii. p. 764.
Nay,
"it was then imagined,"
(it seems,) by those
disloyal
persons who falsely called themselves
"the King's Friends,"
that the King could not only
tax
his English Subjects by his Prerogative, but that he could also
seize, imprison, try, and even
HANG
them, by martial Law, without Judge or Jury!
The very same volume of Rymer's Foedera (tome xviii.) affords several authentic
precedents
for delegating such unlimited Power by the King's Commission!
viz
one for the county of Sussex, p. 751; another for the whole county of Kent, p. 763; and a third for the town and county of Southampton, p. 804:
The Commissioners were impowered not only to use
martial Law
"against soldiers or mariners," but also against
OTHER
dissolute persons, joining with them,
or
any of them;
whereby, under
the latter denomination,
a way was opened to render all other persons (besides soldiers and mariners) liable to the uncertain decisions and hasty rigour of martial Law! Any man whatever might be
unjustly
charged as a
dissolute person,
&c. and the
accusation alone,
whether
true
or
false,
was sufficient to divest the person accused of all the privileges of an English subject, at the very time when he stood most in need of them! So that, if the King's Commissioners should happen to dislike any particular person, within the county, or limits of the jurisdiction, expressed in their Commission, it was possible for them to promote
such an accusation,
and thereby render themselves
Judges in their own cause;
since the King's Commission (contrary to his Majesty's most solemn engagement, before God, at his coronation) deprived the
accused
subject of a legal Trial and the due Process of the Law, the only defence of
the innocent,
by substituting an
illegal Process
in lieu of it! And the horror of this monstrous usurpation of power was much increased by the following circumstance, that the Commissioners were expressly authorized, by their Commissions, to
erect
Gallowes
or
Gibbetts,
and
in such places as they shall think fit!
and therefore, as it would be
partial
to admit an
arbitrary precedent
as an evidence on one side of the question, (
i
e.
against
Ireland,
) without weighing, at the same time, the
similar precedents
in the same unfortunate reign, which equally affect the other side of the question, (I mean the Privileges of the English Legislature,) we must necessarily exclude, from the present enquiry, the most distant idea that Mr. Barrington's 2d Precedent,
for taxing Ireland by Prerogative,
can possibly afford the least evidence against the
just Rights
of the Subjects in
Ireland;
for, if
such Precedents
are admitted to prove any thing at all, they prove too much; for they equally "shew that it was
then imagined the King could tax
" and oppress
even England itself,
as well as
Ireland,
by his Prerogative, without
the intervention of Parliament;
and I am very sure that the worthy writer, who unguardedly cited from Rymer the above-mentioned Precedent against
Ireland,
would be as zealous to oppose any such doctrine as myself.
His 3d Precedent is still more destitute, if possible, of legal evidence. —
What would have been the answer of the
English Legislature,
(says he,) in the year 1650, to the late claim of Independency in the Colonies, will appear by the preamble to an Ordinance of the 3d Oct. of that year:
—
Whereas in Virginia, and the Islands of St. Christopher's, Nevis, Montserrat, and divers other islands and places in America, which were planted at the cost, and settled by the people and authority, of this nation, which are and ought to be subordinate to, and dependent upon,
England,
and hath ever since the planting thereof, and ought to be subject to such Laws, Orders, and Regulations, as
shall be made by the Parliament of England;
p. 146.
But, though this was indeed the opinion of what Mr. Barrington calls
the English Legislature
in the year 1650,
yet no just argument can be drawn from thence with respect to the present question, (
viz.
the pretension to bind Ireland without
Representation
or
Assent;
) because it affords as good an argument, as the others above-mentioned, for binding even
England
itself,
without any Representation or Assent at all,
since the
said Legislature
(as it is called) was totally defective in every point that is essentially necessary to constitute an
English Legislature;
for (besides the total suppression of the legal Rights of the Crown to a Share in the Legislature) even the necessary
Assent
of the whole body of the
People
was also excluded, since it is evident that neither the Lords nor the Commons of England were represented in that packed junto of Hypocrites which was
then
called the
"English Legislature!"
for, after the violent seizure of 41 Members of the House of Commons
In Rushworth's Collection, 4th part, vol. 2, p. 1355, we read the names of the Members imprisoned by the Army, which were inserted in
the Proposals and Desires of the Army,
presented that day to the Parliament by Colonel Whaley and other officers; and in Mr. Rushworth's Diary for the next day, Dec. 7, we find the following Memorandum relating to that transaction:
viz.
The Members seized on by
the Army
were this day removed from Mr. Duke's house, (commonly called
Hell,
) in Westminster, WHERE THEY WERE ALL LAST NIGHT, to two inns in the Strand,
viz.
the King's-Head and the Swan, and there
have a guard upon them;
p. 1356.
by the Army, on the 6th of December, 1648, and the forcible exclusion of about
more,
Le 7 de Decembre les Membres des Communes, en se rendant à leur Chambre, y trouverent à la porte en dehors et en dedans une garde qui en empêcha
un grand nombre
d'entrer. Le Comte de Clarendon dit qu'il y en eut
environ cent
à qui on refusa l'entrée.
Rapin, tom. 8, liv. 21, p. 707.
by the same unlawful power, on the following day, (preparatory to the illegal trial and murder of the King in 1648-9,) the Long-Parliament no longer
represented the nation,
but was merely the Representative of a most dangerous
standing Army;
for such the national Militia was then become; the several individuals thereof having, by a constant military Service for a few Years
The orders of the Lords and Commons for raising the militia to oppose the King's commissions of array were dated in 1642. See Rushworth's Collection, part 3. vol. 1. p. 678, 679, 684, 685, 689, and 765.
(
viz.
from four to six Years) acquired a fixt dislike and contempt for those useful employments by which they were formerly enabled (whilst a mere militia) to earn their bread, so that they now acknowledged no profession but that of
arms,
and consequently were now become a
regular standing army
of mercenaries, with a separate interest of their own from the rest of the nation
— Les officiers et les soldats comprenoient bien qu'on vouloit se defaire d'eux,
(that is, the war being at an end, the Parliament was inclined to reduce the number of regular troops by degrees,)
et que la plûpart n'etoient gueres en état d'aller reprendre leur professions, après avoir été quatre ou cinq ans occupez à faire la guerre. Il y avoit dans Parnrée un grand nombre
d' officiers
qui n' étoient avant la guerre que
dis artisans
et qui ne voyoient qu' avec peinc qu'ils alloient être reduits à quitter leur emplois qui leur donnoient de l'autorité, et à reprendre
leurs anciens mériers.
pour se mêler, comme auparavant, dans la foule du petit peuple. Ces gens là, le même que ceux que les independans avoient attirez dans leur parti, étoient disposez à tout entreprendre, pour n'être pas obligez à changer la manière de vie qu'ils avoient menée depuis quelques années. Cromwell donc, et les officiers de son parti, profitant de cette disposition, s' attachèrent à inspirer à l'armée un esprit de mécontentement
contre les deux chambres,
en quoi ils ne réussirent que trop bien.
Rapin, Tom. VIII. p. 579.
; and a
standing army,
by whomsoever paid, must ever be dangerous to constitutional Liberty and Law.
The army were, indeed, the
nominal
servants of the Parliament, but were nevertheless the absolute Lords and sovereign Directors of the same, having ejected whomsoever they thought proper, and thereby modelled the
national Reprepresentative
into a representation only of their own body and party, (as has been said,) so that it ceased from that time to deserve the Name of a
Parliament
or
"Legislature,"
being a mere tool of military power, which was permitted to sit for no other purpose than that of lending a pretended
parliamentary Authority
to the arbitrary measures and wicked resosolutions of an illegal Council of War; as if the mere
Name
of a
Parliament
without the thing itself (a due Representation of the people) was sufficient to authorize and justify the most detestable Despotism! The whole proceedings of the Council of War, from the time the King was feized at Holmby, (though he himself was deceived by their temporizing dissimulation,) clearly proves their fixed intention to proceed to extremities, contrary to the declared sentiments
See the Votes of the Commons on the 28th of April, 1648,
viz.
1. That the Government of the Kingdom should be still by King, Lords, and Commons. 2. That the ground-work for this Government should be the propositions last presented to the King at Hampton-Court; and, 3dly, That any Member of the House shall have leave to speak freely to any Votes, Ordinances, or Declarations, concerning the
King,
&c.
Rushworth's Collect. part 4. vol. 2. p. 1074.
of the former Parliament, as well as of the citizens of
London
Tuesday
June
27, 1648.
This day a Petition from the Lord Mayor, Aldermen, and Common Council of the City of
London
was presented to both Houses of Parliament; the substance thereof, for satisfaction of those that have not seen the Petition, take briefly thus:—That a personal treaty may be obtained betwixt his Majesty and both Houses,
in the City of London,
or some other convenient place, where it may be most for
the honour of his Majesty's royal person,
and
preservation of the Parliament,
as their honours thought fit; unto which treaty they humbly desire our brethren of
Scotland
may be invited; that so according to
the duty of our allegiance,
protestation, solemn league, and Covenant,
his Majesty's royal person, honour, and estate, may be preserved;
the
power and privilege of Parliament maintained; the just Rights and Liberiies of the Subjects restored;
Religion and Government of the Church in purity established; all differences may be the better composed, and a firm and lasting peace concluded; and the union between the two Kingdoms continued, according to the covenant; ALL ARMIES DISBANDED; and all your soldiers just arrears satisfied; the Kingdom's burthens cased, and the laudable Government thereof, by the good and wholesome Laws and Customs, happily advanced.
For this, both Lords and Commons, respectively, thank the petitioners for their good affection to the Parliament, and signify their concurrence in the same sentiments. Rushworth, part 4. vol. 2. p. 1167, and 1168.
in general, and of almost the whole presbyterian party, (including at that time a very great majority of the people,) who were earnestly desirous to maintain the ancient constitution of State, by restoring the King to such a share of
limited Power
as they thought consistent with their own safety: But, alas! the
standing Army
was now become
the ruling Sovereign
of the Kingdom, and was not less zealous to maintain an
unlimited
Authority than the former ruling
Sovereign,
whom they had so lately fought against and imprisoned for the like unlawful pretensions; so that the arbitrary proceedings and injustice of the King, in the beginning of his Reign, were
severely repaid in kind
by proceedings equally arbitrary, illegal, and unjust; as
Oppression
is generally punished by
Oppression,
that even the
injustice
of mankind may demonstrate the
justice
of an all-ruling Providence in the Government of the World!
This mock Parliament, supported by the
standing Army,
held the nation in slavery
J'ai déja dit, que le Parliament n' avoit d' autreappui
que l' Armée.
C' étoit par le
moyen de l' Armé
qu'il tenoit la nation dans
la servitude.
Rapin, tom. 9. p. 57.
from December, 1648, to April, 1653, including the year referred to, as above, for the sense of the then
"English Legislature"
concerning the authority of Parliament over Virginia and the other Colonies.
In the beginning of 1653, the artful Cromwell found himself so well established in his military post of
General,
or
Imperator,
of the standing Army, (for such is the original root both of the name and power of
Emperors,
) that he ventured, by dint of his
military authority,
to turn the despicable mock
Legistature
out of the Parliament-House
Cromwell, —
après avoir concerté toutes choses avec les
principaux officiers,
se rendit au Parliament le 20/30 Avril, accompagné d'un petit nombre
d'officiers et de soldats,
et sans autre préambule il dic aux Membres du Parliament, qu'il venoit mettre fin à leur autorité dont ils avolent fait un mauvais usage, et, que sans deliberer, ils eussent à se dissoudre sur le champ. En même temps
les officiers et les soldats.
entrêrent, et se tinrent à la porte, pendant que les Membres se retiroient hors de la Chambre. A mêsure qu'ils sortoient, Cromwell disoit à l'un, qu'il étoit un yvrogne, à un autre, qu'il etoit un voleur, sans en epargner aucun de ceux qu'il connoissoit pour ses ennemis. Ensuite, il donna à garder la Masse, qu'on porte devant l' Orateur, à un de ses Officiers, et ferma les portes à la clef. Cette action étoit
extraordinaire,
mais elle ne l' étoit pas plus que celle que
le General Fairfax
avoit fair peu d'années auparavant, lors qu'il avoit fait
chasser de la Chambre et emprisonner les Membres
QUI N'ETOIENT PAS AGREABLES à l'Armée.
Ibid. p. 59.
, and, by the same redoubtable authority, chose another junto, consisting of 144 Members,
without consulting the Nation at all,
that the new
nominal
Parliament might be still more obedient in
representing
and fulfilling the
Will
and
Pleasure
of its
military
Constituents: This wretched Assembly, though in the highest degree despicable in itself, was nevertheless invested with
sovereign
AUTHORITY
Ces nouveaux
Souverains
s'étant assemblez au jour marqué, Cromwell les harangua, et, après avoir fini son discours, il leur delivra un instrument en parchemin, signé par lui même et par
les principaux officiers
de l' Armée, par lequel on leur deséroit
l' Autorité Souveraine.
Cet ecrit portoit, que
tous les Sujets d' Angleterre, d' Ecosse, et d' Irlande,
étoient tenus de leur obéir, jusqu'au 3-13 de Novembre de l'année suivante 1654, c'est à dire pendant un an et quatre mois, &c.
Ibid. 61.
over
England, Scotland,
and
Ireland,
by an instrument drawn up expressly for
that purpose,
and signed by the
General
(Cromwell) and
the principal Officers of the Army;
so that we have here an undeniable precedent for governing
England, Scotland,
and
Ireland,
without the
Representation
and
Assent
of the
People
of any of these Kingdoms; and yet no one will pretend to say, that the same can justify any future attempts to deprive either the people of England, Scotland, or even of
Ireland,
of their just right to a free and frequent
Representation
in Parliament. Now,
"the English Legislature"
of 1653, (for the Title is not less due than it was in 1650,) having continued their sittings for about five months, dissolved themselves, and returned the instrument of their
Sovereignty
to the
General
and his
military Council.
On the 1
/22 of December, 1653. Ibid. p. 63.
And, two days afterwards, the
Council of Officers,
by virtue of this devolved authority, which the sham Parliament (of their own creating and appointing) had re-delivered into their hands, were pleased to declare, that, for the future, the
Government of the Republick
Deux jours après,
le Conseil des Officiers,
en vertu de l'autorité que le précédent Parlement
(meaning the junto of 144 persons,
constituted and chosen merely by the General, or by the Army
)
venoit de lui deferer, declara, qu'à l'avenir, LE GOVERNEMENT DE LA REPUBLIQUE
resideroit
DANS UNE SEULE PERSONNE, savoir, dans celle d'Olivier Cromwell,
General des Armées
d'Angleterre, d'Ecosse, et d'Irlande; et qu'il auroit le tître de
Protecteur des trois Royaumes,
et qu'il seroit assisté d'un conseil de 21 personnes.
Rapin, Tome ix. p. 64.
(plainly meaning, as appears by the event, not only the sovereign
executive
Power, but also the full and supreme
legislative
Power of the Republic, or three united Kingdoms, for a certain time)
Viz.
from the 16/26 Dec. 1653, to the 3/13 Sept. 1654, as appears by the 1st and 8th Articles of what this
military
Council were pleased to call
"an Act of "Government,"
thereby proving their own usurpation of the
supreme legislative Authority;
which Authority they were afterwards pleased to lodge in the
single person
of their
General,
by the 7th and 8th Articles of the said
"Act of Government."
Ibid. p. 64.
should
reside
in
one single person,
namely, their own
military Commander, General Cromwell,
whom they invested with the title and power of Protector of the three Kingdoms. I have thus far pursued the history of those arbitrary times, as well to shew the danger of keeping a
standing Army,
I might have saved myself much trouble, upon this point. had I been aware, when I wrote the foregoing pages, that the danger of keeping
standing Armies
had been so well enforced by Mr. Quincy, in his Observations on the Boston Port Bill. That ingenious and sensible Writer has very judiciously collected a number of unquestionable examples upon the subject, which, together with his own pertinent observations upon them, demand the most serious attention not only of every
loyal
English Subject, at this time, but of all friends to mankind in general.
and of permitting a
national Militia
to become such,
The example of military Tyranny, which I have already recited, demonstrates the great danger of permitting any part of a
national Militia
to be absent, longer than is absolutely necessary, from the particular
county
or
district
to which it properly belongs; for, as soon as
Militia-Men
begin to depend upon their
Pay.
or
"Solde,"
"Dictionnaire militaire,"
p. 417.
instead of their
industry
and the regular daily employments which they followed at home, they cease to be the constitutional defenders of their country, and become mere
Soldiers ("Soldats")
or Mercenaries: and therefore, as it is now reported that great pains are, at this time, taken, in the several American Colonies, to renew the ancient discipline of the
Militia,
in their respective provinces, it is a matter of great consequence, (as well for their own
internal
happiness and liberty, as for the preservation of peace and union with the mother-country, and a continuance of that due constitutional subjection, to
the Crown of Great-Britain,
which is the true interest of all parties, as it connects every branch of the empire, and insures
mutual
confidence and protection against
foreign
enemies,) that no persons whatever be allowed the rank of
Officers,
in any of their provincial Regiments of
Militia,
unless they have a competent fortune, either in
Land
or Money, to enable them to live comfortably, without military pay, lest they should ever entertain a
separate Interest
from that of the Public, and, like the degenerate
Militia
under Cromwell,
enslave
their country! Even a
common Militia-Man
is not properly qualified for that
public Trust
(for such it is) unless, from his situation in life, or as the master of a family, he has some permanent interest in the welfare of the community.
as to demonstrate the insufficiency and
illegality
of the
Precedents
which have been cited to justify the fatal
pretension
of England to govern
Ireland,
and the other Colonies, without the
Representation
and
Assent
of the respective inhabitants; for we might as well enquire
what would have been the answer of the
English Legislature
in the year 1653,
(when the
whole Legislature
was comprised within the narrow compass of Cromwell's own doublet,) as "
in the year
1650," to which this learned writer has referred us; since the authority of the
nominal
Legislature in 1650 was entirely
illegal,
as well as that in 1653, both of them having been set up and maintained by the same unconstitutional arbitrary power; and both of them totally void of the indispensable
Representation
of the people: for though the wretched remains of the Long-Parliament in 1650 (being about 80 Representatives or Members, instead of 513 that had been elected
Ainsi ce Parlement, qui dans son commencement avoit été composé du Roi, d'une Chambre d'environ six-vingts Seigneurs, et d'une Chambre des Communes, où il y avoit
cinq cens treize Députez,
se vit reduit à une Chambre des Communes composée d'
environ quatre-vingts Membres,
dont il y en avoit très peu qui, au commencement de ce Parlement, eussent cinq-cens livres sterling de rente. Cependant ces membres, quoiqu'en si petit nombre, s'attribuoient le
nom de Parliament,
et agissoit comme ayant réuni, dans leur corps, le pouvoir qui avoit auparavant residé dans le Roi, dans los Seigneurs, et dans les Communes. Cela pourroit paroître fort étrange, si on n'étoit pas déja insormé
de ce qui s'étoit passé, et de la terreur que
L'ARME'E
inspiroit à tout le monde.
Rapin, tome ix. p. 4.
at the beginning of that Parliament) were indeed chosen by a small part of the people of England, yet the legal
Representation,
even of that small part, was
out of date
and void, from the length of time that the said Representatives had continued without Re-election, which was about ten years; whereas it is well known that the due effect, or
virtue,
of popular
Representation,
was formerly supposed to be incapable (like some
annual
fruits) of being so long preserved in useful purity, without
a seasonable renewal,
The sensible and patriotic author of the
Letters from a Farmer in Pennsylvania to the Inhabitants of the British Colonies (1774),
remarks, in a note on page 103, that,
the last
Irish
Parliament continued
thirty-three years,
that is,
(says he,)
during all the late reign. The present Parliament there has continued from the beginning of this reign, and probably will continue
(says he)
to the end!
This is indeed, as he justly calls it, a most
pernicious particularity,
it being a greater defect in the constitutional Liberties of
Ireland
than any other that I ever heard of; and, as it is apparently contrary to the intention and legal constitution of Parliaments, must necessarily reflect the greatest dishonour on those persons, whoever they are, that have introduced this monstrous infringement on the natural Rights of the
Irish
Subjects.
These excellent Letters, which contain much seasonable instruction, are said to be written by John Dickinson, Esq. the same eminent Author to whom thanks were most deservedly given, by the Committee for the Province of Pensylvania, on the 21st of July last,
for the great assitance they had derived from the application of his eminent abilities to the service of his country, in
(another) "performance," since published, intitled, "A new Essay" (by the Pennsylvanian Farmer)
on the constitutional Power of Great-Britain over the Colonies in America,
&c.
And the said Committee, with great justice and propriety, recommended that performance,
as highly deserving the perusal and serious consideration of every friend of liberty,
&c.
from time to time; so that our more prudent Ancestors (imitating nature) required also an
annual
Sir Edw. Coke, in his 4th Inst. p. 9, speaking of "the matters of Parliament," informs us of the reasons usually expressed in the writs for calling a new Parliament; as
pro quibusdam arduis urgentibus negotiis, nos statum, et desensionem regni nostri Angliae, et Ecclesiae Anglicanae concernentibus quod dam parliamentum nostrum,
&c.
teneri ordinavimus,
&c.
And he adds, in the next paragraph, "Now, for as much" (says he)
as divers Laws and Statutes have been enacted and provided for these ends aforesaid, and that divers mischiefs in particular, and divers grievances in general, concerning the honour and safety of the King, the State, and defence of the Kingdome, and of the Church of England, might be prevented,
an excellent Law
was made, anno 36 Edw. III. c. 10. which,
being applied to the said Writs of Parliament,
doth, in a few and effectual words, set down the true subject of a Parliament in these words:
For the maintenance of the said articles and statutes, and redress of divers mischiefs and grievances, which daily happen,
A PARLIAMENT SHALL BE HOLDEN EVERY YEAR, as another time was ordained by a statute.
Which Statute, here referred to, was made in the 4th year of the same reign, cap 14.
Item, it is accorded, that a Parliament shall be holden EVERY YEAR ONCE,
and more often if need be.
But Sir William Blackstone supposes that the King never was
obliged, by these Statutes, to call a
new
Parliament
every year;
but only to permit a Parliament to sit annually for the redress of grievances, and dispatch of business,
if need be.
(1 Com. c. 2, p. 153.)
It is too true, indeed, that our Kings, in general, did not think themselves "
obliged,
by these Statutes," (as they ought in conscience to have been, for the safety of their souls,) "to call
a new Parliament every year:
" nay, it is certain that many of them would never have called a Parliament at all, had they not been
"obliged"
by necessity and the circumstances of the times. But by what authority could a representative in one Parliament take his seat in the
next annual Parliament,
without
reelection,
before any laws were made for lengthening the duration of Parliaments? And besides, if the King did "
only permit
a Parliament to sit annually,"
&c.
by what authority could the Parliament be convened at all, under such a circumstance, seeing that a
mere permission to sit
excludes the idea of a prorogation from year to year? However, the learned Commentator himself very justly observes, in a preceding page, (150,) concerning "the manner and time of assembling" that the
Parliament is regularly to be summoned by the King's
Writ
or Letter, issued out of Chancery.
And it is well known that these Writs are not addressed to the knights, citizens, and burgesses, elected for any
former
Parliament, but to
the Sheriffs alone,
to cause
Kinghts, Citizens, &c. to be elected;
for, when the said Acts were made, such an absurdity in politics had never been conceived in England, as that of entrusting the
Representation
of the people, for
a term of years,
(as at present,) to the persons elected! On the contrary, when the business of each Sessions was finished, the Parliament, of course, was at an end; and therefore Lord Coke did not speak in vain, when he mentioned
"the excellent Law"
(
viz.
the Act for
annual
Parliaments)
"being applied to the said Writs of Parliament,"
&c. before recited.
A man of so much good-sense, learning, and judgement, as Sir William Blackstone is master of, must be well aware of the pernicious effects of investing the Representatives of the people with a legislative power, beyond the constitutional term of A SINGLE SESSION, without
Re-election;
and therefore I cannot but be surprized at the unguarded manner in which he has expressed himself in his Comment on the two
excellent Statutes
of Edward III. for
annual
Parliaments;
viz.
that the King is not,
or ever was, obliged by these Statutes to call a
new
Parliament every year,
&c.
He has caused the word
new
to be printed in
Italies,
as if he meant thereby to insinuate, that the Legislatures of those early times were not unacquainted with our modern idea of conferring on the popular Representatives a kind of
continued senatorial dignity,
without
Re-election,
for several years together; whereas he certainly must have known that this corrupt
modorn
practice has produced a
new order
of men amongst us a most dangerous increase of aristocratical power, which was entirely unknown to our Ancestors in the glorious reign of Edward III. If he could shew that there
ever
was a Parliament, in those times, that was
not a
NEW
Parliament,
his Comment might be justified! But it is notorious that Writs were issued to the Sheriffs, for
new
Elections, almost
every year
during that whole reign: The Writs, for the most part, are still preserved with the Returns upon them. In the catalogue of Election-Writs, which Prynn has given in his
Brevia Parliamentaria Rediviva,
p. 4 to 6, there is an account of Writs issued for
new
Elections in every year of that King's reign, between his 34th (when the last Act for annual Parliaments was made) and his 50th year, except 3,
viz.
the 40th, 41st, and 48th years; in which years the Records of Summons to the Prelates and Lords of Parliament are also wanting, as appears by Sir William Dugdale's
perfect Copy of Summons to Parliament, of the Nobility,
&c.
And yet this affords no absolute proof that Parliaments were not held
in those very years
for which the Writs are wanting; because the bundles of Writs for the said years may have been lost or mislaid. The only wonder is, that more have not been absolutely lost, when we consider the very little care that had been taken of them; for Prynne found many of these Writs dispersed amongst a vast miscellaneous heap of other records on various subjects, (as he himself relates in his Epistle-Dedicatory to King Charles II. of his
Brevia Parliamentaria Rediviva,
) calling the said heap a
confused Chaos,
under corroding, putrifying cobwebs, dust, and filth, in the darkest corner of Caesar's Chapel in the White Tower, as
mere useless Reliques not worthy to be calendred,
&c.
And, in page 103 of that same work, he speaks of 117 Bundles of Writs, whereof 97 had only been then
lately
discovered, filed, and bundled, by himself: "But many of these 117 Bundles" (says he)
are
not compleat,
above half or three parts of the Writs being either rotted, consumed, maymed, torn, or
utterly lost,
through carelessness, wet, cankers, or other casualties; and some of them have not above two, three, or four Writs, and one or two but one Writ and Retorn remaining.
But that there were really Writs for Parliaments, even in those
three
years, which appear to be wanting, at least in
two
of them, is very certain; because it was in the 40th year of this reign, as Sir Edward Coke informs us, (4 Inst. p. 13,) that the Pope demanded homage for the kingdoms of England and Ireland, and the arrears of revenue granted by King John to Pope Innocent III.
whereupon the King, in the
same year, calleth his Court of Parliament,
In this Parliament it was unanimously agreed, by the Prelates, Dukes, Counts, Barons, and the
Commons,
("et
la Common,
" and again,
"at Communes,"
)
that the said King John, nor no other, could put himself, nor his Realm, nor his People, in such Subjection, without
their Assent,
('sans assent de eux;') and, if it was done, it was done without their Assent,
(that is, without the Assent of the
Commons,
for the Assent of the Barons was expressed in the Charter,) "and contrary to his Oath at his Coronation" P. 14. Whereupon Lord Coke remarks, in the margin, that
no King can put himself, nor his Rea'm, nor his People, in such Subjection, without Assent of the
Lords and Commons in Parliament,
&c.
&c. as Sir Edward Coke proves from the Parliament-Rolls of that year, No . 8, remarking, at the same time, that the Act then made was "never yet printed." See the margin, 4th Inst. p. 13.
And it appears that a Parliament was held also in the 48th year of this reign, because supplies were in that year granted to the King by Parliament, as related by Sir Richard Baker, in his Chronicle, p. 173,
viz.
in his eight and fortieth year,
IN A PARLIAMENT, is granted him a 10th of the Clergy, and a 15th of the Laity.
So that there is but
one
year, out of so many, in which we cannot trace the meeting of the annual Parliaments: And annual Writs for
new
Elections were regularly issued for the first 18 years of the following reign, (as appears by Prynn's
2d part of a brief Register and Survey of the several kinds and forms of parliamentary Writs,
pages 116 and 117,) till Richard II. (that wretched perjured monarch) had rendered himself
absolute.
His arbitrary proceedings very soon afterwards occasioned his own loss of Power, and total Ejectment from the Throne; so that, notwithstanding his boasted
Firmness
in executing his favourite Measures, he was at last reduced to the most abject acknowledgements of his own unworthiness to reign.
After considering these unquestionable evidences of the issuing Writs
annually
for
new
Elections, it will be difficult to comprehend the meaning of Sir William Blackstone's Comment on the said two Acts for
annual
Parliaments:
Not that he (the King) is, or ever was, obliged by these Statutes to call a
new
Parliament every year; but only to permit a Parliament to sit annually for the redress of grievances and dispatch of business,
if need be.
— These last words
(says he)
are so
loose and vague,
that such of our monarchs as were enclined to govern without Parliaments, neglected the convoking them, sometimes for a very considerable period, under pretence that there
was no need of them,
&c.
But
"these last words"
are not
so loose and vague
as either to justify his own explanation of the said Statutes, (
viz.
not
to call a
new
Parliament every year, but only to
permit
a Parliament to sit,
&c.
) or to excuse, in the least degree, the criminal neglects of those depraved monarchs who were inclined to govern without them: for the words,
"if need be,"
cannot, according to the most obvious sense of the Act wherein they are found, be applied to the main purpose of the Act, (the holding
annual Parliaments,
) but merely to the remaining part of the sentence,
viz.
and more often:
that is, "and more often, if need be." The Order,
that a Parliament shall be holden
EVERY YEAR ONCE,
is absolute, and the discretionary power, expressed in the words
"if need be,"
relates apparently to the calling Parliaments
"more often:"
for, if the said discretionary words,
"if need be,"
could, with any propriety, be applied to the whole sentence, the Act itself would have been nugatory; which could never be the
intention
of the Legislature: but the true meaning and sense of the Legislature is very clearly proved by the histories of those times: for it is manifest, not only that
new
Representatives were elected
every year
(with only one exception) for a considerable number of years after the last of the said Acts was made, (which confirms the main purpose of the Acts,
viz.
the holding
annual Parliaments,
) but it is also manifest, that Parliaments were frequently held
"more often"
than once a year;
Writs were issued for electing 3
new
Parliaments in the 6th year of Edw. III. 2 in his 11th year, 3 in his 12th year, and even 4 in his 14th year; and there appear to have been 2
new
Parliaments in the 7th of R. II. See
Prynne's Brevia Parliamentaria Rediviva,
p. 5 & 6.
which amply confirms also what I have before said, concerning the meaning of the discretionary power, expressed in the said Act, by the words
"if need be."
These very frequent Elections (sometimes two, three, and four, times IN ONE YEAR) sufficiently prove that the power, delegated by the people to their Representatives, continued no longer in force than during the Session of the particular Parliament to which they were summoned; which being
"once determined,"
(says Prynne, 1st part of Brief Register,
&c.
of Parl. Writs, p. 334.)
they presently ceased to be Knights, Citizens, Burgesses, Barons, in any succeeding Parliaments or Councils, unless newly elected and retorned to serve in them, by the King's
NEW
Writs, as our Law-Books
(referring to 4 Ed. IV.
f.
44. Brook, Officer, 25. 34 Hen. VIII, c. 24.)
and experience resolve,
&c. And therefore Judge Blackstone's insinuation, against the calling of a
new
Parliament, has no real foundation: for, if it was the intention of the Legislature, in the two Acts abovementioned, that the King should ever summon
any Parliament at all,
they must necessarily be understood to mean a
new
Parliament on all occasions;
i. e.
not only that the regular Parliaments, which they ordained
to be
holden every
year once,
should be
new
Parliaments, but those also that should be summoned upon any extraordinary unforeseen occasions; which is sufficiently expressed in the 1st of the said Acts, by the words,
and more often, if need be.
The meaning of the Act is
unquestionably
proved by the actual issuing of writs, to the Sheriffs, for electing Knights, Citizens,
&c.
for
two, three,
and sometimes
four new
Parliaments,
in one year,
as mentioned above: And if any person should object, that such
very frequent Elections
must be attended with insuperable difficulties and inconveniences, we may quote the experience of all ancient times, as affording ample and sufficient proofs to the contrary;
there being not above two or three cases of elections questioned, or complained of, from 49 Hen. III. till 22 Edw. IV.
(that is, more than 200 years.)
for ought that appears by the Retornes or Parliament-Rolls, and NOT SO MUCH AS ONE DOUBLE RETORNE OR INDENTURE, wherewith all the
late
Bundles; or Writs, are stored, and the House of Commons and
late
Committees of Privileges pestered, perplexed, to the
great retarding
of the more weighty public affairs of the King and Kingdom.
Prynne, Brevia Parl. Rediv. p. 137.
This enormous evil, the retardment of business, by undue Returns, will not (I may venture, without the spirit of prophecy, to assert) be remedied by the
new Regulation
for that purpose. The Commons were never (in ancient times of Freedom) esteemed the proper Judges of their own Elections, but the
King
alone, that is, in his
limited
judicial capacity, by his Justices and his sworn Juries, in the Courts of Common-Law. If my countrymen will seriously consider all these points, they must be convinced that the only sure method of healing the alarming distempers of our political Constitution
Viz.
the enormous national Debt; the numerous Pensions; the secret parliamentary Influence; a standing Army of near 100 Battalions of Foot, besides Caval
y, in time of Peace I
&c. &c. &c.
which must render the
Estates
and
Property
of individuals precarious and insecure, or finally EAT THEM UP with
growing burtbens,
if these fatal symptoms of the most dangerous
political consumption
are not speedily checked and thrown off, by the wholesome prescriptions of
a free and equal Representation of
THE PEOPLE.
is to restore to the people their ancient and just Right to elect a
new
Parliament, "
every year once,
and
more often if need be,
" whatsoever Judge Blackstone may think of it!
No Parliament could have any right to deprive the people of this inestimable Law, unless the Representatives had expressly consulted their respective constituents upon it; as the alteration was of too much moment to be intrusted to the discretion of any
Representatives
or
Deputies
whatsoever, being infinitely more important than
any new devi
e,
moved on the King's behalf, in Parliament,
for his aid, or the like;
for the most essential and fundamental Right of the
whole body of the Commons
(I mean the
Principals,
not the
Deputies
or
Agents
) was materially injured by the fatal change, and the people's power of controul, for the general good of the kingdom, was thereby apparently diminished! so that, if it is the duty of Representatives (even in
"any new device"
of mere
aid, or the like,
) to consult their Constituents, how much more, upon the proposal of so material an alteration in the Constitution, ought they to have answered, that,
in this new device, they
DARE NOT AGREE WITHOUT CONFERENCE WITH THEIR COUNTRIES!
These are the words of Lord Coke, who mentions them as the proper answer,
when any new device is moved,
&c. and he adds,
whereby it appeareth" (says he) "that SUCH CONFERENCE
is warrantable by the Law and Custome of Parliament,
4 Inst. p. 14
; so that no
Representative
can be justified (according to
"the Law and Custome of Parliament"
) who refuses to receive the Instructions of his Constituents, notwithstanding that several very sensible, worthy, and (I believe) sincerely patriotic gentlemen have lately declared themselves to be of
a contrary opinion;
but, when they peruse the several authorities which I have cited, concerning the absolute necessity of
a very frequent appeal
to the sense of
the whole body of the people,
I trust, in their candour and love of truth, that they will alter their sentiments.
renewal of their
parliamentary Representation,
as being necessary for the maintenance of public virtue.
Thus the third Example, given by this learned gentleman, for taxing
Ireland
and
Virginia,
&c. without the assent of the respective inhabitants, is manifestly
illegal;
since it must appear, that what he calls
the English Legistature,
in the year 1650,
was totally void of every essential and legal qualification to, render it worthy of so distinguishing a title: but, supposing that
the English Legistature, in the year 1650,
had been a legal and constitutional Parliament, yet the Resolutions he has mentioned would have been totally
illegal,
and amount to no more than a mere vain assertion, as void of
Law
and
Reason
as it was really of
Effect;
which is proved by
the
ANSWER
of the English Legislature,
at Virginia,
(then representing
the People
of that province,) to the unreasonable pretensions, beforementioned, of the
mock Legislature
at London; for otherwise, if we were to consider
what would have been
THE ANSWER
(or rather what
really were
THE CLAIMS) of the
one Legislature,
without considering, at the same time, the
real
ANSWER of
the other,
to such
vain
and
unjust
pretensions, we should lay ourselves open to the charge of
partiality!
The judicious Author of a late
Apppeal to the Justice and Interests of the People of Great-Britain, in the present Disputes with America,
has reported the Answer of the
Virginian Legislature
on that occasion.
Upon the dissolution of the Monarchy,
(says he,)
the Commonwealth dispatched a Governor, WITH A SQUADRON, to take possession of Virginia. He was
permitted
to land,
upon Articles,
of which the following is one, and
decisively shews what were their original ideas of their Rights.
Article 4th. VIRGINIA shall be free from all taxes, customs, and impositions, whatsoever, and none shall be imposed on them WITHOUT CONSENT OF THE GENERAL ASSEMBLY.
An Appeal,
This little tract contains a great dear of intelligence and sound reasoning concerning the natural Rights of mankind, and is highly worthy the perusal of every good citizen who desires information concerning the present differences with the British Colonies: and, upon the same occasion, the clear and unanswerable arguments of another able writer also, who signs himself
"Free Swiss,"
must not be forgot: The
title
of the work, last mentioned, seems indeed to be the
only
exceptionable part of it;
viz.
Great-Britain's Right to tax her Colonies, placed in the clearest light, by a Swiss;
for a
Right,
without a just foundation, cannot with
propriety
be intituled
"a Right,"
nevertheless he has, most certainly,
placed in
the clearest light
the
impropriety
of any such claim upon the Colonies.
&c.
p. 29.
I have dwelt much longer upon these
three Precedents
(cited by the Honourable Mr. Barrington)
against Ireland,
than I at first intended; but the several different subjects, to which I was naturally led in the examination of them, are of so much constitutional importance, and so necessary to be known to every Englishman, that I hope I may be excused for having, as they occurred, enlarged upon them, in the several Notes which I have added to my Text.
And, with respect to the
three Precedents
themselves, I flatter myself that every impartial Reader, who carefully considers what has been already said upon them, will freely pronounce them
illegal,
and totally unworthy of being allowed the least weight or consideration, as
Precedents,
against the
Independence
of
Ireland,
since they are equally capable of being retorted
as Precedents
for enslaving even
England itself:
but I must therefore repeat what I have before declared, in p. 141 and elsewhere, that I am very sure the worthy Writer, who unguardedly cited them, will be as zealous to oppose any such doctrine as myself; and I believe that I may farther assure myself, that this learned Author will not be displeased or offended with the freedom of these remarks upon his Work; for, though I have not the honour to be personally acquainted with him, yet I am sufficiently acquainted (by other parts of his Writings) with the general benevolence and rectitude of his intentions, and also that he is an admirer and fast friend to our
constitutional Liberty
(which plainly appears in many other parts of his useful Work) as well as myself; so that any corrections,
on that side of the question,
will be taken (I dare say) by him as they were meant by me, that is, in good part, and without the least ill will: and his Work (I speak of it in general) has very deservedly acquired so much esteem and credit in the world, that I could not, without great injustice to the subject before me, permit any arguments therein, upon the point in question, to remain unanswered.
The same observation, I am inclined to think, is equally applicable, as well to the candour and disposition, as to the writings, of Sir William Blackstone, whose very learned and useful Commentaries must also be strictly examined, upon this point, before I conclude my Declaration: and, had the other great and eminent writers (Lord Coke, Lord Chief Justice Vaughan, Judge Jenkins,
&c.
) whose opinions, upon the present subject, I am obliged also to call in question, been still alive, I should have thought myself equally sure of their benevolence and forgiveness, if I except Serjeant Mayart; because the undeserved contempt, with which he has treated Sir Richard Bolton, (the learned Author whom he attempted to answer,) prevents my entertaining so charitable and friendly an opinion of him as I do of the rest.
Though I have now drawn these remarks concerning the Constitution of
Ireland
to a much greater length than I at first proposed, yet I must not conclude whilst any material assertions of great authority remain unanswered. Several of Sir Edward Coke's objections, on this head, have already, towards the beginning of this 2d part, been proved (I hope) to want
foundation:
but there still remains to be considered a further doctrine, on the same point, advanced by him in
Calvin's Case,
which, I trust, will appear to be
equally unjust,
though
founded
on the opinion of
all the Judges in England!
"In Anno 33 Reg. El." (says he)
it was resolved, by
all the Judges in England,
in the case of Orurke,
an Irishman,
who had committed. High Treason
in Ireland,
that he, by the Stat. of 33 Hen. VIII. c. 23. might be indicted, arraigned, and tried, for the same,
in England,
according to the purview of the Statute.
7 Co. 448.
But this doctrine, notwithstanding the great authority with which it is here delivered, is obnoxious to a
fundamental Right of the Subject,
the
Trial by a Jury of the
VICINAGE,
or of
Neighbours to the Fact,
which is due to every private person in the British Dominions, according to the ancient Laws and Customs of this realm; otherwise the government would cease to be
limited,
and thereby would cease to be
lawful!
So that if Sir Edward Coke had been as much upon his guard, when he quoted this (
"Resolution of all the Judges,"
as he was when he made his Remarks on that wicked Act of Parliament, in the reign of K. Hen. VII. by which also the
fundamental Right of Trial by Juries
was violated, he would neither have mentioned that Resolution of "all the Judges," or even the Act itself, without guarding against the pernicious effects of such an unconstitutional doctrine, by a proper censure, as he did in the former case.
"It is not almost credible to foresee" (says he)
when any when any
maxim
or
fundamental Law
of this realm
is altered,
(as elsewhere hath been observed,) what
dangerous inconveniences
do follow; which most expresely appeareth by this
most unjust and strange
Act of 11 Hen. VII. for hereby not only
Empson
and
Dudley
themselves, but such justices of peace,
(corrupt men,)
as they caused to be authorized, committed most
grievous
and
heavy oppressions
and
exactions,
grinding of the face of the poor subjects by penal laws,
(be they never so obsolete or unfit for the time,)
by
information only,
without any presentment or
Trial by Jury,
being the antient
Birthright of the Subject,
but to hear and determine the same
by their discretion,
inflicting such penalty as
the Statutes not repealed imposed,
&c.
4th Inst. c. 1. p. 41.
And afterwards he adds:
This Statute of 11 H. VII. we have recited, and shewed
the just inconvenience thereof,
to the end,
that the like
should never hereafter be attempted
in any Court of Parliament.
And that others might avoid THE FEARFUL END OF THESE TWO TIME-SERVERS,
Empson
and
Dudley.
Qui eorum vestigia insistunt, eorum exitus perhorrescant.
(ibid.)
But, though these two wretched Judges were
hanged
for their
time-serving,
yet it appears, by this account of Lord Coke, that, when they presumed to dispense with the interposition of
Juries,
they acted by the
express Authority
of a
Statute,
or
Act of Parliament;
and, though they were
Time-servers,
so far as to acquiesce (contrary
to their Duty, as Judges
) in enforcing that wicked and unconstitutional Statute, (which exceeded the due bounds to which the English Legislature is necessarily
limited,
) yet, it seems, they
adjudged no penalties,
in consequence thereof, but such as
the Statutes, not repealed, imposed.
And it is plain, therefore, that the crime of those two Judges (against which Lord Coke mentioned
the FEARFUL END
of those two time-servers,
as a warning to all future
JUDGES) consisted in allowing
the force of Law
to a wicked unconstitutional
Act of Parliament,
by which
a
FUNDAMENTAL LAW
of this realm
(was)
"altered;"
so that their
crime
was exactly parallel to the (equally
criminal
) resolution of
"all the Judges in England,"
in the case of
Orurke
the
Irishman,
heforementioned, (which was, in like manner, founded on an express Act of Parliament,
viz.
33 Hen. VIII. c. 23.) and parallel also to the crime (for it must be so esteemed) of
all the Judges of England,
when they "resolved," in
Sir John Perrot's Case,
that,
for a Treason done in
IRELAND,
the offender may be tried, by the Statute
35 Hen. VIII. IN ENGLAND, because the words of the Statute be,
All Treasons, committed out of the Realm of England,
— and IRELAND is out of the Realm of
England,
&c.
3d Inst. p. 11.
But the Judges, in both these cases, were quite as
inexcusable
as the two
time-servers,
Dudley and Empson; for, if the real
Intention
of the Legislature, by the said Acts of 33 and 35 Hen. VIII. had been so general as to include all places whatever,
out of the REALM
of England,
without leaving room for pleading a
legal
exception, in behalf of those territories wherein the laws, liberties, and constitution, of the Realm of England were already established, the said Judges ought to have known that
a fundamental Law of this Realm
was thereby
"altered,"
and consequently that they incurred the risk of being HANGED, by some future administration, (like their
time-serving
predecessors,) for
presuming
to enforce such
unconstitutional Acts of Parliament,
by which, (according to the
just
Remark of the
same
great Reporter on a former Act,
viz.
11 H. 7.)
a fundamental Law of the Realm
(was)
altered;
whereas, they really might have attributed a constitutional meaning to the said Acts, by duly distinguishing those
They might have alledged, that if an ambassador, sent from this kingdom to France, Spain, or to any other foreign State,
out of the Dominions
of the imperial Crown of Great-Britain, should notoriously betray his King and Country, and plot their Destruction, he might
legally
and
constitutionally
be punished according to the
letter
and
meaning
of the said Acts of Parliament; and also that any other British Subject whatsoever, that is, in like manner,
guilty of Treason
to his King and Country, during his residence in a foreign realm, may be treated accordingly; because all men certainly are accountable to their country for any such Treason; and, as they cannot be tried in the foreign realms, where the offences were committed, it is reasonable and just to suppose, that they may be tried in
England,
by an impartial Jury, though the same a
e not
"neighbours to the fact,"
nor impannelled
de vicineta,
that is, from the neighbourhood where the offence was committed; for, though this circumstance is
essentially necessary to the Legality of a Jury
in every other case, yet the law does not require
impossibilities,
and it may therefore (perhaps) be
legally dispensed with,
when it is apparent, from the nature of the case, that such an unexceptionable Jury cannot be obtained, and yet that an exemplary punishment is manifestly due to the Traitor or Traitors: but when
Treasons
and other offences are committed in any country
under the dominion
of the Crown of
England,
where the criminals might have a
legal
Trial
according to the laws of this realm,
(as in
Ireland,
) the said
most essential formality
of being tried by a Jury
de vicineto
cannot be dispensed with; because this would deprive the Subject of an
unalienable Right,
and
alter a
fundamental Law of this realm;
so that any Judge, who should venture to enforce the said Act, IN SUCH CASES, would manifestly DESERVE TO BE HANGED, as much as Dudley and Empson!
The examination of this point gives some general idea how far the
Power
of the high Court of Parliament (notwithstanding that imaginary
"omnipotency"
which some men have ignorantly attributed to it) may be allowed to extend;
for, the more high and absolute the jurisdiction of the court is, the MORE JUST and HONOURABLE it ought to be in the proceeding, and to give example of Justice to inferior courts.
4th Inst. p. 37.
Which is most strictly true; for, whenever the supreme temporal powers exceed the
honourable
limits of
natural Justice
and
Truth,
they lessen their own dignity, and, in proportion to their errors, forfeit that respectful consideration and esteem, which would otherwise be due from their subjects. And we must remember, likewise, that the being
"just and honourable"
in mere profession of words, without the
reality,
will have very little weight with the body of the
People,
who are endued with
common-sense,
as well as their superiors, to discern what is
just
and
honourable
from that which is
merely called so;
and that a pretence to
justice and honour,
in a bad cause, is only an aggravation of
injury
and
iniquity!
The most wicked ordinances have sometimes been ushered into the world under the most sanctified titles and specious pretences! The abominable Act beforementioned, of Hen. VII. was expressly said to be against "great enormities and offences, which" (have)
been committed, and have daily, contrary to the
good Statutes,
for many and divers behoovefull considerations, severally made and ordained, to the displeasure of
Almighty God,
and the great let of
the common Law
and wealth of the land.
Now, notwithstanding this
FAIR FLATTERING PREAMBLE,
as Sir Edward Coke calls it, yet "THE PURVIEW
of that Act
" (as he justly remarked)
tended, in the execution, contrary
EX DIAMETRO, viz.
to the high displeasure of
ALMIGHTY GOD,
the great
LET,
nay, the
UTTER SUBVERSION,
of the
COMMON LAW,
and the
GREAT LET
of the Wealth of this Land;
ibid. p. 40
, as, indeed, every other Act of Parliament must inevitably do, which perverts
the due course of the Law,
and robs the subjects of any
fundamental Right.
As for instance, let us suppose, (1st,) that an Act is made, to stop up or proscribe the passage to any
sea-port town,
or any
haven, shore of the sea,
or
great river,
without the Consent, and to the great Detriment, of all the neighbouring inhabitants; such an Act would be "FUNDAMENTALLY WRONG," as being contrary to the first or most essential Right of mankind, the
Law of Nature:
for it is clearly laid down by Bracton, that all
ports, havens, shores of the sea,
and
great rivers,
are free to all peaceable passengers, (but more particularly, we may add, to the nearest inhabitants.) by the
Law of Nature and of Nations:
NATURALI VERO JURE
communia sunt omnia haec, aqua profluens, aer, et
MARE,
et
LITTORA MARIS, quasi maris accessoria. NEMO enim ad lit
us maris accedere
prohibetur,
dum tamen a villis et aedificiis abstineat, quia littora sunt DE JURE GENTIUM COMMUNIA, sicut et mare.
&c.
And again:
Publica vero sunt
OMNIA FLUMINA
et
PORTUS, &c. RIPARUM
etiam usus publicus est
DE JURE GENTIUM,
sicut ipsius sluminis. Itaque naves ad eas applicare, funes arboribus ibi natis religare,
ONUS ALIQUAE in eis reponere CUIVIS LIBER EST, sicuti por ipsum fluvium naviga
e: sed proprietas earum est illorum quorum praediis adbaerent,
&c.
lib. 1, c. 12, p. 7 & 8
. So that such an Act would be mainifestly contrary to the
Law of Nature
and
Nations,
and consequently is such as NO LEGISLATURE ON EARTH can render valid or
legal,
because
natural Rights
and the
Laws of Nature
are immutable, "
Jura enim naturalia sunt
IMMUTABILIA:" And again,
Jura enim naturalia dicuntur
IMMUTABILIA, quia non possunt ex toto ABROGARI VEL AUFIRRI,
&c.
Ib. c. 5, p. 4
. And besides, it must be remembered, that to proscribe the passage or
highway
to any city or town (especially if it is done with an avowed design to distress the inhabitants thereof in their lawful occupations) is an
intolerable nuisance,
which is clearly adjudged, in Law, to be such a "MALUM IN SE" as can
never be made lawful!
—
But
MALUM IN SE
the King
NOR ANY OTHER
can dispense;
Mes
MALUM
IN SE LE ROY NE NUL AUTRE poit dispenser, sicome le Roi yeut pardonner a occire un autre, ou lui licence A FAIRE NUSANCE IN LE HAUT CHEMIN, CEO EST VOID,
&c.
11 Hen. VII. p. 12
. "Wherefore
it is generally true
" (as Judge Vaughan remarks)
that
MALUM PER SE
cannot be dispensed with,
&c.
Rep. p. 334.
Or, 2dly, suppose an Act should be made, to impower the Governor of a Province,
"without the consent of the Council,"
to appoint Judges and other Law-Officers,
who shall hold their Commissions
DURING THE PLEASURE OF
the Crown,
instead of the approved and established
legal
condition,
"quamdiu se bene gesserint;"
thereby setting up WILL AND PLEASURE ABOVE LAW AND JUSTICE, which are the first and most essential Rights of the People! — Would not such an Act tend to
the great
LET, nay the UTTER SUBVERSION
of the Common-Law,
&c.? Suppose likewise it should be o
dained, in such an Act, that
the Freeholders and Inhabitants of the several Townships,
in any particular province, shall
not
be permitted (even when
they are authorized to assemble together
)
to treat upon matters of the
MOST GENERAL CONCERN
—
except the business
(be)
expressed in the leave given by the Governor;
which implies that
one
or a few individuals have a more
equitable
pretension
to treat upon matters of the most
GENERAL CONCERN
than even the
general Meeting,
or whose collective Body of persons themselves who are
concerned!
— a principle which is subversive of all
"common Right and natural Equity;"
and consequently must tend "to the high Displeasure of almighty God," as well as "
the great
LET
of the wealth of the land.
" And, to compleat the iniquity of such an imaginary Act, let us suppose a clause, whereby "
it shall and may
BE LAWFUL" (LAWFUL!)
for the Justices,
&c.
in any Cause or Action which shall be brought to issue, to order the said Cause or Action to be tried in
ANY COUNTY, OTHER THAN THE COUNTY IN WHICH THE SAID CAUSE OR ACTION SHALL HAVE BEEN BROUGHT OR LAID, BY A JURY OF SUCH OTHER COUNTY, AS THEY SHALL JUDGE FIT,
&c.
— Such a clause must strike at the very Foundation of Justice!
Or, 3dly, if this imaginary Act should not be esteemed sufficiently injurious to the People, (though it is apparently calculated to
rob them
of that
fundamental
and unalienable Right,
the Trial by a Jury
DE VICINETO,
) let us suppose an Act still more PARTIAL (if possible) in the
"administration of Justice!"
and rendeted still more aggravating and insulting by bearing a title
contrary
EX DIAMETAO
to the purport of it! — Let us (I say) endeavour to stretch that notorious
Injustice
to the utmost extent of inconvenience and injury that a wicked imagination can possibly conceive or express! that is, to establish a Power of removing the Causes and Trials (and even those which are of the most importance,
viz.
for
capital offences
) not only to a neighbouring
County,
or to a more distant
Colony,
but even, if caprice should require it, to the furthermost extent of the Globe, that is, (without aggravation,) as far as
the East is from the West!
Or, 4thly, if we may conceive the idea of an Act calculated to
"fulfil the Measure of Iniquity,"
let us suppose an Act expressly for the purpose of establishing the arbitrary Laws of France, (
Quod Principi placuit habet vigorem Legis,
&c. see my Preface thereupon,) and, in order that it may be destructive to
the Souls,
as well as the
Bodies
and Property, of the wretched Subjects, (as I have already shewn,) let us suppose that ample provision is made therein for the
Establishment
(not the mere Toleration) of downright
Idolatry
and
Image-Worship!
for the Toleration of the most notorious EXORCISMS (
"Exorcismus Aquae;" — "Exorcismum Salis." — "Exorciso te, creatura Salis;"
— see the Missal) and SPIRITUAL WITCHCRAFT! In short, let us suppose that such an Act provides for the Establishment of that adulterated Religion which has long been perplexed with all the Enthusiasm of
heathen
ignorance,
(long Prayers, vain Repetitions, "as the Heathen do,")
and bears the most apparent marks of
Antichrist,
insomuch that we might be certain; at least, who was the first
spiritual
Instigator and Promoter of such a Bill, though the
bodily
Proposer of it should be lucky enough to-remain undiscovered! Who shall presume to say,
that any Power on Earth
(whatsoever weak and ignorant men may think of the
Omnipotence
of Parliament) has Authority or Right, either to establish such notorious spiritual Abominations, or to render
lawful
such gross Iniquity and palpable Injustice!
And therefore, if any such Act should be made in our days, (howsoever specious the preamble,) it is our duty, as good subjects, to remember that the same ought to be considered as
null and void of itself,
and that it cannot authorize or indemnify the Judges, or any other persons, who presume to enforce It; for all men (and
Judges
in particular) ought to take warning, (from
the fearful end
of those two time-servers, Dudley and Empson,
) that such an active obedience would, perhaps,
endanger their own necks!
For suppose, 2dly, that such an Act was to be decked with the most flattering title; let us call it, for instance,
An Act for the
BETTER REGULATING
the government
of any particular province; or, 3dly, let it be called
An Act for
THE MORE IMPARTIAL ADMINISTRATION OF JUSTICE,
in the cases of Persons questioned for any acts done by them
IN THE EXECUTION OF THE LAW,
or for the Suppression
Though
"the Suppression of Riots and Tumults"
is here included as one of
"the fair flattering"
PRETENCES in the Title of the above mentioned imaginary Act of Parliament, yet it it is apparent that the
wicked Act itself
would be the most effectual method that could possibly have been devised for THE PROMOTION, instead of "THE SUPPRESSION,
of Riots and Tumults;
" for which, consequently, none but the Promoters and Makers of such an unjust Law could, with any propriety, be esteemed accountabled since it is true, even to a maxim, that
He makes THE STRIFE (or "TUMULT")
who first offends
—
"Qui primum peccat, ille facit rixam,"
Prin. Leg. et Aequit. p. 92.
of Riots and Tumults,
&c. or, 4thly, suppose such an injurious and unlawful Act should be intitled
An Act for making
MORE EFFECTUAL PROVISION FOR THE GOVERNMENT OF
any particular province,
&c.
yet, if
"the Purview"
(as Lord Coke justly remarked) of any such imaginary Acts should
tend, in the execution, contrary
EX DIAMETRO
to all these specious pretences, set forth in their titles and preambles, by establishing principles whereby
any fundamental Law
of the Realm is altered,
the same would manifestly
endanger the necks
(I must repeat it) of any Judges that were imprudent enough to enforce them, notwithstanding that the express Authority of
King, Lords,
and
Commons,
should be alledged as their sufficient warrant; because we find that the
like Authority
afforded no justification or excuse for poor Empson and Dudley,
in a similar case,
neither did the consideration of their having acted by
parliamentary Authority
render their wretched fate more pitiable in the eyes of the public! And therefore I sincerely wish that all modern
Time-servers
may have prudence enough to form (by that plain example) some reasonable judgement concerning the imaginary
"Omnipotence of Parliament,"
which cannot insure its wretched votaries from the most ignominious punishment! nor secure even
the Parliament itself
from the just and lasting Censures of the Sages of our Law, such as
Lord Coke,
for instance, who warned them in another place, also, expressly upon this point: —
By colour of which Act,
(says he, meaning the said unjust Act of 11 Hen. VII.)
shaking this
FUNDAMENTAL LAW,
(the Law of Juries,)
it is not credible what
HORRIBLE OPPRESSIONS,
and
EXACTIONS,
to the undoing of infinite numbers of people, were committed by
Sir Rich. Empson, Knt.
and
Edm. Dudley,
&c. and, upon this
UNJUST
and
INJURIOUS ACT,
(as commonly in like cases it falleth out,) a new Office was erected,
&c. And in the next paragraph he adds, —
And the
FEARFULL ENDS OF THESE TWO OPPRESSORS
(says he)
should deterred others from committing the like and should
ADMONISH PARLIAMENTS,
that, instead of this ordinary and pretious Trial
PER LEGEM TERRAE,
they bring not in absolute and partial Trials by Discretion.
2d Inst. p. 51.
particular cases wherein they may LEGALLY be enforced, without thwarting any
fundamental Law of the Realm.
From what has been said, I hope it will appear sufficiently clear to my Readers, that the severe censure, which Lord Coke so justly bestowed on the two wicked Judges, Dudley and Empson, for ACTING BY THE AUTHORITY OF AN UNCONSTITUTIONAL ACT OF PARLIAMENT, is equally applicable (for the very same reason) to the Resolutions beforementioned, of
ALL THE JUDGES IN ENGLAND,
though Lord Coke himself
(even the author of the former censure)
has cited them without the least animadversion!
The Judges, in the 33d year of Queen Elizabeth, who gave their opinion in the case of
Orurk,
Or
"Ornick."
See 3d Inst. p. 11, margin.
the Irishman,
are the more inexcusable, for their
Resolution
upon the Act of 33 Hen. VIII. c. 23. because they had an
excellent Example
set them, but a few years before that time, by two very learned and respectable brethren, the Judges
Wray
and
Dyer,
(together with the said Queen's Attorney-General,) concerning several
similar Acts of Parliament;
which Example is worthy the most serious attention of
all future Judges,
that they may ever be
careful
to restrain, by a
legal
construction, not only the said Acts of King Henry VIII. and King Edward VI. but all others, likewise, that may happen to be equally liable to alter the free Constitution of the realm, and rob the subjects of any essential
"fundamental Right,"
that ought to be esteemed
unalienable.
Judge Dyer himself has reported the circumstances of it. He informs us
Gerrarde,
Chauncelor de
Irelande,
move cest question al Counsel la Roygne, s. fi un Countee ou Seignior de
Irelande,
que commit Treason
in Irelande
per overt Rebellion, serra arraygne et mis a son tryall
in Engleterre
pour le offense, per l'estatute de 26 H. 8. cap. 13. — 32 Hen. 8. cap. 4. — 35 H. 8. — 2 ou 5 Ed. 6.11. — Et fuit tenus per
Wray, Dyer,
et
Gerrarde,
Atturney General, QUE IL NE POIT,
car il ne poit aver son tryal ici
PEESES PEERES, NE PER ASCUN JURY DE XII.
pur ceo que il n'est subject d'Engleterre, mes de Irelande, et ideo
LA SERRA SON TRYAL. Et dictum est,
que le usage la, d'attainder un Peere, est per Parliament, et nemy
per Pares
Dyer's Reports, p. 360 b.
that
Gerrarde, Chauncelor of
Ireland,
moved this question to the Queen's Counsel,
viz.
Whether an Earl or Lord of
Ireland,
who commits Treason by open Rebellion, shall be arraigned and put to his Trial
in England,
for the offence, by the Statute 26 H. VIII. c. 13. — 32 H. VIII. c. 4. — 35 H. VIII. — and 2 and 5 Ed. VI. c. 11. And it was maintained, by
Wray, Dyer,
and
Gerrarde,
the Attorney-General, that HE COULD NOT;
for he cannot have his Trial here
BY HIS PEERS, NOR BY ANY JURY OF 12,
because that he is not a Subject of England,
but of
Ireland,
and therefore his Trial shall be there,
&c.
These worthy Lawyers were not afraid, it seems, to maintain the weight of a LEGAL and FUNDAMENTAL REASON against the combined force of FOUR EXPRESS ACTS OF PARLIAMENT! And such a reason, though it had been advanced only by
a single Judge,
or even by
a private person,
is certainly of much more weight than the opinion of
"all the Judges in England,"
when given
contrary to reason,
or against the tenor of
any fundamental Law.
I never heard that
this Reason,
assigned by the Judges Wray and Dyer and the Attorney-General, against the force of the said
four Acts of Parliament,
has ever been questioned or disallowed as insufficient in the case of an
Irish Peer;
and therefore a similar reason is certainly as effectual in the case of any
private Irish Subject,
whose crime is
parallel;
because
true Justice
is
equal
in all her ways, and
has no respect to persons.
But if ye have
respect to persons,
YE COMMIT SIN,
and are convinced of the Law
AS TRANSGRESSORS.
James ii. 9.
For the same Law, which entitles the Nobleman to a Trial
by his Peers,
"Per pares suos,"
(Magna Charta, c. 14.) or "
per legale judicium
PARIUM SUORUM." lb. c. 29.
secures also, to every other person, his
parallel
Right to
a legal impartial Trial, by a Jury of honest unexceptionable
NEIGHBOURS:
—
Per sacramentum proborum et legalium hominum DE VINCINETO.
Mag. Charta, c. 14.
for a Trial can neither be esteemed
legal
or
impartial,
if the Jury are not impannelled in THE NEIGHBOURHOOD where the offence was committed;
—
Justiciarii per Breve Regis scribunt vicecomiti
comitatus
IN QUO FACTUM ILLUD FIERI SUPPONITUR, quod ipse venire faciat coram eisdem justiciariis, ad certum diem per cos limitatum,
duodecim probos et legales homines
DE VICINETO
ubi illud factum supponitur;
qui neutram partium s;ic placitantium ulla assinitate attingunt.
Fortescue de Laud. Leg. Ang. c. 25. p. 54. b.
unless we may except the single case beforementioned, concerning treasonable practices against
this Kingdom,
carried on by a British Subject in the dominion of a
foreign prince;
where the Crown of England
hath no jurisdiction:
but, in all other cases whatsoever, the Trial by a Jury of
Neighbours to the Fact
is the unalienable RIGHT of all British Subjects, according to the ancient LAW OF THE LAND: nay, this particular mode of Trial is so inseparably annexed to the
Law of the Land,
that it is sometimes expressed and known by that
general
term,
"the Law of the Land," (Lex Terrae,)
as if there was no other
Law of the Land
but
this one:
which emphatical expression sufficiently proves that
this particular Law
for the Mode of Trials is the
first
and
most essential Law of the Constitution;
for, otherwise, it could not be entitled to such an eminent and peculiar distinction, in preference to all the other excellent
Laws of the Land;
and consequently this
principal or fundamental Law
is so necessarily
implied
and
comprehended,
in that general term,
the Law of the Land,
that the latter may be considered as entirely
subverted
and
overthrown,
whenever the former is
changed
or
set aside;
for
sublato fundamento
cadit opus.
Jenk. Cent. 106.
In the 29th Chapter of Magna Charta,
"the Law of the Land"
seems to be mentioned in this peculiar sense:
Nec super cum ibimus, nec super eum mittemus, nisi per legale judicium parium suarum, vel
PER LEGEM TERRAS.
Lord Cokeresers us,
for the true sense and exposition of these words,
to
the Statute of 37 Ed. III. cap. 8.
(meaning chapter the 18th,)
where the words,
by the Law of the Land,
(says he,)
are rendered,
without due process of law,
&c. which he farther explains, towards the end of the same sentence.—
That is,
(says he,)
by
indictment or, presentment of good and lawful men,
WHERE SUCH DEEDS BE DONE,
in due manner, or by Writ-Original of the Common-Law.
These last are the express words of another Act of Edw. III. (
viz.
25 E. III. c. 4.)
Item, Whereas it is contained in the Great Charter of the Franchises of
England,
that none shall be imprisoned, nor put out of his Freehold, nor of his Franchises nor free Custom, unless it be BY THE LAW OF THE LAND: It is accorded, assented, and stablished, that from henceforth none shall be taken, by petition or suggestion made to our Lord the King, or to his Council, unless it be by
Indictment or Presentment of his good and lawful People
OF THE SAME NEIGHBOURHOOD WHERE SUCH DEEDS BE DONE, in due manner, or by
Process
made by writ-original at the Common Law. Nor that none be put out of his Franchises,
&c.
unless he be DULY brought in answer, and forejudged of the same BY THE COURSE OF THE LAW. And if any be done against the same, it shall be redressed and HOLDEN FOR NONE.
25 Ed. III. c. 4.
wherein they are given as an explanation of the words,
by the Law of the Land,
mentioned in the Great Charter. And the Great Charter itself, as well as this particular Act, and many other excellent Acts of K. Ed. III. is expressly cited and confirmed in an Act of the 16th Cha. I. c. 10. whereby the
"due Process of the Law"
(or
the ordinary Course of the Law,
see sect. v.) is again re-established, in opposition to the unlawful authority that had been usurped by the King, Privy-Council, and Star-Chamber.
This
"due Process of the Law,"
therefore, can be no otherwise than by a legal Jury of 12 credible men,
—
In presentia
duodecim
fide dignorum virorum FACTO VICINORUM, de quo agitur, et circumstantiis ejus: qui et noscunt eorundem testium mores, maxime si VICINI ipsi fuerint noscunt etiam, et si ipsi sint credulitate digni,
&c.
Fortescue de Laud. Leg. Ang. c. 28, p. 64
. See also the 25 and 26th chapters of that excellent little book.
who are Neighbours to the Fact,
and
unexceptionable
to the parties concerned, according to the
ancient Custom
or
Law of the Land.
Item per
antiquam Legem,
et consuetudinem
Regni,
omnes exitus quae emergent
in aliqua Curia de Recorde
infra Regnum, nisi pauci de quibus non est hic necesse tractandum, debet triari per xii. liberos et legales homines DE VICINETO,
&c.
qui nulli partium ulla affinitati attingent.
Doct. & Stud. c. 7. p. 26 b.
And that the same is also a
fundamental
and
essential
Right of the Subject, every man, who pretends to doubt of it, may be informed
by the feelings of his own breast,
if he will only take the trouble, for a moment, to suppose
himself
in such a situation, (through the false accusations of his enemies,) that nothing but an impartial Trial, by
a Jury of Neighbours,
well acquainted with him and his case, and the malignity of his accusers, can possibly save him from destruction! And farther, it is apparent, that the said
due Process of the Law,
by a Jury
de vicineto,
is now become an
unalterable
part of the Constitution, and must ever remain in force, not only against all contrary
Resolutions
and
Opinions of the Judges,
(such as I have mentioned,) but even against the express authority of any Act of Parliament that happens (inadvertently) to have been made to the contrary, because all such must necessarily
BE HOLDEN FOR NONE,
according to the 42. Ed. III. c. 1. which is cited by Judge Jenkins for that purpose:
Jenkinsius Redivivus, p. 65.
and, though it may be alledged, against the authority of this Act of Parliament, that another Act may unbind what it has bound, according to the maxim,
eodem modo quo quid constituitur, eodem modo dissolvitur:
yet a due consideration of
this very maxim
will afford us a substantial argument to the contrary: for, at the time the said Act was made, (
viz.
in the 42. Ed. III.) the
Great Charter
had been
expressly confirmed by many Parliaments,
not only in the reigns of that noble king's ancestors, but also by at least TWELVE
preceding Parliaments
And
Parliaments
at that time were preserved
in purily and independence by a very frequent renewal of
THE POPULAR REPRESENTATION,
viz.
every year once, and
MORE OFTEN
if
(there was)
need,
&c. which I have already proved in pages 160 to 170 of this Declaration; so that there was not then the least room even for the bare
suspicion
of undue influence!
even in his own glorious reign; so that the Parliament, in his 42d year, had certainly sufficient authority to add, to their confirmation of the Charters, that,
if
ANY STATUTE
be made to the contrary, that shall be
HOLDEN FOR NONE.
And the reason is plain; for no Statute whatever
(eodem modo constituitur)
is ordained by so
great Authority
as that which
Magna Charta
has at length acquired, by the express confirmation, from time to time, of
so many different Kings and Parliaments:
In the time of Sir Edward Coke the Charters had been expressly confirmed by THIRTY-TWO DIFFERENT PARLIAMENTS, as he himself witnesses in the Proeme of his 2d Institute:
The said 2 Charters
(says he)
have been confirmed, established, and commanded to be put in execution, by 32 several Acts of Parliament.
The wisdom of ages has made it venerable, and stamped it with an authority equal to the
Constitution
itself, of which it is, in reality, a most essential and
fundamental
part; so that any attempt to repeal
Though some particular articles of Magna Charta are indeed rendered useless, at this day, by subsequent Statutes, yet this affords no argument against the general stability of the Charter, with respect to its main object, the Freedom of the People. It is a Charter of Liberties, and therefore the subsequent Statutes, which
enlarged those Liberties,
(by annihilating the several oppressive customs which are mentioned therein and limited within certain bounds, as
Knights Service, Escuage, Wards,
and
Liveries,
&c.) cannot be said to
operate against
the Charter, but rather
in aid of it;
for though the said oppressive Tenures and dangerous Prerogatives are permitted by the Charter in
a certain degree,
yet the apparent intention of the several articles, wherein they are mentioned, was not to
establish,
but only to
restrain
them, as much as the circumstances, temper, and prejudices of those early times would permit: so that the Statutes, which afterwards entirely removed the oppression, cannot be esteemed contrary to the purpose of the Charter, because they enlarged those Liberties and Franchises of the people, to which the Charter itself is so apparently dedicated.
it would be treason to the state! This glorious Charter must, therefore, ever continue unrepealed: and even the articles, which seem at present useless, must ever remain in force, to prevent the
Oppressions and Prerogatives,
there named, from being extended beyond
certain limits,
in case the same should ever hereafter be revived. No single Act of Parliament can unbind or remove the limits here laid down: nothing less than the same
accumulated Authority,
by which the Charter is now established, can possibly set it aside, or any part of it, according to
the Maxim
before recited,
eodem modo quo quid constituitur, eodem modo dissolvitur:
for no single Act of Parliament,
eodem modo constituitur,
is ordained in the
same manner.
The many repeated confirmations of its authority were a work of ages; so that the said authority cannot
legally
be set aside, unless it be done
eodem modo quo constituitur,
that is, by the repeated suffrages of
as many Parliaments against it
as have already expressly confirmed it; and God forbid that any such gross depravity and corruption should ever obtain such a continuance in this kingdom, as to accomplish so great an evil; for that could not be without a total national reprobacy, dangerous to us not only in this world, but also in the next!
It must, therefore, be obvious to every person, who duly considers all these circumstances, that
the Resolutions of
ALL THE JUDGES IN ENGLAND,
in the cases of
Orurke,
or
Ornicke, the Irishman,
and
Sir John Perrot,
were contrary to a FUNDAMENTAL LAW in the
Great Charter,
and consequently ought to be "HOLDEN FOR NONE," according to the express determination of the Parliament, in the 42d Ed. III. c. 1.
Viz.
That the
Great Charter,
and the
Charter of the Forest
be holden and kept in all points; and if
any Statute be made to the contrary,
THAT SHALL BE HOLDEN FOR NONE.
and ought to be
VOID IN THE LAW
and
HOLDEN FOR ERROUR,
according to the second chapter
—
It is assented and accorded, for the good governance of the
Commons,
that no man be put to answer, without Presentment before Justices, or matter of Record, or by DUE PROCESS AND WRIT ORIGINAL,
according to the
OLD LAW OF THE LAND
(which I have already proved to signify, in an
especial
manner, the Trial by a Jury of the
Vicinage
);
and if
ANY THING,
from henceforth, be done to the contrary, it shall be
VOID IN THE LAW
and holden for Error.
of the same excellent Statute; because the two Acts of Parliament, of the 33 and 35 H. 8. on which they grounded their opinion, cannot have any
legal
force, (notwithstanding the
literal
meaning of the
general expressions
therein,) when applied to offences committed in any country, province, or
colony
whatsoever, that is subject to the imperial crown of Great-Britain: so that even if
Ireland
had been
especially named
therein, the said Acts would have been so far from
binding
that kingdom, (according to the effect supposed by Lord Coke, Judge Vaughan, Judge Blackstone, and others,) that the very NAMING
Ireland,
for such purposes as were intended by the said Acts, would have rendered them
absolutely
"NULL AND VOID," and to be "HOLDEN FOR NONE," because they would, in that case, have been directly
contrary
to the
Great Charter;
whereas, at present, there are some particular cases (as I have before remarked) wherein they may, perhaps, be allowed a legal force.
Now, though what I have already remarked will probably be thought a
sufficient
Answer to the two Resolutions
of all the Judges in England,
cited by
Lord Coke
as precedents against the Liberties of our brethren,
the subjects of
IRELAND, I am nevertheless inclined to add one more testimony against the said
Resolutions,
which has no less authority than that even of
Lord Coke himself
(in another part of his writings) against all
similar
Resolutions and Opinions!
Let him now bear witness both against the said
Judges
and
himself!
—
And albeit, Judgements in the King's Courts
(says he)
are of high regard in Law, and
judicia
are accounted as
juris-dicta,
yet it is provided, by Act of Parliament, that if
any Judgement be given contrary to any of the points of the Great Charter or Charta de Foresta,
BY THE JUSTICES,
or by any other of the King's Ministers,
&c.
it shall be undone and
HOLDEN FOR NOUGHT.
Proeme to his 2d Institute.
If Lord Coke, when he mentioned the BINDING IRELAND in the Parliament of
England,
"BY SPECIAL WORDS," (4th Inst. p. 350.) and
BY BEING ESPECIALLY NAMED,
(Calvin's Case, 7th Rep. p. 447.) had meant nothing more than what is clearly proved by his
one example for all,
beforementioned, (
viz.
that a Representation of the Subjects in
Ireland
ought to be summoned to the
English
Parliament, whenever
an Act of Parliament shall be made in England
(especially)
concerning the Statute of Ireland,)
there would have been no essential difference between
his Opinion
and that
natural Justice
for which I contend: but, alas! that great man has confirmed his error upon that subject in another part of
Calvin's Case,
(p. 446,) wherein he declares
that albeit
IRELAND
was a distinct dominion, yet,
THE TITLE THEREOF BEING BY CONQUEST,
the same by
judgement of law
might by express words be bound by Act of the Parliament of England.
Here he has luckily given us another
reason,
which leads us to the detection of his error. —
"Yet"
(says he)
THE TITLE THEREOF BEING BY CONQUEST,
&c.
Now, it is very remarkable, that so many of the most eminent law writers should have
copied
and
adopted
this erroneous opinion, without
examining the force of it;
as if the authority and real worth of this learned Writer, in other respects, were sufficient to render valid a
mistaken and groundless argument!
Judge Jenkins, indeed, has
adopted
the opinion without quoting
the reasons;
but Judge Vaughan, who has also
adopted
the opinion, refers us expressly to Lord Coke's
reason
against
Ireland, viz.
the
title by conquest.
—
That it is a CONQUERED KINGDOM
(says he)
is not doubted, but admitted
IN CALVIN'S CASE,
several times,
&c. Vaughan's Rep. p. 292. And, upon the strength of this
reason,
he proceeds very confidently to
determine
what things the Parliament of Ireland cannot do,
and to give instances
of Laws made in the Parliament of
ENGLAND
binding
IRELAND;
p. 293.
of which neither the first
A Law concerning the Homage of Parceners, called,
"Statutum Hiberniae,"
14 Hen. III. — "Mr. Cay" (says the Hon. Mr. Barrington)
very properly observes, that 'IT IS NOT AN ACT OF PARLIAMENT,' and cites the old Abridgement, title
Homage.
He allows it a place, however, in his edition of the Statutes, not to differ from former editors. This, in some measure, gives the authority of Legislation
(says this learned Gentleman, ironically)
to the King's Law-Printers: and yet, if such an ordinance is inserted in every edition of the Statutes, for near 3 centuries together, by printers known to print under the authority of the King's Patent, and the Parliament permits this for such a length of time, it becomes a question of some difficulty to say what force it may have acquired. No such question fortunately can ever arise upon this Statute,
as it is merely a
RESCRIPTUM PRINCIPIS to certain
Milites
(Adventurers, probably, in the Conquest of
Ireland,
or their Descendants) who had doubts with regard to the Tenure of lands holden by Knights Service and deseending to Co-parceners within age,
&c.
Observations on the more ancient Statutes, p. 39.
nor the second
A Statute of Nottingham, called
Ordinanatio pro Statu Hiberniae,
17 E. I.
— Upon which the Hon. Mr. Barrington remarks:
It is very singular
(says he)
that, though this Ordinance hath found a place amongst the
English
Acts of Parliament, the Collection of
Irish
Statutes, printed by authority at Dublin, begins only with the Ordinances of
Kilkenny,
in the 3d year of Edward the 2d. There can be no doubt, however, that this Law extends to
Ireland,
if not repealed by some
Irish
Act of Parliament; as, by Poyning's Law, in the time of Henry the Seventh,
all precedent
English Statutes are made to bind in
Ireland.
Ib. p. 141
. Nevertheless I must beg leave to observe, that this is neither an
English
nor an
Irish
Statute, but a mere
Letter-Patent
of the King,
by the Assent of his Council
(though it might be dated, perhaps, during the sittings of a Parliament at Nottingham): —
Edward, par la grace de Dieu, Roy Dengliterre, Seignor Dirland,
&c.
— a toutes ceux, que ceux Letters verront ou oiront, salutes. Saches que a le mendement de gulement de nostre terre Dirlande, a pluis grand peax et tranquill. de nostre people en cel terre a Notin. as octaves del St. Martin,
&c.
par
assent de nostre Counsell illonques,
&c. This is not the stile of an Act of Parliament; neither is the Assent of the
common Council,
or
general Council
expressed, but only "
by the Assent of
OUR COUNCIL," that is,
the King's Council,
which is always understood to signify the Privy-Council, and not the
national Council.
Besides, the King expressly calls this Ordinance,
OUR LETTERS-PATENT,
and witnessed it as such, in the usual form,
viz.
En tesmoignance
de quel chose nous avons fait faire CESTES NOUS LETTERS OVERTES.
Done a Notyngham le
24
jour de Novembre, lan de nostre reigne dix septisme.
Secunda Pars Veterum Statutorum, printed ann. 1555, p. 68 & 69.
are in the least intitled to the name of
Laws made in the Parliament of England,
though they are printed in the Statute-Books.
This seems also to be the case with the 3d voucher which he has produced for his assertion,
viz.
Laws for
IRELAND, made by E. 3, per advisamentum Concilii nostri,
&c.
That is if he meant the Laws contained in the Ordinance of that King's 31st year,
viz.
Ordinatio facta pro Statu Terrae Hiberniae;
because this Ordinance is no more intitled to the name of
a Law,
or
Act of Parliament,
than the two former; for, long before this period, the necessity of expressing
the Assent of the Commons,
in order to render an Act
valid,
was well understood, as the Hon. Mr. Barrington remarks, on the 14th of Ed. III.
"The Statutes now begin to appear"
(says he)
in a new, and more regular form;
&c.
whilst the Preamble,
IN EVERY INSTANCE,
makes express mention of the
CONCURRENCE OF THE COMMONS,
p. 218
; whereas this Ordinance has no such mention of their "CONCURRENCE," but only the
Assent of the Council,
that is, the Assent of the
King
's Council —
"de assensu consilii nostri ordinanda duximus,"
&c. whereas the Assent of the
great Council of the Nation
is expressed in very different terms, as I have remarked in the former notes, as also in the notes on pages. 128 and 129.
But if this learned Judge meant any other Laws "
for
IRELAND,
made by Edward
III." than this Ordinance of his 31st year, (for he refers us, in the margin, to the Parliament-Rolls of his 5th year,) yet the same cannot afford the least proof or precedent for
binding Ireland
in England without Assent, because I have already cited ample testimony that the Parliament of
Ireland
in those days was frequently summoned to
England,
sometimes to confer with the
English
Parliament; and sometimes to meet the King and his Council: in distinct Seffions of the
Irish
Legislature. See pages 66 to 80.
His fourth voucher adds no more confirmation to his assertion than the three former; for though it is really
an Act of Parliament,
yet it cannot be produced as a precedent for
binding
the
Irish
Subjects
without their Consent,
because it is made expressly for the purpose of
enforcing
an Act of the
Irish Parliament, "Estatute "fait en la terre d' Ireland;"
and therefore, as the question relates only to the carrying the said Law into execution, which is properly the office of the King and his Courts, it is certainly indifferent whether be is advised therein by his
Privy-Council
or by his
Common-Council
of
England,
especially as the latter, in the case before us, were so far from advising the King to invade or alter the
Irish
Law, that they confirm it in the strongest terms —
que le di
Estatute estoise
EN SA ENTIER FORCE,
et que bien et duement soit gardez et
PLEINEMENT EXECUTE,
&c.
With respect to his 5th voucher, referring us to "
the late Acts made in
17
Car.
1," &c. it would be very unfair to draw from thence any conclusions unfavourable to the Privileges of the
Irish
Parliament, because that was the fatal year of the popish massacre in
Ireland,
when the Protestant Subjects of that kingdom were almost universally oppressed, and all Law and Regularity overturned by the open Rebellion of the popish party: so that even the Parliament of
Scotland
(as well as the Parliament of
England
) thought it right to take the affairs of
Ireland
under their consideration at that unfortunate juncture; and sent two Commissioners, properly instructed by the States of that kingdom, to treat with the
English
Parliament about the means of suppressing the
Irish
Rebellion. Sir John Temple's History of the Irish Rebellions p. 156 to 158.
But notwithstanding that some Acts might have been made in the 17th of Charles I. without the Assent of the
Irish
Parliament, yet they afford no evidence in favour of that opinion for which they are cited by the learned Judge; for Mr. Molyneux has proved that, by the repeal of those very Acts of 17 Cha. I. that they afford an argument even on the
other side of the question,
viz.
that the Parliament of
IRELAND
may repeal an Act made in
ENGLAND
in relation to the affairs of
IRELAND,
p. 75.
And again, with respect to the 6th and last voucher, under that head, (
viz.
the resolution of the Judges in the Exchequer-Chamber, in the case of the Merchants of Waterford,) it by no means relates to the question in dispute; for that concerns only the exportation and importation of goods, and the
Irish
do not pretend to contest the Right of Great-Britain to the
Dominion of the Seas;
nor do they deny the Power of the British Parliament to regulate Commerce, as I have before remarked. Now, as it appears that
not one
of these Precedents is sufficient for the purpose proposed, and as we cannot doubt but that so learned a Lawyer as Judge Vaughan (as I have before observed of Judge Coke) would select the most applicable Precedents that could be found, the doctrine which he has built upon these insufficient Precedents must necessarily fall to the ground.
Amongst the
modern
writers, who have likewise unfortunately
adopted
the same erroneous opinion of Lord Coke, the learned Judge Blackstone is the most eminent, and therefore demands the most careful examination.
In the introduction to his Commentaries, p. 101, he hath delivered his sentiments much to the same effect as the other more ancient writers, already mentioned. — That
no Acts of the
ENGLISH
Parliament, since the twelfth of King John, extended into that kingdom,
(Ireland,)
unless it were
SPECIALLY NAMED,
or
INCLUDED UNDER GENERAL WORDS,
such as
WITHIN ANY OF THE KING'S DOMINIONS,
&c.
And in page 103 he repeats the same doctrine,
that no Acts of the English Parliament made since the 10th Hen. VII. do now
bind
the people of
Ireland,
unless SPECIALLY NAMED or INCLUDED UNDER GENERAL WORDS.
For this
inclusive
Power, of GENERAL WORDS, Judge Black stone refers us to Lord Coke's 12. Rep. 112. but I shall take no pains to refute any error in that
last Collection
of his Reports,
"which are well known"
(says the honourable Mr. Barrington, p. 161)
not to be of equal authority with those that precede.
And besides, I have already demonstrated, (I hope,) in my Comment on the Cases of
Orurke,
the
Irishman,
and
Sir John Perrot,
(as also by the clear and decisive Resolution of the worthy Judges,
Wray
and
Dyer,
and the Attorney General
Gerrard,
for restraining the GENERAL WORDS of
four express Acts of Parliament,
) that all such
general Words,
in Statutes, must be duly restrained by a
legal Construction,
if the Judges, who enforce them, mean to avoid the Risk of exemplary punishment!
And in the same paragraph he assigns the very same reason (drawn from
the Conquest
of
Ireland
) which had misled both Lord Coke and Judge Vaughan before him.
And, on the other hand,
(says he,)
it is
EQUALLY CLEAR,
that, where Ireland is particularly named, or
IS INCLUDED UNDER GENERAL WORDS,
they are
BOUND
by such Acts of Parliament.
(though I hope I have already made
the contrary
appear EQUALLY CLEAR.)
For this follows
(says he)
from the very nature and constitution of a
DEPENDENT STATE:
dependence being very little else but an
OBLIGATION TO CONFORM TO THE WILL OR LAW OF THAT SUPERIOR PERSON OR STATE
The
Irish
do not pretend to deny a
legal Dependence
on the superior State of
England,
for they acknowledge that the Sovereignty of their Island is inseparably annexed to the Crown of
England,
of which, I believe, I have already quoted some examples: but, when
Dependencs
is defined (in the manner Judge Blackstone represents it) as
an Obligation to conform to the Will or Law
of the superior Person or State,
&c.
it ceases to be a
legal
Dependence, according to the
common Law and Constitution of England;
though the learned Judge is certainly right enough, if he will be pleased to confine his Definition of
Dependence
to those Countries where the
civil Law
prevails, as in
France
or
Prussia
for instance; because, in such despotic Realms, the oppressed People seem, indeed, to acknowledge
an Obligation to conform to the
Will
or
Law
of the
superior Person or State;
and the learned Commentator, if he meant to refer to the Laws of such enslaved People as these, must certainly be allowed to have delivered his meaning in the most
expressive
and
judicious
terms that he could possibly have chosen
for such a purpose;
for, in speaking of
"the Will"
of
that superior Person or State
to which he supposes
an Obligation to conform,
&c.
he mentions it as a synonimous term to the word
"Law," viz. "Will or Law,"
says he, that is,
an Obligation to conform to the
Will or Law
of that superior Person or State,
&c.
which is, indeed, a most lively description of the dangerous
unlimited
Power of the French, Prussian, or Imperial, Administrations of Government; for, wheresoever these two words, WILL
and
LAW, are considered as synonimous, there
Law
must, of course, be any thing (be it ever so wicked or iniquitous) that the Superior pleases; that is, in short,
Quod Principi placuit Legis habet Vigorem!
But I have already held up that detestable Maxim of the
civil Law
to the view of my Readers; and therefore I shall now only remark, in general, that neither the LAWS of
England
nor the LAWS of
Ireland
acknowledge and such Precept as the setting up the WILL of a Superior for LAW; or, (what is the same thing,) they do not acknowledge any such state of
"Dependence"
as an OBLIGATION
to conform to the
"WILL OR LAW" (those synominous Terms)
of the superior Person or State,
&c.
Our Laws,
indeed, acknowledge the King of Great-Britain for the time being as the
"Superior"
or
Head
of both Kingdoms; but the
"Dependence,"
which is thereby required of
"the Inferior,"
(whether the term,
Enferior,
he applied to the inferior Kingdom as
subordinate,
or to Persons,
viz.
to each Individual as
a Subject,
) in either case, is a
politic
or
legal "Dependence,"
and not
absolute
and
unlimited.
—
Principatu namque nedum
REGALI,
sed et
POLITICO,
ipse suo populo dominatur.
The Laws leave no room to suppose that there is "
an Obligation to conform to the
WILL
or
LAW" (if the latter has no other foundation than the
Will
)
of that superior Person.
Nam non potest Rex Angliae
AD LIBITUM SUUM
Leges mutare Regni sui. Principatu namque nedum
REGALI,
&c.
as above.
(Fortescue de Laud. Leg. Angliae, c. 9. p. 25 b.)
And, if even the
King's
Power is not
regal,
but
politic
and
limited,
(which the same learned Writer, Chancellor Fortescue, has clearly proved in a distinct Tract, expressly on that subject, intitled,
The Difference between
absolute
and
limited
Monarchy,
) much less can the
King's Subjects
be said to exercise a
Sovereign's legislative Power
(1. Com. p. 101)
over any Nation or People whatsoever, that have no share in the said Power by a due
Representation
of their own collective body: for the
sovereign Majesty of the People
ought never to be exerted, except in their own necessary defence, or to maintain the
natural Rights
and
equitable Privileges
of Mankind, against Tyrants and Oppressors, for the good of Society in general, through that disinterested evangelical Principle,
"Good-will towards men."
But when, on the contrary, any particular Nation or People exerts that
"sovereign legislative Power"
to deprive another different Nation of their
natural Rights and Liberties,
they no longer deserve to enjoy their
own;
and, indeed,
divine
JUSTICE will inevitably overtake them sooner or later; for, as the crimes of individuals will surely be punished with
personal
condemnation, so
national sins
must feel the additional Weight of temporal
national Retribution;
which, I trust, I have demonstrated in a little Tract, intended sometime or other for Publication, intitled,
The Law of Retribution, and, in particular, of God's temporal Vengeance on Slaveholders
upon which the inferior depends.
And then he immediately adds:
The original and true ground
(says he)
of this Superiority, in the present case, is what we usually call, though somewhat
IMPROPERLY,
(very "IMPROPERLY" indeed,) "THE RIGHT OF CONQUEST:"
&c.
Now, I most heartily join with him in his application of the adverb "IMPROPERLY" to the words which follow,
viz.
"THE RIGHT OF CONQUEST," whenever it is mentioned as a
reason
to justify this claim or imaginary right of binding the people of
Ireland,
either by being
specially named
or included under
general words;
for I hope I shall convince that learned gentleman himself, as well as the rest of my readers, before I conclude, that
THE RIGHT OF CONQUEST
is not
the original and true ground
of any such
superiority, in the present case,
as he supposes; but, on the contrary, that it seems rather to have been
"the original and true ground"
of all the dangerous mistakes which have been made, upon this important question, by Lord Coke, Judge Vaughan, and himself: for, if this learned gentleman will be pleased to review this argument, founded on
"the Right of Conquest,"
as applied by himself and the other two very eminent Writers, beforementioned, to the free kingdom of
Ireland,
I trust (through the great opinion I entertain of his candour and good sense) that he will readily give it up; for, though the
Right of Conquest
may be, as he says,
a Right allowed by
THE LAW OF NATIONS,
if not by that of Nature,
(that is, in some particular cases,) yet it certainly is contrary both to
"the Law of Nations"
and
"that of Nature,"
(to which he has appealed,) that
"the Right of Conquest"
should be pleaded for
binding
the
Conquerors themselves, or their Descendants, without their Assent!
for of such consist the greatest part of the landed interest in
Ireland,
at this day, who are entitled to all the Rights and Liberties of the ANCIENT CONQUERORS by
inheritance
and
lineal descent:
— Titles so
just
and
sacred,
that I am sure Judge Blackstone will never persist in opposing them; especially when he sees hereafter by what authority I make this assertion: Nay, the
Right of Conquest
is so bad a plea to extenuate the
iniquity
of exerting any such oppressive and
unlimited
power, that it fails in
Reason
and in natural
Justice,
even when applied as an excuse for oppressing
the conquered;
— much less therefore can it affect the Liberties and natural Rights of the
Conquerors
themselves!
That these
Liberties
and
natural Rights
of the
conquerors
are entailed upon a very great part (if not the most
numerous,
at least the most
considerable in point of rank and fortune
) of the present inhabitants of
Ireland,
is a point, I believe, which cannot be contested; for Judge Blackstone himself has declared in a preceding page, 99: —
That the inhabitants of
IRELAND are, FOR THE MOST PART
The following Extract, from Sir Wm. Petty's Political Survey of Ireland, will corroborate this just Remark of Sir William Blackstone.—
The
British
Protestants and Church have three-fourths of all the Lands, five-sixths of all the housing, nine-tenths of all the housing in walled towns and places of strength, two-thirds of the foreign trade,
&c.
p. 27.
,
descended from the
ENGLISH, who planted it
as a kind of
COLONY,
after the Conquest
of it by King Henry the Second,
&c.
and consequently "THE MOST PART" of the said Inhabitants ought to be considered as standing in the place of the
Conquerors,
rather than of the
Conquered,
so that if the
Reason
assigned by these three learned men has
any weight, viz.
that some degree of
superiority
is acquired by
Right of Conquest,
it must be allowed, that "THE MOST PART of the said Inhabitants are equally intitled to it, in Right of their
conquering Ancestors;
for it would be highly injurious to deprive them of their
hereditary Privileges,
which descend to them from the actual Conquerors themselves.—And, on the other hand, it would be equally
unjust, wicked,
and
impolitic,
to make any partial distinction between them and the descendants of the
conquered Irish,
who, after many years struggle, are now, at last, happily incorpotated and blended with them as
one free People!
Having now examined the opinions of the most eminent Writers, that have favoured this
Notion
of a Right in the British Parliament to
bind
the Subjects of
Ireland "when especially named,"
I trust it will appear, to every impartial Reader, that such doctrine is so far from having any real
foundation
to support it, that it is really diametrically opposite to some of the most essential
foundations of Law,
and is apparently
subversive
of one of the first principles of the British
Constitution!
so that it will be needless for me to take notice of any thing that has been said to the
same purpose
by inferior Writers, or by the Editors or Collectors of Law Dictionaries,
&c.
who have
only quoted
these great authorities which I have already demonstrated to be
erroneous;
and I may therefore, I hope, be now allowed to repeat with double satisfaction and certainty what I before asserted only upon
general Principles
in the first Part of this Declaration,
viz.
that
the true constitutional mode of
CONNECTING
British Dominions, that are otherwise separated by
NATURE,
is demonstrated by the established example of the union of
GREAT BRITAIN
and
IRELAND,
which by long experience has proved to be sufficiently effectual,
p. 21.
But, notwithstanding that I have already been led to a tedious length of argument by the necessary examination of so many authors, I must beg leave still to add some general remarks upon the above-mentioned groundless argument drawn from
the Right of Conquest;
for Judge Blackstone has been equally unguarded in what he has laid down concerning the
American Colonies
in p. 107. of the same volume, where he has made a very improper use of this same mistaken notion about the Right of Conquest.
"Our
American
Plantations" (says he) "are principally of this latter sort," (
viz.
conquered or ceded countries, of which he was treating in the preceding sentence,) "being obtained" (says he)
in the last century, either by RIGHT OF CONQUEST,
and driving out the Natives, (with what natural Justice I shall not at present enquire,) or by Treaties. And therefore
(says he)
the
COMMON LAW OF ENGLAND,
as such, has no
ALLOWANCE
or authority there;
they being
no part of the mother Country, but distinct (though dependent) Dominions.
But, when he reconsiders this part of his work, I trust he will allow that the COMMON LAW of
England
is principally founded on
Reason, natural Justice,
and
the eternal Laws of God;
and consequently all that part of the COMMON LAW, which arises from
these foundations,
MUST HAVE
allowance or authority,
not only
there (viz.
in the English Colonies) but
every where else,
if the unjust pretensions of Tyrants were to be duly restrained by
Law
and
Equity:
and, with respect to the
remaining part
of the COMMON LAW, consisting in ancient and approved
usages
and
customs, peculiar to English Subjects,
he will not be backward, I trust, to grant them also
"allowance or authority there,"
when he is reminded that these
conquered Countries
are not inhabited by
the conquered People,
but chiefly by
British Subjects,
successors to
the Conquerors,
who are entitled by
Birth-right
to the
Common Law of England,
and every other privilege of Englishmen, quite as much as those
English Subjects
mentioned by him at the top of the same page.
"For it hath been held,"
(says he)
that if an uninhabited country be discovered and
PLANTED BY ENGLISH SUBJECTS, ALL THE ENGLISH LAWS THEN IN BEING,
which are the
BIRTH-RIGHT OF EVERY SUBJECT,
are immediately
THERE IN FORCE.
1 Com. p. 107.
This doctrine is unquestionable; and the more so because allowed by himself: And though he has been pleased to add, that
this must be understood with very many and very great restrictions;
that
such Colonists carry with them only so much of the English Law,
as is applicable to their own situation,
&c.
yet it must be apparent that, if they
"carry with them"
any Laws
at all,
it most be by virtue of their
natural Right as Englishmen,
whereby they are certainly as much entitled
to all;
(I mean all the English Laws that were in being when these several Colonies respectively were established;) and therefore, though they
used
(in the infant state of each Colony)
only so much of the English Law
as was applicable to
their own situation,
(and it is absurd to suppose that they would
use
more, whether intitled to it or not,) yet this does not affect their undoubted
Right to the whole;
which
Right
descends to posterity and successors in the same manner as all other
inheritances;
it being, indeed, their
very best inheritance
Judge Blackstone himself has called it in the the very same page
"the Birth-Right of every Subject."
: And Equity surely entitles the increasing Colonies (continually as occasions may arise from their improvements) to the use and benefit of
all beneficial Laws
which were in force at the time of their ancestors emigration.
That these, however,
must be understood with
some "Restrictions,"
cannot be denied;—as the Laws of
"Revenue,"
(for instance,) which the learned Gentleman himself has mentioned: for these were merely local, and cannot therefore be
legally
enforced in any new Dominions without the express Assent or Grant of the Inhabitants in such new Dominions, the same being absolutely necessary to give them a
local
effect within the said Dominions: because nothing but the
free Grant
and
Assent
of the
Inhabitants and Landholders
gave them force,
originally,
even in the mother Country; and, therefore, nothing but the
like authority
(that is, the free Grant of
the Inhabitants upon the spot
wherever they are introduced) can possibly render them
legal, just,
and
binding
in any other part of the world; so that it must necessarily appear, that no new acquired Territories, settled by British Subjects, can
legally
be taxed by English Acts of Parliament, nor be bound thereby in their
internal
Government without such manifest
injustice
and
iniquity
as must necessarily render
null and void
all such pretended Acts; for, otherwise, if they were admitted, they would render all the temporal hereditary possessions and property of the Subjects in the Colonies entirely
uncertain,
which is one of the most odious circumstances in the eye of the Law that can be mentioned.
"Quod certum est retinendum est,
quod INCERTUM EST
dimittendum:
Nay,
quod
INCERTUM EST NIHIL EST:" This is the censure of Law upon all the Acts of Men which fall under the judgement of the Law. If then THE LAW so judge of the Acts of Men, HOLDING THEM FOR NOUGHT and VOYDE that are INCERTAINE; how much more then doth THE LAW REQUIRE CERTAINTY
in her own Acts,
which are to bind all Men.
The Liberty of the Subject against the pretended Power of Impositions, by Wm. Hakewil, 1641.
I have been the more particular (as well here as upon Orurke's case beforementioned) in expressing the necessity of restraining the
Power of Parliament
within the bounds of
Reason, Justice,
and
natural Equity,
because, I find, it is too common an error that an
Act of Parliament is omnipotent,
and that whatever is ordained by Parliament
must be Law,
without any exception of
Right
or
Wrong, White
or
Black, Truth
or
Falsehood!
which, God be thanked, is very far from being
true,
though the learned Commentator Judge Blackstone, upon the very same point, (the
Omnipotence of Parliament
) has unguardedly said,
True it is, that what the Parliament doth, no Authority upon earth can undo.
1 Com. p. 161
. But that worthy Gentleman needs only to be reminded, that if it should unfortunately happen, from any
oversight
or
misunderstanding,
that
what the Parliament doth
is in the least contrary either to the Laws of Reason, Nature, pure Morality, natural Equity and Justice; or to that
Benevolence
This
Benevolence,
or due
Consideration
for the
natural Rights
of all mankind is properly called
Jus Gentium,
the
Law of Nations
The Law of Nations seems to be almost banished at this time from
Europe.
The late felonious and arbitrary Division of Poland between three of the greatest Powers in Europe: The late iniquitous attempts against the antient Republic of Venice and the Swiss Cantons, and the late unjust Claims upon the free Cities of Dantzick, Hamburgh,
&c.
The Robberies and horrid Murders which, for these ten years past, have been committed by the French on the
poor wretched
Inhabitants of the little Island of Corsica, upon pretence of an
unlawful
Cession of Sovereignty from the Genoese; and the like abominable Iniquity, upon the like false pretence, lately carried on, even by the
English
themselves, against the poor helpless Charibbs at St. Vincent's:—are melancholy Proofs, either that the Europeans in general are most profoundly ignorant of the
Law of Nations,
or that they are fallen into a state of the must abandoned Wiekedness and P
ofligacy.
which universal Law (as likewise ALL THE OTHER HEADS above-mentioned) is necessarily included in what is commonly called
natural Religion,
consisting of the primary or
eternal Laws
of God; and whatsoever is contrary to any of these is "MALUM IN SE," which no authority on earth can make lawful; (see note in p. 185 & 186.) and
men
of all ranks, and in all places, that have
Common Sense,
are
naturally
qualified to distinguish whether Laws are deficient in any of these respects, or are contrary to
Reason;
for the LAW OF REASON in an universal Law—
Scribiturque
HAEC LEX
in corde
CUJUSLIBET HOMINIS,
docens cum quid aegendum, et quid fugiendum,
(for which the learned Author quotes the Epistle to the Romans, chap. 2, and then proceeds)
et quod
LEX RATIONIS
in corde scribitur, ideo deleri non potest, nec etiam recipit mutationem ex loco nec tempore, sed ubique
ET INTER OMNES HOMINES
servari debet. Nam
JURA NATURALIA IMMUTABILIA SUNT,
et ratio immutationis. est quod recipiunt Naturam rei pro fundamento, quae semper eadem est et ubique.
Doct. et Stud. cap. 2
. Any
Acts of Parliament,
therefore, which are contrary either to
Nature,
to
Justice,
to
Morality,
or to
Benevolence,
&c. are contrary to REASON, (that Ray of the divine Nature, and supreme Law,) and consequently are
null and void,
being mere Corruptions,
(corruptelae,)
and not Laws; for
"contra eam"
(Rationem)
non est praescriptio vel appositum statutum sive consuetudo; et, si aliqua fiat,
NON SUNT STATUTA,
sive Consuetudines, sed
CORRUPTELAE,
&c.
Doct. et Stud. p. 5. b.
and Consideration which we owe, not only to our brethren and countrymen, but also to our
brethren of the universe,
by the
ties of nature;
or, 2dly, if contrary to the written Laws of God;
Secundum fundamentum legis Angliae est
LEX DIVINA,
&c. And if any Act of Parliament is in any degree contrary to
the divine Law,
it has no force in the Laws of
England.
Suppose, for instance, an Act of Parliament should be made, to prohibit or annul the marriages of any particular rank or order of men whatsoever; the same must necessarily be esteemed null and void of itself; because the
Principle,
attempted to be established by such an imaginary Act, is so directly
contrary to the Laws of God,
that we may safely rank it with the "DOCTRINES OF DEVILS.;" (see notes on pages 133 & 134.) which, indeed, every Act of Parliament ought to be esteemed that is in any degree contrary to
the holy Scriptures,
(the written Laws of God,) or contrary to
Reason,
(the
eternal Law
of God)—
Etiam si
ALIQUOD STATUTUM
esset editum contra cos,
NULLIUS VIGORIS
in legibus Angliae censeri debet,
&c.
Doct. et Stud. c. 6.
or, 3dly, if contrary to any of the
fundamental Rights and Franchises
declared in the Great Charter;
Of this I have already given sufficient examples in pages 178 to 208.
or, 4thly, if contrary to TRUTH; (that is, if any Act be made upon
partial
information or groundless suggestions, which shall have occasioned a misrepresentation of TRUTH in the recital of facts;)
"Contra veritatem nihit possumus."
And again,
Contra veritatem lex nunquam aliquid permittit.
2 Inst. 252
. Plowden has reported a variety of cases wherein Acts of Parliament were esteemed
vaid in Law,
through the want of
truth
in the recitals: see pages 398 to 400. —
Et issint Parliament puit misprender chose, et Statutes que MISRECITE CHOSES, et sont referre a eux, SERRONT VOID, et null serra conclude per eux. Issint en notre principal case, le statut que recite le plaintiff fuit attaint, et confirme ceo, ou en fail il ne fuit attaint, SERRA VOIDE.
if, in any of
these points,
it should unfortunately happen (I say) that
what the Parliament doth
is really defective, or made contrary thereto, the same ought to be "HOLDEN FOR NONE!" There needs
"no authority upon earth"
to undo what is
so done,
for it is
null and void
of itself, notwithstanding the united authority of King, Lords, and Commons! And, whenever any Acts have been thus in advertently or too hastily made, the most honourable method of getting rid of them is, by the same authority, to
declare them null and void,
and not merely to
repeal
them, because the latter is not a sufficient reparation to
injured justice and truth;
for, as all men are fallible, it is disingenuous and highly dishonourable, in any man, or body of men whatsoever, not to acknowledge a
mistake
or
error,
when the same is fairly demonstrated!
The power and jurisdiction of the Parliament, for making of Laws,
&c. is NOT therefore
so transcendent and absolute that it cannot be confined, either for causes or persons,
(as supposed by Lord Coke, 4 Inst. p. 36,)
within any bounds,
since the just
bounds
and limits of it are so very clearly defined, as well as the due bounds of
regal Power,
that they fall within the judgement of every man who has COMMON SENSE to distinguish GOOD from EVIL, or RIGHT from WRONG; so that the imaginary OMNIPOTENCE OF PARLIAMENT is not only (as Judge Blackstone has declared)
"a figure rather too bold;"
but even totally false and unjust; because the Parliament is manifestly limited, (as all powers on earth must be,) and CANNOT
do every thing that is not
NATURALLY
impossible;
though Judge Blackstone supposes it can (1 Com. p. 161.) for the
Power
— "Quia illa potestas" (potestas Juris)
folius Dei est; potestas autem injuriae diaboli, et non Dei; et cujus horum opera fecerit rex, ejus minister erit cujus opera fecerit. Igitur, dum facit justit am, vicarius est Regis aeterni; minister autem diaboli, dum declinet ad injuriam,
&c.
Bracton, lib. 3, c. 9, p. 107 b.
OF RIGHT (or Justice) alone is of GOD; but that of WRONG (or Injury) is of the DEVIL; and the works of whichsoever of these the King
(or any other man)
shall do, of the same shall he be esteemed the servant.
Know ye not that, to whom ye yield yourselves
servants
to obey,
his servants
ye are, to whom ye obey? whether of sin unto death, or of obedience unto righteousness.
&c.
Rom. vi. 16.
So that
"the Powers that be"
cannot bind the conscience when they exceed
just limits,
any more than the threats of a
lawless Banditti;
and therefore we may truly say
of all the Branches of the Legislature together,
(I mean their united authority,) what the ingenious Mr. Sadler said particularly concerning the House of Commons;
viz.
When they are
FREEEST,
they have
LIMITS;
for they be not infinite. Nay, when they are
MOST FREE,
they are
MOST BOUND
to
GOOD ORDERS,
and to
RICHT-REASON.
Sadler's Rights, p. 135.
It would be happy for this kingdom if all Members of Parliament were sensible of these
indispensible limitations;
and therefore, though I have thought it my duty to oppose what Judge Blackstone has unfortunately allowed concerning the imaginary OMNIPOTENCE OF PARLIAMENT, yet I think myself bound most heartily to concur with him in what he has mentioned in the same page —
That it is a matter most essential to the liberties of this kingdom, that such members be delegated to this important Trust, as are most eminent for their probity, their fortitude, and their knowledge; for it was a known apophthegm of the great Lord Treasurer Burleigh, "that England could never be ruined but by a Parliament,
&c.
But, before I conclude this 2d part of my Declaration, it may, perhaps, be expected that I should apologize for the tedious length of it; and yet, when my Readers consider that it was necessary for me to answer the assertions of some of the most eminent Law Writers that this nation, perhaps, ever produced, they will not think their time ill spent (I hope) in following me through this minute examination of the said assertions, especially as they relate to the most
important points of the
CONSTITUTION
and
COMMON LAW
of England and Ireland.
And I hope, also, that my Readers will not charge me
with presumption,
for having, in the course of this argument, opposed the opinions of such very respectable Writers as
Baron Puffendorf
on THE CIVIL LAW, and
the Judges Coke, Vaughan, Jenkins, and Blackstone,
and
the Hon. Mr. Barrington, on
THE LAWS OF ENGLAND. If my Remarks should, in any part, be thought too severe, I am sorry for it; I can only assure my Readers that the least
personal disrespect
is not intended; for I am sufficiently sensible of my own unworthiness and
too superficial knowledge in all things;
and have, therefore, most carefully avoided any doctrine which may seem to rest merely upon the weak foundation of my own opinion; but, whereever I have ventured to dissent, from the opinions of these approved writers, I have assigned plain
reasons
for it, or other
proper authorities,
and I desire to be trusted no farther than these
plain reasons
and
authorities
will fairly warrant. I hope I may be permitted to use the same apology for pointing out mistakes in the opinions of these very learned writers which the
Hon. Mr. Justice Barrington
has applied particularly to the Institutes and Reports of
Sir Edward Coke;
which
"being"
(says he)
the best
LAW-CHART,
and implicitly trusted to, it is proper to take notice of every shoal and rock misplaced, though perhaps not in the proper track of navigation,
p. 91.
GRANVILLE SHARP.
LEX
plus laudatur quando
RATIONE
probatur.
Co. Lit. Epil.
Post varios casus, post tot discrimina rerum, Nunc sequitur conclusio.
(Soli)
"DEO GLORIA ET GRATIA."
Jucunda est praeteritorum laborum memoria.
2 Inst. Epil.