A Declaration of the People's Natural Right to a Share in the Legislature
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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 pronunclat, proditor eft veritatis." 4 Inst. Epil.
LONDON:
Printed for B. WHITE, at HoraceVHead, in Fleet -Street, M.DCC.LXXV
P R E F A C E
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, (1) when I sent the fame 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 arc unreasonably or inconsistent with
legal and constitutional Principles (2); 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(3) . 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 their side, which, (I hope) the second 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 there- fore, 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 necessarily 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 (4)." 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 (5) 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 autocratical 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 (6).” (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 firing 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 Imperial 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 (7); 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(8). I do not find, indeed, that he has literally cited the corrupt maxim, 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 Volntas.” “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 Legislators Will (9)."
Thus the learned Civilian seems to confider 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 already 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 fame 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 cafes, 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 same time or other, afforded an example.
Nevertheless, the learned Baron seems to have neglected these necessary confederations; 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 I, 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 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 Covenant of individuals; “for, in this last case," (fays 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 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 oi 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 Covenant 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 in itself; and he himself is sufficiently sensible of this in another place (10). And, even if an an oath should be obtained to confirm the unjust “Power of the Exactor,” it will not encreate 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 (11)."
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 (12), concerning the necessity of agreement to to make Laws valid, h has asserted also, that neither the divine positive Laws, nor the Laws of Nature, had their rise from the agreement of men,” &c. Book I. c. 6. §. z.
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,” (13) 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 (14), 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 (15): 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 incontestable 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 fame 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 third 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 whole 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 party but even the eternal King himself is conditionally bound also on his part to the performance of the most glorious Promises! (16)
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 indispensably 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 fame Reason, which obliged me to postpone the Third Part of the Declaration already mentioned, obliges 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 requisite 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 (17), (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 he PREFERRED,” “Linea recta semper praesertur 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, being contrary to that which is Right and Straight,'" &c, (‘See, in the margin below, the remainder of this Remark (18).
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 (19). 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(20).
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 distinction 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 that 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 re-marked 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 (21); and therefore those Writers, who attempt, by any fallacious sophistry, to withdraw our British Soldiers (22) from their obedience to the eternal Law, or from that allegiance which they indispensably owe to the empire of Reason and Conscience, may justly be said to treat 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 (23); so they are equally enabled (and indeed entitled) thereby to judge (24) 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 (25). 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 (26)," 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 (27) 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, (not-withstanding the freedom of the following Declaration,) than GRANVILLE SHARP.
A DECLARATION
O F T H E
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 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,) (1) “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,) (2) “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 forever 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 Leg. et 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 (3) 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 arc 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 practiced 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 the precipice." (4) 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;(5) 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; (6) 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 levied, without manifest Robbery and Injustice, where this legal and constitutional Representation is wanting is because the English Law abhors the idea of taking the lead property from Freemen without their free consent — “It is iniquitous” (iniquum est,” says the maxim) (7) “that Freemen should not have free disposal of their own effects;” — and whatever is iniquitous can never be made lawful (8) by any authority on earth; not even by the united authority of King, Lords, and Commons; for that would be contrary to the eternal (9) Laws of God, which are supreme. (10)
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 (11) (that is, unjust and iniquitous, and therefore unlawful) by the want of these necessary legal Formalities (12) 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 party though to the manifest detriment and injury of another party 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, (13) 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.” (14) And the whole Kingdom, even of Great Britain itself, is only apart 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:" (15) 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; (16) 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: (17) and therefore whatsoever is ordained, that can dearly 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." (18) And indeed it is laid down as a maxim, by the great Lord Sommers, that “no man of 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."(19) 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! (20) 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 withholding 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! I Would this be equitable? could such notorious Injustice (21) 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.” (22) 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 makings of which, the persons most materially concerned on the other part were neither HEARD, nor represented! a defect(23) the most notorious that can possibly be attributed to any proceeding, either in the enabling 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, (24) because the Representation of the People, in every part of the British Empire, is absolutely necessary to constitute an effecual 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 or 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 (25) 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, (26) but it is equally derogatory and injurious to the Authority of the Crown; (27) 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:” (28) so that no Power on earth is tolerable without a just limitation; and Law, which ought to be supreme, (29) cannot subsist where Will and Pleasure are absolute, whether it be the Will of one, of a few, or of many. (30)
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 absolute,) "and not Law.” (31) The fame doctrine is expressed still more clearly in the old Year Books, (32) 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 (33) 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 (34) 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 ally is the fame thing as to be governed by mere Will and Pleasure” (Lord Sommers, p. 24.); and "misera eft servitus ubi jus est vagum aut incertum."
GRANVILLE SHARP. Old-Jewry, London, June 25, 1774.
(C O P Y.)
Extract of a Letter, on 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 fending 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 Politics; so that if the doctor, with the fame 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 cafe 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 Politics; 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, be cause 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 economy, 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 fame 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 possible 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 arid 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 fame 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,” (fays 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 of the fame, 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,” (1) 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.” (2)
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 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 Majefty, 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 English-man, 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!
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 great 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 Huffey, 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 (1):" And though the Doctrine is unconstitutional and dangerous, if admitted in a general unlimited sense (2), yet, in justice to judge Huffey, it must Be allowed, that his Declaration was certainly right with respect to the particular cafe 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 (3) commerce, though the English power, even in that respect, may sometimes perhaps have been extended farther than reason and equity can fairly warrant. Put, before Lord Chief Justice Huffey delivered his opinion, this proper distinction, concerning the English Acts binding the Irish in eternal Transactions, had been made (in his absence) by the other Judges in a preceding term (4); which accounts for the remark of the Reporter, that this opinion of Chief Justice Huffey “was not much denied by the ether Judges, though some of them were of a contrary opinion the last term in his absence.” But, by the expression, that "if was not much denied,” it is apparent, that the other Judges did not receive the doctrine of Chief Justice Huffey, 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 Huffey, 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 Huffy, 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 (5), without paying the least regard to 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 (6) 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 hie 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 Pilkinton's (7) 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. (8).” Sir John Fortescue had declared, that, "if a tenth or fifteenth were granted here, this should not bind those of Ireland, even though the the King should fend 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 (9), “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. before-mentioned, 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 (10).” 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”(11). 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 natural Equity!
But, left 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 (12), 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 binding 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 luckily happens, that he is less reserved in this place than in the other passage already mentioned, where the fame Doctrine is asserted; for here he has attempted to justify his opinion by an example, which, cut 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 acknowledgement, 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 (before-mentioned) 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,”) with out 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. (13) 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 (14): 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 (15); which ancient privilege of the Irish Commons has either been unknown, or else overlooked and forgotten by Lord Coke; and indeed it is not probable that the Irish Parliament was ever summoned to England regularity 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 there 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 render 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 Kings Privy Council in England (16)." 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 Kings Privy-Council, might have been in his parliamentary capacity; for if a due Representation from Ireland were to attend the King here in his Privy-Council, such an Assembly might, without danger, I apprehend, be allowed the powers of an effectual Legislature 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 (17), 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 Hiberniae,) without the lead 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 oi English Statutes (18) 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 subjects 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 contemporaries, could net 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 some evidence, and I am hot apprehensive that any evidence at all can be produced to the contrary.
The fame reply holds good also, against the most material examples cited in Serjeant Mayart’s answer to Sir Richard Bolton's Declaration (19), 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 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, (20) 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 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(21); as if they 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 bad really been the cafe, 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, not-withstanding 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 (22); and he has likewise dated the true effect of that Act in his 1st 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 fame 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." (23) Sir Richard Bolton also informs, 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 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 (24), agreeing in all the Chapters with our Magna Charta, was separately granted to the 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 (25), 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(26), 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" (fays he) “of a matter of fact; for in truth we find” (fays he) “that a 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 confider 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 Hibernicus, as well to English as Irish" (27). 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, be 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 To far from denying, that they are rather desirous to maintain it. (28). 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 acknowledge, and freely accepted by their own express assent and desire. (29)
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 common-sense, 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 alledged, in behalf of this writer and his argument, that Parliaments, before his time, were, ingeneral, 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 the 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, ( 30) 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" (31) of it, “upon which the Kings 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: (32) Errat si quis existimat tutum esse ibi Regem, ubi nihil a Rege tutum est; securitas securitate mutua pacifcenda 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 certainlv very natural for a gentleman regularly bred to the profession of 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. 1. pro statu Hiberiae; and, after informing us that it is not found in the Collection of Irish Statutes, which begin only with the Ordinance 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; (33) as by Poining’s Law, in the time of Henry the Seventh, all precedent" (34) 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 injustice, (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 fending a copy of the Ordinance (35) (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 be 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 (36) 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 Kings 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: (37) 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 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. Harrington 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 (38) by the Army, on the 6th of December, 1648, and the forcible exclusion of about 100 more, (39) by the fame 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 (40) (viz. from four to fix 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 (41); 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 Representative 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 fit for no other purpose than that of lending a pretended parliamentary Authority to the arbitrary measures and wicked resolutions 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 seized 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 (42) of the former Parliament, as well as of the citizens of London (43) in general, and of almost the whole presbyterian party, (including that time a very great majority of the people,) who were earnestly desirous to maintain the antient 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 zealots 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 Oppresion 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 standing Army, held the nation in slavery (44) 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 Legislature out of the Parliament-House (45), and, by the fame redoubtable authority, chose another junto, consisting of 144 Members, without consulting the Nation at ally 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 (46) 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 (47) 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 Republic (48) (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) (49) 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 these arbitrary times, as well to shew the danger of keeping a landing Army, (50) and of permitting a national militia to become such, (51) 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 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 (52) 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, (53) from time to time; so that our more prudent Ancestors (imitating nature) required also an annual(54) 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 Legislature, 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 Legislature, 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 the People of that province,) to the unreasonable pretensions, beforementioned, of the mock Legislature at London; for otherwise, if we were to confider “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 “Appeal 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, (55) &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 English-man, 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 confiders what has been already said upon them, will freely pronounce them illegal, and totally unworthy of being allowed the lead 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-Juftice 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 farther 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, “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 cafe.
“It is not almost credible to foresee" (says he) "when any maxim or fundamental Law of this realm is altered, (as else where hath been observed,) what dangerous inconveniences do follow; which most expressly appeareth by this most unjust and strange Act of II 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. I. 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 vestigla insistunt, eorum exitus perhorrescant." (ibid.) — But, though these two wretched Judges(m) were put to death 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 cafe of Orurke the Irishman, beforementioned, (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 he 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. 1 1. But the Judges, in both these cafes, 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 ARRAIGNED, 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. 1 1 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 (56) 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, (57) the Irishman, are the more inexcusable, for their Resolution upon the Act of 33 Hen. VIII. c23. 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 (58) 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. II . 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 insuffcient in the case of an Irish Peer; and therefore a similar reason is certainly as effectual in the cafe of any private Irish Subject, whose crime is parallel; because true justice is equal in all her ways, and has no respect to persons. (59) For the same Law, which entitles the Nobleman to a Trial by his Peers, (60) secures also, to every other person, his parallel Right to a legal impartial Trial by a Jury of honest unexceptionable NEIGHBOURS: (61) for a Trial can neither be esteemed legal or inpartial, if the Jury are not impannelled in THE NEIGHBOURHOOD where the offence was committed; (62) 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 Terra,) 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 eum imibus, nec super eum mittemus, nifi per legale judicium parium suorum, vel PER LEGEM TERRAE.” Lord Coke refers us, “for the true sense and exposition of these words,” to “the statue 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. )(63) 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 §. 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, (64) who are Neighbours to the Fact, and unexceptionable to the parties concerned, according to the ancient Custom or Law of the Land. (65) 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. IIIc. 1. which is cited by Judge Jenkins for that purpose: (66) 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 (67) 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: (68) 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 (69) 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. (70) and ought to be “VOID IN THE LAW and HOLDEN FOR ERROUR,” according to the second chapter (71) 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 Kings 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 Calvins 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 adapted 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 (72) nor the second (73) are in the least intitled to the name of “Laws made in the Parliament of England,” though they are printed in the Statute-Books. (74)
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." (75) 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 (76) upon which the inferior depends.” And then he immediately adds: “The original and true ground” (says he) “of this Superiority, m 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 (77), 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 incorporated 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 said 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.” I Com. p. 107. This doctrine is unquestionable; and the more so because allowed by himself: And though he has been pleased so 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 must 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 (78): 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 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 turn 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, 1461.
I have been the more particular (as well here as upon Orurke's cafe before-mentioned) 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 .” I Com. p. 161. But that worthy Gentleman needs only to be reminded, that if it should unfortunately happen, from any overfight 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 (79) and 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; (80) or, 3dly, if contrary to any of the fundamental Rights and Franchises declared in the Great Charter; (81) or, 4thly, if contrary to TRUTH; (that is, if any Act be made upon partial information or groundless suggestions, which shall have occafioned a mifreprefentation of truth in the recital of facts;) (82) 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 inadvertently or too hastily made, the most honourable method of getting rid of them is, by the same authority, to declare them null and voidy 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,” 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 suppofes it can (I Com. p. 161.) for the “Power (83) 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.” (84)
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 FREE-EST, they have Limits; for they be not infinite. Nay, when they are most free, they are most bound to good Orders, and to Right-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 second 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 Engand. 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 senilble 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 Bar rington 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 discriminarerum, Nunc sequitur conclusio.”
(Soli) “DEO GLORIA ET GRATIA.”
“Jucunda est praeteritorum laborum memoria.” 2 Inst. Epil.
Footnotes by section:
Preface
(1) I freely acknowledge my deficiency in historical as well as moll 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.
(2) This is clearly proved by a variety of unquestionable maxims;
“Judicandum est Legibus non Exemplis”
“Malus usus abolendus est."
“In consuetudinibus non diuturnitas temporis, fed soliditas rationis consideranda eft."
“Multitudo errantium non parit errori patrocinium."
(3) — et quia consuetudines illae nee centra legem divinam nee contra rationem in aliquo existunt, et pro bono communi totius Regni ex earum diuturnitate censentur, fore necessariae, vim Legis retinent," &c. Docl. et Stud, c, 7.
(4) Principia Leg. et AEquit. p. c6. to which is added, by way of illustration, “Canons therefore bind not the Laity."
(5) The Edition which I have followed is only an English translation printed at Oxford in 1710.
(6) Law of Nature and Nations, Book i. c. 6. p- 55
(7) “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.
(8) “Quod Principi piacuit (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 higher 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 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 fimilia, ac quaedam hiis deteriora, dum in Francia et prope regnum illud conversatus es, audisti non alio, quam legis illius colore DETESTABILIATER DAMNABILITERQUE PERPETRATA, quae hic inferere, 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 practiced there, which in effect are equally dangerous, and cannot be considered in any other light than that of so many evilful 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 the 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 are 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 committing 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 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 cf human Nature, which alone distinguishes men from brutes! I mean the indispensable 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,) Stripped 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 fo 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 fo often driven before them!
(9) Book I. chap. 6. §. I.
(10) “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 of all Obligation to payment in the party who suffered it, &c." Book 3. c. 6. §. 11. p. 225.
(11) “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 cafe, 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.
(12) 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 rime 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 or 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 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.
(13) ”The sting of Death is Sin; and the strength of Sin is the Law.” I Cor. xv, 56.
(14) 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 jubet ea quae facienda funt, prohibetque contraria; eadem ratio 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. — “Ipsa nature ratio, quae est Lex divina et humana.” — And elsewhere he more particularly declares it to be a Divine Attribute. — “Recta, et a 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 humana, ratio, eadem veritas utrobique sit, eademque Lex; quae est recti praeceptio pravique depulsio. Ex quo intelligitur, prudentiam quoque, et meniem a Diis ad homines, pervenisse,” &c.
(15) 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.
(16) 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 (a); “—"A temple of God," by the inward dwelling of his Holy Spirit (b): - “An heir of salvation (c)”— " a joint heir with Christ (4);" and all such shall “COME WITH HIM TO JUDGE THE WORLD §!” 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 Rights 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 left 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.
(a)— “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.
(b)— “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.
(c)— “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.
(d)— “If children, then heirs; heirs of God, and JOINT Heirs with Christ," Romans viii. 17.
§— For “the saints shall judge the world.” 1 Cor, vi. 2.
(17) “Good and Evil are not matters of Law or of Logic. They are the most, if not the only, essential circumstances of the world. They are what everything else refers to. They stamp an eternal mark and difference on all things, which even imagination cannot cancel or erase. The enjoyment of the one, and the avoiding of the other, is the very end of our being, and likewise of all the beings which do or which even can be supposed to exist, and which have a sense and perception of them. Whatever therefore relates to the general Good and Evil of a People is of a public nature. It is that circumstance which makes it so. The terms are as good as synonymous. Whatever concerns, on the contrary, only this or that individual, is of a private nature. It is confined to his or their happiness or welfare to his or their good and evil. There is again the true and unerring criterion. These things seem clear to the greatest degree of intuitive certainty. It is strange to be forced to reason about them!” Considerations on the Measures carrying on with respect to the British Colonies in North America. 2d Edit, p. 156, 157.
The “Considerations" indeed of this sensible Author, in every other part of his work, highly merit the most serious attention of all those persons (of what party soever) who desire real information and good counsel concerning the present disputes with our Brethren in America.
(18) — “Now the LAW, that is" (says Sir Edward Coke) “LINEA RECTA est Index sui et obliqui, And Briton saith that TORT a la Ley est contrarie, and as aptly for the cause aforesaid is INJURY, in English called WRONG. And INJURIA is derived from in and jus, because it is contrary to RIGHT, so as a faire tort is sacere tortum, and Fleta saith, est autem jus publicum et PRIVATUM quod ex naturalibus praeceptis out Gentium, aut civilibus, est collectum, et quod injure scripto JUS appelatur, id in lege Angliae Rectum esse aicitur," And in the Mirror And other places of the Law it is called DROIT, as Droit defend, the Law defendeth.” 1 lnst. lib. 2. c. 12. p. 158. The last two words, however, ought rather to have been rendered the Law forbiddeth, than “the Law defendeth,” because the English verb defend is very seldom used in the Sense which Sir Edward Coke meant to express.
(19) For without these they deserve not the name of men, since a more evident “mark of the Beast” need not be sought for than the neglect of reason and conscience, or the baseness of yielding the same in an active obedience to the arbitrary will of any man or body of men whatsoever.
(20) “I say unto you," (said our Lord,) “my friends, be not afraid of them that kill the body, and, after that, have no more that they can do; but I will forewarn you whom you shall fear: fear him, which, after he hath killed, hath power to cast into Hell; yea, I say unto you, fear him." Luke xii, 5.6,- See also Matthew x, 28.
(21) I am a professed enemy, indeed, to standing Armies; but God forbid that I should be so to the individual incorporated therein, whose true honour, natural dignity, and just privileges, AS MEN, I shall ever be ready to assert and vindicate; and indeed I am bound to do so by that indispensable duty which I owe to the great Author of human Nature, in opposition to the spiritual prince of this world, who is ever plotting to corrupt, vilify, and enslave, that noblest work of God, Mankind! And as this same Love and Regard, which I here profess for the Individuals of the Army, are certainly due also to the Individuals of every other Body of Men, whose general Principles are censured in this Declaration, I must beg leave to assure my Readers, that I do not mean to oppose the Men, but merely their unreasonable Principles, without any personal application whatsoever; for, otherwise, the severity of my expressions (especially against the Church of Rome and the French Government) would be entirely inconsistent with that “Good-Will to Men," which I am indispensably obliged(a), for my own eternal Happiness, to maintain!
(22) See Note in page x. of this Preface.
(23) This point is more particularly examined and proved in my Tract concerning, “the Law of Nature and Principles of Action in Man."
(24) “Do ye not know that the Saints” (which Term is not confined to Persons of any particular Rank or Office) “shall JUDGE THE WORLD? And, If the world shall he judged by you, are ye unworthy to judge the smallest Matters? — Know ye not that we shall JUDGE Angels?—How Much more things that pertain to this life." 1 Cor. vi. 2. 3.
(a)-Upon this point I have written a distinct Tract, which is intended also for publication, and entitled “A Tract on the Law of Liberty."
(25) " Primum Fundamentum Legis Anglicae est LEX RATIONIS, &c. Quae in hoc Regno, ficut in omnibus aliis Regnis, ubiqae tenentur." Doct. et Stud. c. 5. p. 14. There is indeed an inferior order of Maxims (though yet of very great authority) which arise from general customs and the approved ancient determinations of the Courts of Law; and these form, what is called, THE FOURTH foundation of the English Law; though they may be ranked (as the Author of Doctor and Student informs us) with the general ancient customs, on THE THIRD foundation. —“Si quis tamen pro uno solo fundamento ea" (meaning the general customs, and the several maxims arising therefrom) “censeri judicaverit, ad placitum suum, ea pro uno tantum fundamento compotare potest, et tunc secundum ilium quinque fundamenta" (for otherwise he reckons fix in all) “Legis Angiia tantum assignari debent." Doct. et Stud. c. 8. p. 28. But as the true meaning of the said inferior Maxims is not obvious to people in general, like those belonging to the first foundation, it is happy for us that they are not necessary to be known by any persons who do not profess the Law; neither, indeed, can they be known without great study and labour, of which we are well apprised by the learned Author of Doctor and Student. "Haec vero maxima solum in Curiis Regiis, five inter Legis Angliae peritos noscuntur, nec leviter absque magno studio in legibus Angliae habendo cognosci possunt. Ideo pro separabilibus fundamentis ponuntur. Ibid.
(26) The Apostle Paul has delivered a most tremendous learning to those wretched Politicians, who admit the baneful Doctrine — “Let us do Evil that Good may come;” for he immediately adds, — “WHOSE DAMNATION" (says he) “IS JUST," Rom. iii. 8. If those persons, who contend for the absolute Necessity of Bribery , Pensions, and other undue means of parliamentary Influence for the carrying on public Business, would carefully confider the said warning, they would have just reason to be alarmed on account of their own personal danger, for having promoted such a baneful and destructive principle!
(27) “Take away the Wicked from before the King, and his Throne shall be established in Righteousness." Prov. xxv. 5. It is only against some particular Opinions and evil Counsel, and not against the Persons of those who may have promoted the same, that I mean to apply this excellent proverb: The real intentions of such Men, though erroneous, may have been as Sincere as my own; and I therefore protest, that my earnest wish is to promote a change of opinions and measures, rather than of persons, since those, who are once convinced of their former mistakes, may hereafter prove more useful Servants to the public than others, perhaps, whose abilities and conduct are yet untried.
Footnotes for Chapter 1:
(1) Judgement of whole Kingdoms, &c. p. 14.
(2) Hooker's Ecclesiastical Polity, lib, 1, §. 12, p. 87.
(3) I must beg leave to refer the reader also to some excellent observations on this head, in a Pamphlet published since the above was written entitled, An Argument in Defence of the Colonies , p. 76, 77, and 78.
(4) “C’est que dans un Gouvernement tel que celui d'Angleterre, tous les efforts que le Souverain fait pour usurper un pouvoir absolu font autant de pas qui le conduisent vers le precipice." Tome 3, Liv. x. p. 329.
(5) The celebrated Chancellor Fortescue asserts, that a limited or politic Government (like that of England) is infinitely more eligible, for the interest and satisfaction even of the Prince himself, than an absolute regal power: — “Non jugum fed libertas est politice regere populum; securitas quoque maxima nedum plebi, fed et ipsi Regi; alleviatio eriam non minima solicitudinis suae:" — Viz. “That to rule the people by Government politic is no Yoke, but Liberty, and great security, not only to the subjects, but also to the King himself; and further, no small lightening or easement to his charge." (De Laud. Leg. Angl. cap. 34. p. 78.) So that those politicians, who plead the necessity of securing, at any rate, a majority in parliament, to vote implicitly for whatever the Minister proposes, do miserably betray the true interest and peace of their Sovereign! for this fixes upon the King and his Ministers (as in arbitrary governments) the blame and ignominy of every determination that happens to be wrong, which would otherwise either have been overruled by the free Council of the nation, or else must have been equally imputed to the People themselves: and yet this wretched policy has alternately been adopted by all parties, notwithstanding that it is founded (like many of Machiavel's doctrines) on that abominable antichristian principle of mere worldly-minded men, — “Let us do evil that good may come; — whose damnation (lays the apostle to the Romans) is just," Rom. iii. 8. The evil of an undue parliamentary influence they endeavour to excuse by the plea of Necessity for the Good oi the State, though it is certainly the most flagrant Violation of the fundamental principles of the state, and is absolutely destructive of the true interest both of the Prince and People!
(6) “Nedum principis voluntate, fed et totius regni assensu, ipsa (i. e. Angliae sstatuta) conduntur, quo populi laesuram illa efficere nequeunt, vel non eorum commodum procurare," &c. — “Et si statuta haec, tanta solennitate et prudentia edita, efficaciae tantae, quantae conditorum cupiebat intentio, non esse contingant, concito reformari ipsa possunt, et non sine communitatis et procerum regni illius assensu, quali ipsa primitus emanarunt,” &c. Chancel. Fortese. de Laud, Leg. Ang. c. 18, p. 40. b.
(7) “Iniquum est ingenuis hominibus non esse liberam rerum suarum alienationem." Co. Lit. 223. And again: “Quod nostrum est, sine facto five defectu nostro, amiiti seu in alium transferri non potest." 8 Co. 92. “Rerum suarum quilibet est moderator et arbiter." Co. Lit. 223. “Regulariter non valet pactum de re mea non alienanda.” Co. Lit. 223. And again: “Non potest rex subditum renitentem onerare impositionibus." 2 Inst. 6I. from Fortescue, c. 9. and 18.
(8) “Quicquid est contra normam recti est injuria." 3 Buls. 313. And “Lex nemini operatur iniquum — nemini facit injuriam" Jenk. Cent. 22. And therefore “Quod contra legem sit pro infecto habetur.” 4 Co. 31.
(9) “Lex est ab aeterno.” Jenk. Cent. 34.
(10) — “Etiam si aliquod statutum esset editum contra eas," (leges divinas,) “nullius vigoris in legibus Angliae censeri debet,” &c. Doct. et Stud, c. 6, p. 18.
(11) “Qui aliquid statuerit parte inaudita altera, aequum licet dixerit, baud aequum secerit.” Princip. Leg. et AEquit. p. 90. or — “baud aequus suerit,” 6 Co. 52.
(12) “Forma legalis forma essentialis.” 10. Co. — 100. And “Forma non observata insertur adnullatio actus.” 12 Co. 7.
(13) “Iniquum est aliquem rei sui esse judicem." — "In propria causa riemo judex." Principia Legis et AEquitatis, p. 41.
(14) “Neque Rex ibidem, per se, aut ministros suos, tallagia, subsidia, aut quaevis onera alia, imponit ponit legiis suis, aut leges eorum mutat, vel novas condit sine concessione vel assensu totius regni sui in parliamento suo expresso,” &c. Chancell. Fortescue de Laudibus Legum Angliae, c. 36, p. 84. b.
(15) “Ubi eadem ratio, ibi idem lex," or " jus," Princip, Leg. et AEquit. p. 116.
(16) “Major haereditas venit unicuique nostrum a jure et legibus quam a parentibus." 2 Inst. 56.
(17) “The first and highest Treason is that which is committed against the Constitution." Lord Sommers's Judgement of whole Kingdoms, p. 8 - “Est autom injuria omne quod non jure fit." Fleta, 1. 2, c. I. And, on the other hand, “they neither are, nor can be Traitors, who endeavour to preserve and maintain the Constitution; but they are the Traitors, who desjgn and pursue the subversion of it; they are the Rebels, that go about to overthrow the Government of their Country; whereas such as seek to support and defend it are the truly loyal persons, and do act conformable to the ties and obligations of ** fealty." Lord Sommers, p. 9. — Agreeable to this doctrine was the answer of Dr. Sharp, archbishop of York, when the question was put to him, "How a person, who had sworn Allegiance to King James, could , with a good conscience, take the same oath to King William?" To which he replied, " That the Laws of the land are the only rule of our conscience in this matter, and we are no further bound to pay obedience to governors, nor to any other governors, than the Laws enjoin. If, therefore, King William, in the eye of the Law, be our King, we must in conscience pay obedience to him as such. I take this (says he) for a certain truth, that, as the Law makes the King, so the same Law extends, or limits, or transfers, our obedience and allegiance; and all Oaths imposed by the Law oblige the conscience no further than the Law meant they should oblige. Only this is always to be remembered that, whatever Obedience the Laws of the land require of us, it is to be understood with this proviso, that it be not contradictory to the Laws of God. But in that case we must obey passively, though we cannot obey actively: and with this tacit condition I do suppose all oaths of fidelity in the world are given and taken." Life of Abp. Sharp, part 3d, pag. 24, 25, and 26. MS. written by his Son, for the use of his Grandchildren.
(18) “Quae rerum natura prohibentur NULLA Lege confirmata funt." (Finch, 74.) And “Nihil quod est contra rationem est licitum." Co. Lit. 97.
(19) "Ubi non est condendi authoritas, ibi non eft parendi necessitas." Dav. 69. And "Judicium a non fuo judice datum nullius eft momenti." 10. Co. 76.
(20) " Nam non potest rex Angliae, ad libitum suum, leges mutare regni fui. Principatu namque nedum regali, fed et politico, ipfe suo populo dominatur." And again: "Quia nec leges ipse" [rex] “fine subditorium assensu mutare poterit, nec subjectum populum renitentem onerare impositionibus peregrinis; quare populus ejus libere fruetur bonis suis, Legibus, quai cupit, regulatus, nec per regem suum, aut quemvis alium, depilatur,” &c. Chancel. Fortescue deLaud. Leg, Ang. c. 9, p. 26.
(21) "Si a jure discedas, vagus eris, et erunt omnia omnibus incerta." Co. Lit. 227. And, “Rerum ordo confunditur si unicuique jurisdictio non fervetur.” (4 Inst. proem.) For, if the fundamental Rule of the Constitution be set aside even in one instance, the baneful influence of such an evil precedent will soon prepare the way for the Declaration of the whole Law; because, “uno absurdo dato, infinita sequuntur.” 1 Coke, 102.
(22) If the preceding arguments are not sufficient to prove in what light the said Act is to be considered, yet the present distinct and separate Jurisdiction of the Irish Parliament, the Continuation of their ancient and constitutional Privileges, notwithstanding the doctrine asserted in the said Act, and their annual Transactions, both in Taxation and Legislation, are Facts, which prove (better than Arguments) that the people of Ireland have an inherent Right to enact Laws independent of the British Parliament; otherwise the King's Assent would not be sufficient to render the said laws valid and binding without the especial approbation and consent also of the British Parliament, which indeed is never required; so far is it from being necessary! And, farther, the inhabitants of Great-Britain would think it extremely unreasonable and unjust, if the Parliament of Ireland should claim a Right of making Laws, with the Kind's assent, to bind any part of this Island! The Argument is reciprocal: so that, if we should really detest such a measure against ourselves, the Law of Laws forbids us to claim the like power over any of our fellow-subjects, without their free consent. “Non facias alteri quod tibi non vis fieri." This is laid down as one of the most common precepts of the Law of Reason (Doct. and Stud. c. 2, p. 7.); and such is the immutability of the Law of Reason, that against it there can be no prescription, statute, or custom; and, if any are made contrary thereto, they are not to be esteemed statutes or customs, but corruptelae, i. e. Corruptions or Depravities — “Non funt statuta sive consuetudines, sed corruptelae.” Doct. and Stud. c. 2, p. 5. To the same effect is that Command of Christ himself, (recorded in Matt. vii. I2.) which our Lord declared to be “the Law end the Prophets;" viz. “Whatsoever ye would that men should do to you, do ye even so to them: for this is the Law and the prophets”: so that it may justly be intitled, the Law of Laws; and a statute, therefore, which is contrary thereto, is doubly unlawful.
The separate interests of the two Kingdoms are sufficiently restrained, with respect to each other, by our excellent Constitution of State, which requires the Assent of the People, (that is, of those which are concerned respectively,) to render any Law valid and binding upon either nation; which, the foregoing arguments demonstrate: and I hope the ingenious and sensible author of the argument in defence of the Colonies (lately published) will acknowledge, that he has allowed too much, when he admits, in page i 14, that “the whole kingdom of Ireland is bound by the Acts of the Supreme Legislature, &c." which doctrine leads him afterwards to make a distinction between Taxation and Legislation.
And again, the two kingdoms are so firmly united, by the bands of Allegiance, to one Head (or Monarchy) of limited power, that their interests in all material external exigencies are thereby rendered mutual, as well as their internal interests, in the maintenance of natural and constitutional Liberty, in each kingdom respectively; because one of them cannot be deprived of this, (as they are governed by the same Head,) without hastening the destruction of the other. And this intimate connexion of mutual interest in the constitution of state, and in the reciprocal enjoyment of the same reasonable common Law, (whereby each kingdom enjoys an Equality of privilege, and natural freedom,) renders the Union of the two kingdoms more just and equitable, and, consequently, more safe and durable, than it could possibly have been made by any other means: and the inhabitants of both islands (though sprung from a variety of jarring, jealous, and fierce nations) have, by these means, acquired a certain mutual consideration for each other, as fellow-subjects, which could never have been produced by mere alliances, guarantees, or defensive leagues, nor, perhaps, by any other mode of government whatever, than that by which divine Providence has effected it; viz. the English Constitution: this has firmly united the Strength of the two Islands; whereby reciprocal succour, in time of need, is insured to both.
(23) “Qui aliquid statuerit, parte inaudita altera, licet aequum dixerit, baud aquum fecerit:" so that, if any act is ever so just in itself, yet it becomes otherwise (that is, unjust and iniquitous, as is before remarked) by the want of these legal formalities.
(24) Every establishment in the American Colonies has been settled by our ancestors as nearly as possible to the constitutional form of government in the Mother-Country; and, as the advantages of this mode have been proved by the experience of more than a century; (see an argument, just published, in defence of the exclusive Right, claimed by the Colonies, to tax themselves, p. 36, 39, 44.) it is very dangerous (now that the Colonies begin to be filled with people) to vary the ancient and approved Form of the Constitution. "Periculosum est nes novas et inusitatas inducere,” Co. Lit. 379. And, “Claudulae inconsuetae semper inducunt suspicionem." 3 Co. 81. And again, “Quae praeter consuetdinem et morem majorum siunt neque placent, neque recta videntur" 4 Co. 78. And lastly, “Whatsoever is against the Rule of Law is inconvenient." Co. Lit. p. 379.
(25) The toleration of domestic Slavery in the Colonies greatly weakens the claim or natural Right of our American Brethren to Liberty. Let them put away the accursed thing (that horrid Oppression) from among them, before they presume to implore the interposition of divine Justice; for, whilst they retain their brethren of the world in the most shameful involuntary servitude, it is profane in them to look up to the merciful Lord of all, and call him Father!
(26) “To extend the Governor's Right to command, and Subject's Duty to obey, beyond the Laws of one's country," (said that learned lawyer, Lord Sommers,) "is Treason against the Constitution, and Treachery to the society whereof we are members." Judgement of whole Kingdoms, &c. p.6.
(27) “Nor is it merely the first and highest Treason in itself, that a member of a political society is capable of committing, to go about to subvert the Constitution; but it is also the greatest Treason he can perpetrate against the Person, Crown, and Dignity of the King; for such an endeavour both annuls and vacates all his title to superiority over those above whom he was exalted from the common level by virtue of the Constitution, and deprives him of all rightful and legal claim of rectoral authority over the society, by destroying the alone foundation upon which it was erected and by which he became veiled with it,” &c. Ibid. p. 9 & 10.
(28) "Cui plus licet quam par est, plus vult quam licet." 2 Inst. 465.
(29) “Firmior et potentior est operatio legis quam dispositio hominis." Co. Lit. 102
(30) "Whosoever" (says Aristotle) “is governed by a man without Law, is governed by a man and by a beast." Lord Sommers, N. I 1. " Ipse autem rex non debet esse sub homine, sed sub Deo, et sub lege; quia lex facit regem. Attribuat igitur rex legi quod lex attribuit ei, videlicet dominationem et potestatem: non est enim rex ubi dominatur volufitas, et non lex.'* Brafton, lib. i, c. 8. ------ “Rex autem habet superiorem, Deum. S. ---- Item legem, per quam factus esi rex. — Item curiam suam," &c. ---- Et ideo si rex fuerit sine sraeno, i.e. sine lege, debent ei fraenum ponere," &c. Bract. lib. 2, c. 21, p. 34.
(31) — "Non est enim rex ubi dominatur voluntas, et non lex." Bract. lib. i, c. 8, p. 5, b.
(32) "La ley est le plus haute inheritance que le roy ad: car par la ley il meme et touts ses sujets font rules, et si le ley ne suit, nul Roi, et nul inheritance, sera." 19 Hen. VI. 63.
(33) “Ubi non eft condendi authoritas, ibi non est parendi necessitas." Dav. 69. Prin. Leg. et AEquit. p. 117.
(34) “Insuper lex rationis permittit plurima fieri, ut seilicet quod licitum est vim vi repellere, et quod sas unicuique se tueri et rem suam defendere contra vim injustam." Doct. ct Stud. c. 2, p. 8. — See also Bracton, lib. 4, c. 4, p. 162. b.
Footnotes for section 2 of chapter 1:
(1) Whereas it hath been found, by former experience, that the Courts of Wards and Liveries, and Tenures by Knights-Service, either of the King or others, or by Knights-Service in capite, or Soccage in capite of the King, and the consequents upon the fame, have been much more burthensome, grievous, and prejudicial," &c.
(2) See 2d and 4th Sections of the said Act.
Footnotes for chapter 2:
(1) “Huffey, Chief Justice, disoit que les Statuts faits en Angleterre liera ceux de Ireland, que ne suit moult dedit des autres Justices, nient obstant que aucun de eux furent en contraria opinione le derrein term en son absence." Year-Book, i Hen. VII. p. 3.
(2) Which is clearly proved by Sir Richard Bolton, Chancellor of Ireland, in the Declaration, &c. printed in Harris's Hibernica, p. 29. - “As to the Opinion of Huffy, Chief Justice, in first of Hen. 7. fol. 3. that the Statutes made in England shall bind them of Ireland, this Opinion, as it is put by him generally, cannot he law; for Brooke, in abridging that case in title Parliament, Sect. 19. faith, that the opinion was denied to be law, the last term before; and added further, tamen nota, that Ireland is a Realm of itself and hath a "Parliament in itself implying thereby, that Ireland could not be bound but by a Parliament of Ireland. And according to that is the opinion of the Judges in 20th Hen. VI. fol. 8. in John Pilkington's cafe; and in 2d Rich. III, fol. 11. in the Merchants of Waterford's case, before remembered; and likewise contrary to the opinion of Huffy, are the judgements of eight several Parliaments in Ireland before the Statute of 10th of Hen. VII. viz. 13th of Edw. II. 19th of Edw. II. 18th of Hen. VI. 29th of Hen. VI. 32d Hen. VI. 37th Hen. VI. and 8th Edw. IV. And, since the Statute 10th Hen. VII. of five Parliaments; viz. 28th of Hen. VIII. 33d of Hen. VIII. 28th of Eliz. 11h of Jam. and 10th Car. besides the Statute of 10th of Hen. VII. itself."
(3) This binding in external transactions seems to be allowed (though unwillingly) by Mr. Mollyneux (a zealous asserter of the liberties of Ireland in the Reign of King William). "They seem" (says he, speaking of English Acts of Parliament) “at the utmost reach, to extend the jurisdiction of the English Parliament over the subjects of Ireland, only in relation to their action, beyond seas, out of the Realm of Ireland, as they are the King of England’s subjects,” &c. p. 71.
(4) “All the Judges" (but we must except Huffy) “were assembled in the Exchequer-Chamber, and there, with respect to the first question, it was said, that the lands of Ireland have a Parliament among themselves, and all Kinds of Courts, as in England; and, by the same Parliament, they make laws and change laws, and are not bound by Statutes (made) in England, because they have not here Knights of Parliament; but this is understood of lands and things only to be effected in those lands, but their persons are subject to the King; and, as subjects, they are bound to any thing out of that land, that is done out of that land contrary to Statute, like as the inhabitants of Calais, Gascoigne, Guienne, &c. while they were subjects of the King, and in like manner are obedient under the Admiral of England concerning any thing done upon the High- Seas, and also a writ of error of judgement given in Ireland (is cognizable) in the King's Bench here in England.”
Anno secundo Rich. III. p. 12. “Omnes Justicia-rii" (but we must except Huffy) “associati suerunt in Camera Scaccarii, et ibi quoad primam questionem dicebatur, quod terrae Hiberniae inter se habent Parliamentum et omnimodo Curias prout in Anglia, et per idem Parliamentum faciunt leges et mutant leges, et non obligantur per statuta in Anglia, quia non hie habent Milites Parliamenti; fed hoc intelligitur de terris et rebus in terris ill' tantum efficiendo, fed perfonae illae sunt subjectae Regis, et tanquam subjecti erunt obligati ad aliquam rem extra terram illam facierdam contra Statutum, sicut habitantes in Calesia, Gascoignie, Guien, &c. dum suerunt subjecti; et fimiliter obedienies erunt sub Admirall' Angliae, de re facta super altum mare: et similiter breve de errore de judicio reddito in Hibernia in Banco Regio hic in Anglia," &c.
(5) “That albeit Ireland was a distinct Dominion, yet, the title thereof being by conquest, the same, by judgement of law, might by express words be bound by Act of Parliament of England." Calvin's Cafe, 7th Rep. p. 444.
(6) See the former note in p. 56. “Quia non hie habent Milites Parliamenti.”
(7) “-------- et auxi la terre de Ireland est severe del'Roiaume d'Angleterre; car si un disme ou quinzime soit grante icy, ceo ne liera ceux d'Ireland; mesq; le Roy manderoit m cel' estat" (for estatute) “en Ireland soubz son Grand Seel, finon que ils veul’ en leur Parliament ceo approver; mes s'ils veul allower ceo, donq sera tenu la et ils seront lies paricel'." Year-Book 19th Hen. VI. p. 8.
(8) The case is stated by Sir Richard Bolton, Chancellor of Ireland, in his Declaration, &c. printed in Harris's Hibernica, p. 15. as follows: “That one John Pilkington brought a soire facias against one A. to shew cause why Letters Patents, whereby the King had granted an office in Ireland to the said A. should not be repealed, whereas the said John Pilkington had the same office granted him by former Letters Patents granted by the same King, to occupy to himself or his Deputy. Whereupon the said A. was warned and appeared, and said, ‘That the land of Ireland, time beyond the memory of man, hath been a land separated and severed from the Realm of England, and ruled and governed by the customs and laws of the same land of Ireland. And that the Lords of the same land, which are of the King's Council, have used, from time to time, in the absence of the King, to elect a Justice, which Justice, so elected, hath power to pardon and punish all felonies, trespasses, &c. and to assemble a Parliament, and by the advice of the Lords and Commonalty to make Statutes; and he alledgeth further, that a Parliament was assembled, and that it was ordained, by the said Parliament, that every man who had any office within the said land, before a certain day, and he puts the day in certain, shall occupy the said office by himself, or otherwise that he shall forfeit his office. And sheweth, further, how the said John Pilkington occupied the said office by a deputy, and that, insomuch as he came not in proper person to reside upon his office before the day, that his office was void, and that the King, by his Letters Patents, granted the said office, so become void, to the said A. and prayed that the said Letters Patents should be effectual, and not repealed.' And upon the plea the said John Pilkington demurred in law. In the argument of which case, it was debated by the Judges, Yelverton, Fortescue, Portington, Markham, and Ascough, whether the said prescription were good, or void in Law: Yelverton and Portington held the prescription void; but Fortescue, Markham, and Ascough, held the prescription good, and that the Letters Patents made to A. were good and effectual, and ought not to be repealed: and in the argument of this cafe it was agreed, by Fortescue and Portington, that if a tenth or fifteenth be granted by Parliament in England, that shall not bind them in Ireland; although the King send the lame Statute into Ireland, under his great seal; except they in Ireland will in their Parliament approve it: but, if they will approve it, then it shall bind in Ireland. And Portington said, that if a tenth be granted in the Parliament of England, that shall not bind in Ireland, because they have not any commandment by writ to come to our Parliament; and this was not denied by Markham, Yelverton, or Ascough. Upon this case these points following are to be observed: First, that the Lords of the Council of Ireland had then power, in the absence of the King, and vacancy of a Lieutenant or Deputy, to elect a Justice, and that is plainly proved by the preamble of the Statutes of 33d of Hen. VIII. chap. 2. in Ireland. The words are these; ‘For as much as continually fithens the conquest of this Realm of Ireland, it hath been used in this same Realm of Ireland, that at every such time, as it hath chaunced the same Realm to be destitute of a Lieutenant, Deputy, Justice, or other Head-Governour, by death, surrender, or departure out of the said Realm, or otherwise, the Council of this Realm of Ireland, for the time being, have used, by the laws and usages of the same, to assemble themselves together to choose and elect a justice, to be Ruler and Governor of this Realm, till the King's Highness had deputed and ordained a Lieutenant, Deputy, or other Governor, for the same Realm; which justice, so being elected, was, and hath been, always, by the ancient laws and customs of this said Realm of Ireland, authorised to do and exercise the said roume of Deputy there, for the good rule and governance, and leading of the King's subjects within the said Realm of Ireland, and in ministration of Justice, with divers other authorities, pre-eminences, and jurisdictions, there; which usage, election, and authority, of the said Justice; hath been many times ratified and confirmed by divers Statutes in this Realm provided and made. But this order of election of a Justice is now, by the said Statute of 33d of Hen. VIII. altered; as by the said Statute more at Large may appear."
(9)"------- et auxi quant a ceo que Fortescue ad dit, que, si un Disme soit grante en le Parliament icy, ceo ne liera ceux d'lreland; Seo veux bien pur ceo que ils n'ont commandment ove nous per breve de venir al’ Parliament." Year-Book, 19th Hen. VI. p. 8.
(10) “And 2d Rich. III. 12." (says he) “Hibernia habet Parliamentum, et faciunt leges, et nostra Statuta non ligant eos, quia non mittunt Milites ad Parliamentum," (which is to be understood unless they be especially named,) “fed personae eorum sunt subjecti Regis ficut habitantes in Calesia, Gasconia, et Guyan,” &c. Calvin's Case, 7 Rep. p. 447.
(11) “Ratio Legis est anima Legis." Jenk. Cent. p, 45.
(12) “10 Octobris, Rex, affectans pacificum Statum terrae Hiberniae, mandavit Richardo de Burgo Com. Ulton. et aliis nobilibus terrae praedictae, quod sint ad Parliamentum fuum quod summoneri fecit apud Westm. in octabus sancti Hillarii prox. ad tractand. ibid, cum proceribus, &c. regni sui super Statu terrae praedictae." Rot. Parl. 8. E. 2. m. 31.
(13) Rot. Parl. 35. E. 3. irrot. sic.
Anno 35. E. 3. deconcilio summonit. pro terr. habentibus in Hibernia. Maria Comitissa Norf. AElianora Comit. Orm. Jana la Despencer, Philippa Comitissa de la Marche, Johanna Fitzwater, Agnes Com. Penbroke, Margaretta de Roos, Matildis Comitissa Oxoniae, Catharina Com. Athol.
ad mittendum si de dignos ad colloquium.
(14) In the same page likewise, (4th Inst. p. 350.) Lord Coke has produced stiii more evidence to prove the Parliamentary Rights of the Irish Subjects; for he cites the Parliament-rolls of 10th of Edw. II. — “De Parliamentis singulis annis in Hibernia tenendis, et de legibus, et consuetudinibus ibidem emendandis;" and he remarks therupon, — "Hereby it appeareth," (says he,) "that there were Parliaments holden in Ireland before this time, and order taken at this Parliament," (says he,) “that they should be holden every year, and the like Acts were made in England, in 4th E.III. and 36th E. III. for Parliaments to be holden in England;” so that regular annual Parliaments were established in Ireland before they were in England!
(15) “Formerly" (says Mr. Mollyneux) “when Ireland was but thinly peopled, and the English laws not fully current in all parts of the Kingdom, it is probable, that then they could not frequently assemble with conveniency or safety to make laws in their own Parliament at home; and therefore, during the heats of rebellions, or confusion of the times, they were forced to enact laws in England. But then this was always by their proper Representatives; For we find, that in the Reign of Edward the Third, and by what foregoes, it is plain it was so in Edwuard the First’s turn; Knights of the Shire, Citizens, and Burgesses, were elected in the Shires, Cities, and Boroughs of Ireland, to serve in Parliament in England; and have so served accordingly. For, amongst the records of the Tower of London, Rot. Claus. 50. Edward the Third, Parl. 2. Memb. 23. we find a writ from the King at Westminster, directed to James Butler, Lord Justice of Ireland, and to R. Archbishop of Dublin, his Chancellor, requiring them to issue writs, under the great Seal of Ireland, to the several Counties, Cities, and Boroughs, for satisfying the expences of the men of that land, who last came over to serve in Parliament in England. And, in another roll, the 50th of Edw. III. Membr. 19. on complaint to the King by John Draper, who was chosen Burgess of Cork by writ, and served in the Parliament of England, and yet was denied his expences by some of the Citizens, care was taken to reimburse him.
If, from these last-mentioned records, it be concluded that the Parliament of England may bind Ireland; it must also be allowed, that the people of Ireland ought to have their Representatives in the Parliament of England. And this, I believe, we should be willing enough to embrace; but this is an happiness we can hardly hope for.
This sending of Representatives out of Ireland to the Parliament in England, on some occasions, was found in process of time to be very troublesome and inconvenient; and this we may presume was the reason that, afterwards, when times were more settled, we fell again into our old track and regular course of Parliaments in our own country; and hereupon the laws aforenoted, page 64, were enacted, establishing, that no law made in the Parliament of England should be of force in Ireland, till it was allowed and published in Parliament here."
(16) “Observations on the more ancient Statutes," &c. p. 145.
(17) “There have been other Statutes or Ordinances, made in England for Ireland, which may reasonably be of force here, because they were made and and assented to by our own Representatives, Thus we find in the White Book of the Exchequer in Dublin, in the 9th Year of Edward the First, a writ sent to his Chancellor of Ireland, wherein he mentions Quadam Statuta per nos de Assenfu Prelatorum Comiturn Baronum & Communitates Regni nostri Hiberniae, nuper apud Lincoln & quaedam alia Statuta posimodum apud Eborum facta. These we may suppose were either Statutes made at the request of the States of Ireland, to explain to them the Common Law of England; or if they were introductive of new laws, yet they might well be of force in Ireland, being enacted by the assent of our own Representatives, the Lords Spiritual and Temporal, and Commons of Ireland; as the words aforementioned do shew: and, indeed, these are instances so far from making against our claim, that I think nothing can be more plainly for us; for it manifestly shews, that the King and Parliament of England would not enact laws, to bind Ireland, without the concurrence of the Representatives of this Kingdom."
(18) -------- “Add hereunto," (says Sir William Petty in his Political Survey of Ireland, p. 31.) “that if both Kingdoms were under one Legislative Power and Parliament, the Members whereof should he proportionable in power and wealth of each Nation, there would be no danger such a Parliament should do anything to the prejudice of the English interest in Ireland; nor could the Irish ever complain of partiality when they shall be freely and proportionably represented in all Legislatures." The same author has also made a very striking remark in p. 97, concerning the necessity of maintaining the independence of the Legisative Power, whether we apply the same to Ireland, or to any other part of the British Empire; for “why should men” (says he) “endeavour to get estates, where the Legislative Power is not agreed upon, and where tricks and words destroy natural Rights and Property?"
(19) The learned Editor of these two Tracts, (Mr. Harris,) who has published them in his Hibernica, (printed at Dublin in 1770,) suppofes, that Sir Richard Bolton was not the author of this Declaration, and informs us, in his Preface, that he is “inclined rather to give the honour of the performance to Patrick Darcey, Esq. an eminent Lawyer and an active Member of the House of Commons in the Parliament assembled at Dublin in 1640," who was the author of a simitar argument delivered by him at a conference with a Committee of the Irish Lords in 1640 (printed in 1643). “The conformity” (says Mr. Harris) “between what is alledged in the Declaration, and in Darcy's Arguments, inclines me to think him the author of that paper." But a conformity in substance, between two authors, upon one and the same national question, is very far from affording so substantial a proof of the real author as the name of Sir Richard Bolton upon one of the manuscripts. Probably the impeachment of Sir Richard Bolton (in the same year) of High-Treason, for betraying (in his capacity of Chancellor of Ireland) the Constitution of that country (A) , might be another reason for Mr. Harris's supposition; but this very contrary behaviour, with which Sir Richard Bolton was charged, does not appear to have been so much the effect of his private opinion, as of his political time-serving, or yielding, with his brethren in Administration, to the arbitrary notions of Lord Strafford, the (then) Lord Lieutenant of Ireland; or perhaps the dangerous increasing power of the Papists at that time might occasion his thus yielding to measures which were so diametrically opposite to his own just principles; though indeed no danger whatever can justify such conduct, since “honesty is always" (most certainly) "the best policy." Nevertheless, not only Serjeant Mayart’s answer acknowledges Sir Richard as the author of the Declaration; but Mr. Mollyneux, in p. 48 and 49, cites a marginal note of Sir Richard's, (when he was Lord Chief Baron of the Exchequer in Ireland,) which he had affixed in his Edition of the Irish Statutes, Stat. 10 Henry VII. c. 22. to the following purport; resembling the substance of the Declaration, attributed to Sir Rich. Bolton, much more than the argument of Mr. Darcy, viz,. “That in the 13th of Edward the Second, by Parliament in this Realm of Ireland, the Statutes of Merton, made the 20th of Henry the Second, and the Statutes of Malbridge, made the 52nd of Henry the Third, the Statute of Westminster the first, made the 3d of Edward the First; the Statute of Gloucester, made the 6th of Edward the First; and the Statute of Westminster the second, made the 13th of Edward the First, were all confirmed in this kingdom, (Ireland;) and all other Statutes, which were of force in England, were referred to be examined in the next Parliament; and so many as were then allowed and published, to stand likewise for Laws in this Kingdom. And, in the 10th of Henry the Fourth, it was enacted in this Kingdom of Ireland, That the Statutes made in England should not be of force in this Kingdom, unless they were allowed and published in this Kingdom by Parliament. And the like Statute was made again in the 29th of Henry the Sixth. These Statutes are not to he found in the Rolls, nor any Parliament Roll of that time: but he (Sir Richard Bolton) had seen the same exemplified under the great Seal, and the exemplification remaineth in the Treasury of the city of Waterford." Mollyneux's Case of Ireland, pp. 48 & 49.
(A) Viz. for having “traiterously contrived, introduced, and exercised an arbitrary and tyrannical Government, against Law, throughout this Kingdom, (Ireland,) by the countenance, and assistance, of Thomas Earl of Strafford, then Chief Governor of this Kingdom." See the 1st Article of Impeachment against Sir Richard Bolton and others, with the Speech of Mr. Audley Mervin on that occasion, taken from Nelson's Collection of Papers, and re-printed at Dublin in 1764, at the end of Darcy's Argument.
(20) “But such Statutes, as have been made in England since the 11th of King John, and are introductory and positive, making new Laws, or any ways altering, adding unto, or diminishing the ancient Common Laws, have not been binding or any ways of force in Ireland, until such time as they have been enacted, allowed, and approved of, by Act of Parliament in Ireland; as may appear by the Judgements of nine Parliaments holden there, viz. in the I7th of Edward II. in a Parliament in Ireland, the Statutes of Merton and Marlebridge, made in the time of Henry III. and the Statutes of Westminfter 1st, and of Westminster 2d, and the Statute, of Gloucester, made in the time of Edward I. were confirmed and approved to be of force in Ireland; and all other Statutes, which were of force in England, were then referred to be examined in the next Parliament, and so many of them, as should be then allowed, and published, to be accepted for Laws in Ireland. And afterwards, in a Parliament holden in Ireland in 19th of Edward II. it was enabled that the Statutes made in England should not be of force in the Kingdom of Ireland, unless they were allowed and published in that Kingdom by Parliament; and the like Statute was made again in 29th of Henry VI. — But these Statutes are not to be found in these parliament rolls, nor any parliament rolls at that time, but the same are exemplified under the great Seal, and the exemplifications were remaining in the Treasury of the city of Waterford. And it is most certain, that not only these parliament rolls, but also many other rolls and records, miscarried in those troublesome and distempered times, which have been in Ireland: For in all the times of Edw. III. — Rich, II. —Hen. IV. — and Hen. V. which is almost an hundred years, there is not any parliament roll to be found , and yet it is most certain, that divers Parliaments were holden in those times. Moreover in 28th of Edw. I.— 5th of Edw. III. —14th of Edw. IIL—25th of Edw. III. — 34th of Edw. III.— and 7th of Rich. II. — divers good laws were made in England by several Acts of Parliament against the extortions and oppressions of Purveyors; which laws were never received, nor put into execution in Ireland, until the 18th of Hen. VI. chap. I. that it was enabled, agreed, and established by parliament in Ireland, that all Statutes made against Purveyors within the Realm of England should be holden and kept in all points, and put in execution in Ireland. Afterwards in the time of Edward IV. a doubt was conceived, whether the Statute made in England in 6th of Rich. II. chap. 5. concerning Rape, ought to be of force in Ireland without a confirmation thereof by Parliament: for the clearing of which ambiguity and doubt, in 8th Edward IV. chap. I. in Ireland, it was enabled, by authority of Parliament, that the said Statute of 6th of Richard W, be adjudged and proved in force and strength; and that the Statute may be of force in this land of Ireland from the 6th day of March then last past, and from thenceforth the said Act, and all other Statutes and Acts made by the authority of the said Parliament, within the Realm of England, be ratified and confirmed, and adjudged by the authority of Parliament in their force and strength from the said 6th Day of March. So as until the said Statute of 8th Edw. IV. — the said Statute of 6th Rich. II. was not wholly of force in Ireland; and that may appear by the words of the said Statute of the 8th of Edward IV. — For by the words thereof the said Statute of 6th Rich. II. was to be of force from the 6th of March thin last past, whereas, the said Statute of 6th Rich. II. had been but a declaration or explanation of the Statute of Westminster 2. chap, 34. it would have been of force at all times since the making of the Statute of Westminster 2d. which was in 13th Edw. I. — — But afterwards, 10th Hen, VII. c. 22. it was enacted in a Parliament in Ireland," (this is one of the Acts commonly called Poining’s Acts,) “that all Statutes then lately made within the said Realm of England, concerning or belonging to the common or public weale of the same, from thence forth should be deemed good and effectual in the law, and over that accepted, used, and executed within the land of Ireland at all times requisite, according to the tenor and effect of the same; and over that by the authority aforesaid, that they, and every of them, be authorised, proved, and confirmed in the said land of Ireland.
“By all which Statutes, made from time to time in Ireland, it plainly appeareth, that all Statutes made in England before 10th Hen. VII. concerning or belonging to the public and commonwealth of England, are made to be of force, and to become laws in Ireland. — In 21st Hen. VIII. chap. 7. an Act was made in England, that makes it felony in a servant that runneth away with the goods of his master or mistress; and this Act was not received in Ireland until the same was enacted by a Parliament holden in Ireland in 33d Hen. VIII. Seff. 1. chap 5.— In 21st Hen. VIII. chap. 19 — There was a law made in England, that all Lords might distrain upon the lands of them holden for their rents and services, and to make their avowries, not naming the tenant, but upon the lands: but this law was not received in Ireland until it was enacted there in 33d Hen. VIII. Seff. 1. chap. 7. — An Act was made in England in Anno 31. Hen. VIII. chap. 1. that joint-tenants, and tenants in common, should be compelled to make partition; which Act was not received in Ireland until it was enacted there in 33d Hen. VIII Seff. 1. chap. 10. — In 27th Hen. VIII. chap. 10. the Statute of Uses was made in England, for transferring of Uses into possession; which Statute was never received, nor of force in Ireland, till the same was enacted in Ireland, 10th Car. 1. chap. 1. — So likewise, 32d Hen. VIII. chap. 1. a Statute was enacted in England, whereby it is directed how lands and tenements may be disposed by will, and concerning wardship and primer seizins; which Statute was never received, nor of force in Ireland, until it was enacted by Parliament in Ireland, in 10th Car. 1. chap. 2. — In Anno 1st Eliz. chap, 5. there was an Act made in England for the uniformity of the Common-Prayer, and Administration of the Sacraments; which Act was not received in Ireland, until the same was confirmed and established by Parliament in Anno 2d Eliz. c. 2. — In Anno 5th Eliz. c. 9. there was an Act of Parliament made in England for the punishment of wilful perjury; which Act was not of force in Ireland until the same was enacted by a Parliament in Ireland, in 28th Eliz. chap. 1. —Another Act was made in England in Anno 3d Eliz. chap. 12. for the punishment of witchcraft and sorcery, and another Act in the same year, chap. 14. for the punishment of forgery; which Acts were not of force in Ireland until the same were enacted by Parliament there, in 28th Eliz. chap. 2, 3. — In 28th Hen. VIII. chap. 15. there was an Act made in England for the punishment of piracy; which Act was not of force in Ireland until the same was enacted in Ireland in 12th of James, chap. 2. In 27th of Eliz. chap. 4. an Act was made in England against fraudulent conveyances, which Act was not offered, nor received in Ireland, until the same was enacted in Ireland, 10th Car. I. chap. 3. — Besides many other Acts made in the several reigns of Henry VIII. — Edward VI. — Queen Elizabeth, — King James, — and the King's Majesty who now is. —In 24th Hen. VIII. chap. 12. &c. an Act was made in England concerning appeals made to Rome, which Act doth by express words extend to all his Majesty's dominions; yet the same was not received, nor of force in Ireland, until it was enacted by Act of Parliament there in 28th Hep. VIII. chap. 6 — Also the Statute of 28th Hen. VIII. chap. 8. made in England concerning the first-fruits of the Clergy, extended by express words to any of the King's dominions; yet the same was not received, or of force in Ireland, until it was enacted there by Parliament in 28th Hen. VIII. chap. 8. Likewise the the Act of faculties made in England 25th Hen. VIII. chap. 21. extended by express words to all the King's dominions; yet the same was not received, or of force, in Ireland, until it was enacted by Parliament in Ireland, 28th Henry VIII. chap, 19."
(21) In this indiscriminate manner Monsieur Rapin has expressed himself, and has thereby given a wrong Idea of the Irish Legislature to such of his readers as do not care for the trouble of seeking better information; for, in speaking of the two Statutes, commonly called Poining’s Acts, (after having mentioned that Act relating to the King's permission for assembling the Parliament,) he adds, “Un autre portoit que tous les Actes faits dans le Parliament d'Angleterre, concernant le Public, seroient observez en Irlande. Ces deux Statuts font encore en force aujourdui." Tome 4. p. 469.
(22) “And, Hil. 10. Jacobi Regis, it was resolved, by the two Chief Justices and Chief Baron, that this word, (late,) in the beginning of this act, had the sense of (before,) so that this Act, extended to Magna Charta, and to all Acts of Parliament made in England before this Act of 10. H. 7. But it is to be observed, that such Acts of Parliament as have been made in England since 10. H. 7. wherein Ireland is not particularly named or generally included, extend not thereunto; for that, albeit it be governed by the same law, yet is it a distinct Realm or Kingdome, and (as hath been said) hath Parliaments there.” 4. Inst. p. 351.
(23) See Sir Richard Bolton's Declarations, &c. in Harris's Hibernica, p. 15.
(24) “For the only mistake of Lord Coke is, that he conceived" (says he) “that Magna Charta was not of force in Ireland ‘till the 10th of Hen. 7. which is only a mistake of a matter of fact; for in truth we find" (continues the Serjeant) "that statute was given to them of Ireland in the first year of Hen. 3. and all the Chapters thereof (except three or four of the last Chapters) are entered in the Red Book of the Exchequer of Ireland, where, in the beginning, after the King's stile recited, he saith, Imprimis concessimus Deo, et hac praesenti Charta noslra confirmamus pro nobis & haeredibus nostrisin perpetuum, quod Hibernica Ecclesia libera fit, &c. - First, we have granted to God, and by this our Charter, confirm, for us and our heirs for ever, that the Church of Ireland be free. - Sir John Davis cites a Record in the Tower, 1st of Hen. 3. Memb. 13. of the like Charter of Liberties granted by Hen. 3. to his Subjects in Ireland, as himself and his Father had granted to the Subjects of England; but yet this mistake is only for that Coke was not informed of that matter of fact." Harris's Hibernica, pp. 226, 227.
(25) For, the English Settlers carried their Rights with them, and the native Irish gladly accepted the English Common-Law, as soon as it was tendered to them by the English Conquerors, of which I have produced ample testimony in a Note on page 108. so that their just title to English Liberty and all the legal Immunities of the Conquerors was clearly established and confirmed by this Irish Magna Charta. - They were very soon afterwards, indeed, wickedly excluded from these equitable Privileges by the inconsiderate English Settlers; many of whom, for the sake of tyrannizing over their poor neighbours, even degenerated (as Sir John Davies informs us in p. 32.) into the lawless Irish manners themselves, adopting the old Irish oppressions of Tanistry, Cosherings, Cuttings, Seffings, Coigne and Livery, &c, under which most wicked (B) pretences they devoured the poor Natives as well as the poorer sort of English Settlers, and thereby occasioned almost continual Wars for several ages; which, in the end, turned out to their own great peril and disadvantage, according to the never-failing maxim, or rather warning, of the Apostle Paul; “If ye bite and devour one another, take heed that ye be not consumed one of another." Gal. V. 15. But, though the Irish were, by this wretched Policy of the English, long deprived of the Benefit of the English Common-Law, yet this by no means deprived them of their just Right or Claim to it, which must necessarily be acknowledged to have been due from the time that the English first settled in that Country.
(B) These most wicked oppressions originally sprang from the undue Power and unlimited Sway of the ancient Irish Chieftains, or Lords, over their poor brethren; but I must refer my Readers, for a particular description of them, to Sir John Davies, who has amply set forth the gross injustice and pernicious effect of such unlimited power in men; nevertheless I am tempted to cite, by way of sample, what he has mentioned in one place concerning the wickedness of Coigne and Livery in particular: for, in shewing the ill effects of English Degeneracy, he remarks, in p 33. "By this" (says he) "it appeareth why the extortion of Coigne and Livery is called, in the old Statutes of Ireland, a damnable Custome, and the imposing and taking thereof made High-Treason. And it is said, in an antient Discourfe" (says he) "of the Decay of Ireland , that, though it were first invented in Hell, yet, if it had been used and practised there as it hath been In Ireland, it had long since destroyed the very Kingdom of Beelzebub." The same bad effects are produced, in some degree, by every kind of Vassalage; so that the bad Policy of establishing Seigneuries in Canada, or elsewhere, is but too apparent.
(26) 2d Inst. p. 2.
(27) Serjeant Mayart also informs us, “That the whole Realm of Ireland was anciently reduced into Counties, and that the English Laws had passage throughout the same, as appears" (says he) by several Pipe-Rolls of the time of Hen. 3. in the Exchequer of Ireland, where there are accounts" (says he) “made for fines, paid by the mere Irish, for Diffeisins, and many other kinds of Trespasses, committed by them in those places, which the Author calls Irish Territories; though some of the Irish, with their posterity after them, being always averse to the English Laws, could not digest them, but hid themselves in the bogs, mountains, &c." But this aversion of "some of the Irish" to the English Laws is easily accounted for, since it appears very clearly, from Sir John Davies's Book, that the Irishry had much more experience and woful knowledge of English Oppression than of the English Laws; for, when any of them were driven from their Lands and Possessions through the avarice, and by the unlawful power, of the great English Lords, who found their interest in treating them as enemies, it was very natural for them to attempt to diffeize, and recover their former Rights and Possessions: and again, when they found no Protection from the English Laws, nor other exertion thereof than that of fining and punishing them for such "Diffeisins,' &c. which were mere Re-entries, it was equally natural for them to imbibe prejudices against the English Laws, and to fly to their Bogs, &c. Thus the English Oppressions were apparently the cause why some of the Irish were averse to the English Laws; which I have expressed more at large in a Note on p. 108.
(28) Case of Ireland, p. 96. "It has ever been acknowledged that the Kingdom of Ireland is inseparably annexed to the Imperial Crown of England, The obligation that our Legislature lies under by Poining's Act, 10 Hen. VII. c. 4, makes this Tye between the two Kingdoms indissoluble. And we must ever own it our happiness to be thus annexed to England; and that the Kings and Queens of England are, by undoubted Right, ipso facto, Kings and Queens of Ireland. And from hence we may reasonably conclude, that, if any Acts of Parliament made in England should be of force in Ireland, before they are received there in Parliament, they should be more especially such Acts as relate to the Succession and Settlement of the Crown, and Recognition of the King's Title thereto, and the Power and Jurisdiction of the King. And yet we find, in the Irish Statutes, 28 Hen. VIII. C 2, an Act for the Succession of the King and Queen Anne; and another, chap. 5, declaring the King to be supreme Head of the Church of Ireland; both which Acts had formerly passed in the Parliament of England. So likewise we find, amongst the Irish Statutes, Acts of Recognition of the King’s Title to Ireland, in the reigns of Henry VIII. Queen Elizabeth, King James, King Charles II. King William and Queen Mary. By which it appears, that Ireland, though annexed to the Crown of England, has always been looked upon to be a kingdom complete within itself and to have all Jurisdiction to an absolute Kingdom belonging, and subordinate to no legislative authority on Earth: Though, it is to be noted, these English Acts, relating to the succession, and recognition of the King's Title, do particularly name Ireland."
See also page 33, where the same author speaks of “Ireland's being annexed to, and, as it were, united with the imperial Crown of England, by several Acts of Parliament, both in England and Ireland, since King John's time. But, how far this operates, I shall enquire more fully hereafter; I shall only, at present, observe, that I conceive little more is effected, by these statutes, than that Ireland shall not be aliened or separated from the King of England, who cannot hereby dispose of it otherwise than in legal succession along with England; and that whoever is King of England is, ipso facto, King of Ireland, and the subjects of Ireland are obliged to obey him as their liege Lord.”
(29) Sir Edward Coke himself bears ample testimony to this. — “Our student must know" (says he) “that King John, in the 12th year of his reign, went into Ireland, and there, by the advice of grave and learned men in the Laws, whom he carried with him, by Parliament, de communi omnium de Hybernia consensu, ordained and established, that Ireland should be governed by the Laws of England, which, of many of the Irish-men," (for the common consent before-mentioned must mean that of the English settlers,) "according to their own desire, was joyfully accepted and obeyed, and of many the same was soon after absolutely refuted, preferring their Brehen Law before the just and honourable Lawes of England." 1st Inst. p. 141.
But this subsequent refusal, and preference given to the Brehen Law, mull not be charged to the native Irish in general; for Sir John Davis, in his “Discoverie of the true causes why Ireland was never entirely subdued," &c. demonstrates that the English Settlers were principally to be blamed for this. He shews, (p. 135,) that “the scopes of land, which were graunted to the first adventurers, were too large, and the Liberties and Royalties, which they obtained therein, were too great for subjects.” — And, in p. 144, that, by “these Grants of whole provinces and petty kingdoms, those few English Lordes pretended to be proprietors of all the land, so that there was no possibility left of settling the natives in their possessions, and, by consequence, the conquest became impossible, without the utter extirpation of all the Irish; which these English Lordes were not able to doe, nor perhaps willing, if they had been able." This he afterwards explains, shewing that false notions of private interest, among the English Lords, prevented both the conquest, and the introduction of the English Law: They hoped to become Lords of these lands which were possessed by the Irish, whereunto they pretended title by their large Grants,"&c, (p. 144.) and that therefore "they persuaded the King of England (p. 145) that it was unfit to communicate the Lawes of England unto them; that it was the best policie to holde them as aliens and enemies, and to prosecute them with a continual warre. Hereby they obtained" (says he) “another royal Prerogative and power; which was, to make Warre and Peace at their pleasure, in every part of the kingdom; which gave them an absolute command over the bodies, lands, and goods," (even) “of the English Subjectes heere;" meaning in Ireland, where he wrote. And he adds, in the same page, “And besides" (says he) "the Irish inhabiting the lands fully conquered and reduced, being in condition of slaves and villaines, did render a greater profit and revennew, than if they had been made the King’s free subjects. They also feared" (as he declares in the preceding page) "that, if the Irish were received into the King's protection and made liege-men and free-subjectes, the State of England woulde establish them" (or rather re-establish them) “in their possessions by Graunts from the Crown," &c. And "The troth is" (says he, in p. 146.) “that those great English Lords did, to the uttermost of their power, crosse and withstand the enfranchisement of the Irish, for the causes before expressed." — And he rightly lays the fault upon the pride, covetousness, and ill-counsell of the English planted heer, which in all former ages" (says he) "have bin the chief impediments of the final conquest of Ireland."
On the other hand, he clearly exculpates the native Irish from the charge of wilfully refusing to be subject to the Laws of England. "But perhaps" (says he, in p. 115) "the Irishry in former times did wilfully refuse to be subject to the Lawes of England, and would not be partakers of the benefit thereof, though the Crown of England did desire it; and therefore they were reputed Aliens, Out-lawes, and Enemies. Assuredly the contrarie doth appeare, as wel by the Charters of Denization, purchased by the Irish in all Ages, as by a petition preferred by them to the King, anno 2 Ed. III. desiring that an Act might passe in Ireland, whereby all the Irishrie might be inabled to use and injoy the Lawes of England, without purchasing of particular Denizations.”
And, in p. 117, he adds: — “I am well assured, that the Irishrie did desire to he admitted to the benefit of the Law, not only in this petition exhibited to King Edw. Ill, but by all their submissions made to King Richard II. and to the Lord Thomas of Lancaster, before die wanes of the two Houses; and afterwards to the Lord Leonard Gray and Sir Anthony St. Leger, when K. Henry VIII began to reform this kingdom. In particular, the Birnes of the Mountaines, in the 34th of Hen. VIII. desire that their countrey might be made Shire-ground, and called the County of Wicklow: And, in the 23d of Hen. VIII. O. Donnel doth covenant with Sir William Skeffington, Quod si Dominus Rex velit reformare Hiberniam,” (whereof, it should seem, he made some doubt,) “that hee and his people would GLADLY bee governed by the Lawes of England."
These quotations sufficiently demonstrate the willingness of the native Irish to adopt the English Laws and Constitution, and that the denial of such a reasonable desire was the just cause of their almost continual rebellions and bloody wars against the English Settlers. However, in the Reign of King James I. the Irishry were restored to their just Rights, “and the benefit and protection of the Law of England communicated TO ALL, AS WELL IRISH AS ENGLISH, WITHOUT DISTINCTION OR RESPECT OF PERSONS," &c. (p. 264.) And Sir John Davies himself was one of the Judges employed in that most grateful business to a benevolent man; I mean the Visitations of justice, whereby the just and honourable Law of England was imparted and communicated to all the Irishry," (P. 265.) And he informs us, in the same page, that "the common people were taught, by the Justices of Assize, that they were FREE SUBJECTS to the Kings of England, and not Slaves and Vassals to their pretended Lords: That the Cuttings, Cosheries, Sessings, and other extortions of their Lords, were unlawful, and that they should not any more submit themselves thereunto, since they were now under the protection of so just and mighty a Prince, as both would and could protect them from all wrongs and oppressions. They gave" (says he) “a willing ear unto these lessons; and thereupon the greatnesse and power of those Irish Lords over the people sodainly fell and vanished, when their oppressions and extortions were taken away, which did maintain their greatness,” &c. In p. 262, he informs us, that Sir Edmond Pelham and himself were “the first Justices of Assize that ever sat in those countries;” (speaking particularly of Tyrone and Tirconnell;) “and in that circuit" (says he) “we visited all the shires of that province: besides which, visitation, though it were somewhat distastfull to the Irish Lords, was sweet and most welcome to the common people; who, albeit they were rude and barbarous, yet did they quickly apprehend the difference betweene the tiranny and oppression under which they lived before, and the just government and protection which we promised unto them for the time to come."
Thus the common people oi the Irishry were at length restored to that equality, in the eye of the law, to which they were justly entitled (though shamefully deprived of it) from the earliest time that the English began to be known in that kingdom, even from the first establishment of the English Conquerors; for Sir John Davies shews, from Matthew Paris's History, that “King Henry II. before his return out of Ireland, held a Counsell, or Parliament, at Lissemore, where the Laws of England were, By all, willingly received; ubi leges Angliae ab omnibus sunt gratanter receptae, et juratoria cautione praestita confirmatae; p, 100. And he informs us, in the next page, that "King Henrie the Third did graunt and transmit the like Charter of Liberties to his subjects of Ireland, as himself and his Father had grauntcd to the Subjects of England, as appeareth" (says he) “by another Record in the Tower, 1 Hen. III. Pat. m 13." And he cites also a writ of the 12th year of the same King, commanding the Lord Justice of Ireland to cause the Charter of King John to be read and confirmed by Parliament; and again, that “the same King, by Letters Patent under the Great-Seal of England, did confirme the establishment of the English Laws made by King John," and that all Writs of the Common-Law should have course there as in England — “Quod OMNIA brevia de communi jure, quae currunt in Anglia, similiter currant in Hibernia," &c. Thus it appears, that all Irish Subjects, without distinction, are entitled, according to the clearest and most unquestionable testimony, to all the Rights, Immunities, and Advantages, of Magna Charta and the English Common-Law.
(30) The late Act, for establishing the Laws of France in the most extensive Province of the British Empire, must indeed seem very strange and unnatural to the genius of Englishmen in general; especially when we consider that even the French inhabitants of that Province themselves are zealous for the “Privileges of English Subjects;" which plainly appears by some Expressions in their late Address to the Governor on that occasion: and we may, therefore, rest assured that they are not, in general, so ignorant, and void of common-sense, as really to prefer the Laws of France to the equitable Constitution of England, howsoever they may have been misrepresented. We must, nevertheless, except a few French Seigneurs, who, having already been allowed greater exclusive Privileges than are consistent with the safety and freedom of their poor neighbours and fellow-subjects, would rather wish to promote the French Laws and Customs (which permit such an unjust Vassalage) than the equitable Laws of England: and we may likewise except the Priests, and some other absolate Bigots to the Romish Religion, who, being entangled in the Slavery of antichristian Principles and "the Doctrines of Devils," are ready to submit to any temporal conditions whatsoever for the fake of that spiritual, or rather Satanical, Bribe, which was wickedly thrown out to them on this occasion: I mean the setting up their adulterated Religion as the established Church of that Province (with a legal Right to collect Tythes, &c.) by national authority. This was the more unjust and inexcusable, because the Romanists had no reason to complain of that Toleration which they so freely enjoyed before. In a note on p. 125, where I have occasion to mention the defects of some supposed Statutes, I have added some examples (which naturally occurred thereupon) concerning the abominable Tyranny and Wickedness of the adulterous Church of Rome; and these, I trust, will sufficiently justify the severity of my expressions against that antichristian Church. See also my "Remarks on several very important Prophecies," part 2, p. 18, and part 4, p. 34.
(31) “Si veut le Roy, fi veut le Loi." The King's Will is Law! Some of the pernicious effects of this detestable maxim I have already shewn in my Preface.
(32) This was the uniform Doctrine of all the antient constitutional Lawyers of England, and especially of the great Chancellor Fortescue, whose opinion I have expressly quoted, and added some farther observations upon the same point, in a Note on page 7 of this Declaration, Part I.
(33) This Sentence contains an implied acknowledgement that a Law made in England, relating to the Government of Ireland, may be “repealed by an Irish Act of Parliament;" and, if this be allowed, (which it certainly ought to be,) there can be no room to suppose the Irish Subjects bound by an English Act “if Ireland is mentioned;” for, wherein is the force or binding of the English Act if the Irish are allowed a Right to repeal it? Such binding amounts to nothing: we may as well say that an English Act binds the Emperor of Morocco and his Subjects, or the wild Arabs, “when especially named," since it can bind no longer than while they shall be willing to submit to it! But, that the Irish Subjects really have a Right to repeal an English Act relating to their own internal Government, (if we may with propriety apply the word repeal to Acts that were originally defective and void for want of the Irish assent,) is clearly proved by Mr. Mollyneux, in his Case of Ireland, Page 76.
(34) Here the Hen. Mr. Barrington confirms what is before laid down in pages 91 and 92, concerning the effect of Poining's Law.
(35) The Hon. Mr. Barrington, in p. 41, very justly remarks, concerning the Statute of Merton, in the 20th year of Hen. III. that the said Statute, as well as many others of this century, seems to be only an Ordinance; the difference" (says he) “between an Ordinance and Statute (according to Sir Edward Coke) confiding in this, that the Ordinance wants the consent of one component part of the Legislature, which is, in all instances, that of the Commons.” Now, this seems to be exactly the case of the Act in question of the 21st of Edw, I. de malefactoribus in Parcis; for, though the Act itself declares that it was ordained by the King “at his Parliament," (a) and “at the instance of the Nobles of his realm,” yet the assent of the Commons is not expressed; which was very well known, even at that time, to be necessary, as the assent expressed in the Acts of the preceding year sufficiently demonstrates; viz. “Our Lord the King, in his full Parliament, and by his common Council, hath ordained," &c. Statute de defensione juris, 20 E. 1. Again, in the Statute of Vouchers, “By his common Council hath ordained," &c. Again, in the Statute of Waste, “Our Lord the King, in his full Parliament, holden, &c. by a general Council hath ordained;" so that a proper Form of declaring the assent of the Commons, even at that time, was very well established, notwithstanding that many Statutes are deficient therein, and consequently are exceptionable in point of authority; as, for instance, the Statute de Escheatoribis, of the 29th year of this reign, seems to be thus defective; for though it is dated very speciously, (like the Acl in question, de malefactoribus in Parcis,) “at the Parliament of our Lord the King at Lincoln," &c. yet it seems only to have been agreed to by the Privy-Council, or the King's Council; — "by his Council it was agreed, and also commanded by the King himself" (er Consilum Regis concordatum eft coram Domino Rege, ipso Rege consentiente et illud extunc fieri et observari precipiente," &c.) — so that it was apparently enacted and ordained only by the King and his Council without the least mention of the Consent of the Parliament, or of the common Council of the Kingdom, and seems therefore to have been a mere Order in Council, though artfully dated, “at the Parliament," in order to give it the appearance of Law. Sir Edward Coke, in his 4th inst. p. 51, gives several instances of supposed Statutes that had been repealed or disaffirmed, (wanting the Assent of the Commons,) which were nevertheless published and enforced as real Statutes; viz. 5 R. II. c. 5.stat. 2, touching enquiries of Heresies, and 2 H.IV. c. 15, against pretended Heretics, giving power to the Bishop, or Ordinary, "to convent before him or imprison any person suspected of Heresie," and ordaining (contrary to the Laws of God) that “an obstinate Heretick" (or any person whom an ignorant popish Enthusiast was pleased to call so) “shall be burned before the people;" both which, as Sir Edward Coke remarks, were disavowed by the Commons, and (yet) the pretended Acts printed (4 inst. p. 51, and 3 inst. p. 40 and 41). Also 2 Hen. V. cap, 7, (which Sir Edward Coke, by mistake, calls cap. 6,) “against Preachers (was) disavowed the next Parliament by the Commons, for that they never assented, and yet the supposed Act (was) printed.” (4 Inft. p. 51.) By such notorious treachery and dishonesty did the Zealots of the Romish Church introduce the papal Tyranny into England.
(a) “Our Lord the King, at his Parliament after Easter, the 21st year of his reign, at the instance of the Nobles of his realm, hath granted and commanded to be from henceforth firmly observed," &c.
Sir Edward Coke, in his 3d lnst. (pages 40 and 41,) clearly proves, from the Parliament-Rolls and other Records, the fraudulent introduction of the above-mentioned Act, in the 5th of Rich. II. by a popish Prelate(b), who at that time was Lord Chancellor: And the same learned author thereupon directs us to “mark well the manner of the penning the Act: for, seeing" (says he) "the Commons did not assent thereunto, the words of the Act be, It is ordained and assented in this present Parliament, that, &c. And so it was, being but by the King and the Lords."
(b) Sir Edward Coke calls him “John Baibrook" 3 Inst. p. 41; but, according to Bishop Godwin, his name was “Robert Braybrook” (De Praesulibus Angliae Com. p. 186.) but both of them testify that he was Bishop of London, as well as Lord Chancellor. Among the blessed effects of his pious fraud the following are reported by Sir Edward Coke, 3d Inst. p. 40. “By colour of this supposed Act," (5 Rich, II.) certain persons that held that Images were not to be worshipped, &c. were holden in strong prison, until they (to redeem their vexation) miserably yielded before these Mailers of Divinity to take an Oath, and did swear to worship Images; which was against the moral and eternal Law of Almighty God!” This and many other such instances of hardened Apostasy in popish Professors sufficiently justify our applying to the papal Tyranny, in general, that Prophecy of the Apostle Paul concerning the “Man of Sin,” that was to be revealed, “the Son of Perdition, who opposeth and exalteth himself above all that is called God, or that is worshipped; so that he, as God, sitteth in the temple of God, shewing himself that he is God" (2 Theff. ii. 3 to 6); and whom the Lord Shall consume with the Spirit of his mouth, and shall destroy with the brightness of his Coming;" (verse 8.) — Oh! that all those persons, whose hearts are not yet entirely “seared with the hot iron” of popish Enthusiasm, may duly consider these glaring instances of popish craft, in opposition to the Laws of God, and consequently the apparent danger of adhering to that church which has so notoriously perverted the Doctrines of the Gospel; lest they should be found in communion with the Enemies of Christ at his glorious Coming!
The same rule enables us to judge concerning the authenticity of many other ancient Acts, wherein the Assent of the Commons is not particularly mentioned, and yet they are published. The constitutions called Statutum de Bigamis, for instance, are declared to have been “set forth in the Parliament after Michaelmas," &c, “Editae suerunt apud Westm. in parliamento post sestum sancti Michaelis," &c. (Mag. Char, cum statutis quae antiqua vocantur, &c, p. 104, b. Ed. 1556.) But when we “mark well the manner of the penning the Act," according to Sir Edward Coke's rule, it appears to be very deficient in parliamentary Authority, though he himself has taken great pains to prove its authenticity. He remarks, that “these words in the 1st chapter (concordatum est per justiciarios et alios sapientes de Concilio Regni) prove it to be by Authority of Parliament; for Concilium Regni" (says he) “is the Lords and Commons, legally called COMMUNE CONCILIUM REGNI.” 2d Inst. p. 267. But, even according to this argument, the word “commune" is apparently wanting, to make up what he himself allows to be the legal expression for the Lords and Commons; and, if we duly confider the words which immediately follow, it must appear that the “sapientes de Concilio Regni," &c. here mentioned, were only such particular sapientes as held Judicial places, (“qui consuetudines et usum judiciorum hactenus habuerunt"); so that the expression cannot, with propriety, be supposed to include the whole representative Body of the Commons, as well as the Lords, &c. but merely the Judges, and such Lords, Prelates, and others, as held judicial places, and were of the King's Council, mentioned in the preamble, viz. In praesentia, &c. quorundam episcoporum Angliae, et aliorum, de Concilia Regis, which Sir Edward Coke (by what authority I cannot guess) is pleased to call a “Committee of both Houses," though it can mean nothing more than a meeting of the King's Privy-Council; and the same may be said of that second meeting, afterwards mentioned, "coram Domino Rege et Concilio suo," wherein the said Constitutions were again read (auditae et publicatae) and ordered to he ingrossed and observed; “quod in scripturam redigerentur ad perpetuam memoriam, et quod firmiter observentur:" which (be pleased to remark) is the principal enacting or enforcing clause of this Act: And, therefore, when we confider that the same was agreed to, or ordained, by the Judges as well as others, ("tam Justiciarii quam alii concordaverunt quod in scripturam," &c. we may be assured that the meeting was not the Parliament, (in which the Judges, as such, have not any vote or voice at all, except that of advising,) but merely the King's Privy-Council: and therefore Judge Shard, as cited by Lord Coke, had, surely, reason on his side, when he, “beholding the manner of the penning of this Act," (compare this with Lord Coke's own Rule, to the same purpose, abovementioned,) “was of opinion that it was no Act of Parliament," though Sir Edward Coke was pleased to censure him, saying, that "the contrary is holden by many express Authorities, both before and after him." (2d. Inst. p. 267.) But what Authorities can be equal to the internal evidence of the Act itself, according to his own rule, “Mark well the manner of the penning?” &c. For, though it may have been allowed the force of an Act, in judicial proceedings, as well as in the writings of some respectable commentators, yet this is nothing but the natural consequence of its having been published and printed, without remarks, among the other Acts, (c) agreeable to the intention of those who unlawfully promoted it. But Lord Shard declared from the Bench, in the Assises at Winchester, (anno 30th E. 3.) that this never was a Statute. Lib. Affisarum, p. 173. “Shard. Negativa nihil implicat. Et ceo que vous paries del' Statut de Bigamis, ceo ne suit unquam ascun Statut."
(c) The undue Authority, acquired by such impositions, was still more notorious, in the credit that has been given, even by the Legislature itself, to the three other false Statutes before mentioned against (what the Papists call) Heresy: two of them are expressly recited, and formally repealed by an Act of Parliament in the 1st of Edward VI. (cap. 12. §. 3.) as if they had really been Statutes ordained by the Authority of the whole Legislature; and all the three false Statutes together are recited, acknowledged, and revived, by another Act of Parliament, in the J. & 2. P. & M. (cap. 6.) and are yet again expressly intitled Statutes,. and as such are formally repealed by a third Act of Parliament in the 1stt of Eliz. c. 1. §. 15. But yet these several great Authorities by no means invalidate the Evidence which Sir Edward Coke has produced, to prove that the said three wicked Ordinances were really no Statutes.
Another objection against this supposed Statute is the apparent evil intention of the 5th Article, “de Bigamis," (from whence it has acquired its title,) which was, to acknowledge a foreign popish Law, as if it were already (without interposition of Parliament) of legal force in England, and needed only some small explanation, with respect to the manner of putting it in execution; an idea this, which all free English Parliaments, even in popish times, most zealously opposed! But, above all, the Iniquity of the foreign Decree itself, which is introduced by this 5th Article, affords the most ample argument against the whole Statute, as it seems to have been drawn up principally for purpose of enforcing, and smuggling in, amongst other articles, that diabolical popish Decretal of Pope Gregory IX. for discouraging lawful Marriages of Widows or Widowers! The Marriages of the Clergy had been absolutely forbid (d) about 200 years before, and those who were already married forcibly separated from their wives, (e) (In open contradiction to the Laws of God,) by a Decree of Pope Gregory VII. which was still farther enforced by his successors; and the Clergy were compelled at length to submit to that unnatural Tyranny, by a variety of the most unjust and cruel laws and oppressions (f) that satanical malice could possibly devise, in the several ecclesiastical Synods of that and the following century.
But the Decree against Bigamy was aimed at the Laity as well as Clergy; since every Layman that could read was (before) entitled to the Benefit of Clergy, when convicted of some particular offences; which privilege was by this Decree taken away from all persons called bigami, or who had been twice married successively, (g) the principal purpose of this new popish Ordinance being to call: an odium and restraint upon lawful second marriages, and confound them with the real Felony of having two wives at one time.
Thus the intention of the Romish Church was apparently diabolical; under a false pretence of extraordinary purity, to discourage lawful Marriages, and thereby ensnare mankind, through their natural frailties, into real pollutions: and it is notorious that the popish tenet of “forbidding to marry" is one of the distinguishing scriptural marks of Antichrist!
(d) As the “forbidding to marry” is ranked by the apostle Paul amongst the “Doctrines of Devils," (1 Tim. iv. 1.) so the papal Antichrist, in very early times, began to discourage the “Marriages of the Clergy: but Pope Gregory VII. alias Hildebrand, a Monster in Iniquity, (to prove which. Dr. Cave has cited unexceptionable authorities, Hist. Liter, p, 535.) more openly revealed “the man of sin" in the 11th Century, and, amongst other notorious manifestations of most impious Tyranny, “made a Decree," (in 1074,) that, “from that time forward, it should no more be lawfull for Priestes to marrye," &c. Bacon’s Reliques of Rome, p. 32 b. This as apparently a contrary Doctrine to what St. Paul preached, and consequently it subjects the Roman See to the Anathema of that Apostle! “Though we, or an Angel from Heaven, preach any other Gospel unto you than that which we have preached unto you, let him be accursed." Gal. 1. 8 & 9. The Marriage of the Clergy had never before been forbidden except among the worst of Heretics, but had been allowed by the whole Church of Christ, from the time of the Apostles, for above 1000 years, down to this unhappy Century: and, with respect to Ireland in particular. Sir Edward Coke informs us, that, “at a Synod holden in Inland, by St. Patrick, their Apostle, it was unanimously agreed that Irish Priests should have Wives." 4 Inst. p. 356.
(e) Bacon's Reliques of Rome, p. 32 b.
(f) See, for instance, the several Decrees of a Council, held at London, by Anselm, Archbishop of Canterbury, in 1108, upon this subject, to oblige the Clergy to forsake their lawful wives, who were mentioned by the Council as Concubines, and were ordered to be delivered up to the Bishops as Adulteresses, together with all the goods of those unfortunate husbands, who persisted in their natural affection! Tenth and laft Article : "Omnia vero mobilia lapforum posthac Presbyterorum, Disconorum,” &c. (meaning the goods of those who continued, to visit their wives,) "tradeniur Episcopis, et Concubina, cum rebus suis, velut Adultera." Howel’s Synopsis Canonum, &c. vol. I. p. 88.
(g) Bigamie (says Sir William Staunford, in his “Plees del Coron." p. 134) “est un counterplee a Clergie," (Lambard calls it an "ungodly and popish Counterplea," Eiren. p. 555,) “sa dire, que cestui, qui demaunde le privilege de son Clergy, suist espouse a unseme, a tiel lieu, deynz tiel dioces, et que le dit seme morust, et ad espouse auter seme," &c.
(36) The compulsive means, used on this occasion, to extort money from the people, sufficiently demonstrate that “the way of Loane, which” (was then) “intended by his Highness, amounted to an exaction of the most notorious nature! Many people were imprisoned, and many others pressed into the land and Tea service, for refusing to contribute. See Rushworth's Collection, vol. 1, p. 426. Sir Thomas Wentworth (afterwards Lord Strafford) was one of the Sufferers on this occasion, for “he was imprisoned, by the Lords of the Council, for refusing the Royal Loan." Supplement to the new and general Biographical Dictionary, p. 474. "His Majesly demanded of the City of London the loan of an hundred thousand pounds." Rushworth's Collection, vol. 1, p. 419. If such precedents were to be admitted, or allowed any weight at all, in this argument, the very same reign would afford precedents sufficient to render the King of England as despotic as the Emperor of Morocco! In the fourth year of this reign, “the King's Commission" was issued “to the Lord-Treasurer and Barons of the Exchequer, and to the Customers of the ports," to collect Tonnage and Poundage without authority of Parliament.— “Know ye, that we, by advice of our Lords," (that is, the Lords of his Council, mentioned in the beginning of the Commission, “declare our Will, that all those duties be levied and collected as they were in the time of our father, and in such manner as we shall appoint: and, if any person refuse to pay, then our Will is, that the Lord-Treasurer shall commit to prison such, so refusing, till they conform themselves: and we give full Power to all our officers, from time to time, to give assistance to the farmers of the same, AS FULLY AS WHEN THEY WERE COLLECTED BY AUTHORITY OF PARLIAMENT." Rushworth, vol. 1, p. 669. Here the Neglect of the “Authority of Parliament" is openly avowed, though the forgetful Monarch was bound under a solemn oath, at his coronation, to maintain the Laws of the land!
(37) The Commissioners were impowered not only to use martial Law “against soldiers or mariners," but also against other dissolute persons, joining with them, or any of them;" whereby, under the latter denomination, a way was opened to render all other persons (besides soldiers and mariners) liable to the uncertain decisions and hasty rigour of martial Law! Any man whatever might be unjustly charged as a dissolute person &c. and the accusation alone, whether true or false, was sufficient to divest the person accused of all the privileges of an English subject, at the very time when he stood most in need of them! So that, if the King's Commissioners should happen to dislike any particular person, within the county, or limits of the jurisdiction, expressed in their Commission, it was possible for them to promote such an accusation, and thereby render themselves Judges tn their own cause; since the King's Commission (contrary to his Majesty's most solemn engagement, before God, at his coronation) deprived the accused subject of a legal Trial and the due Process of the Law, the only defence of the innocent, by substituting an illegal Process in lieu of it! And the horror of this monstrous usurpation of power was much increased by the following circumstance, that the Commissioners were expressly authorized, by their Commissions, to “erect Gallowes or Gibbetts, and in such places as they shall think fit!"
(38) In Rushworth's Collection, 4th part, vol. 2, P. 1355. we read the names of the Members imprisoned by the Army, which were inserted in "the Proposals and Desires of the Army," presented that day to the Parliament by Colonel Whaley and other officers; and in Mr. Rushworth's Diary for the next day, Dec 7,. we find the following Memorandum relating to that transaction: viz, “The Members seized on by the Army were this day removed from Mr. Duke's-house, (commonly called Hell,) in Westminster, where THEY WERE ALL LAST NIGHT, to two inns in the Strand, viz. the King's-Head and the Swan, and there have a guard upon them;" p. 1356.
(39) “Le 7 de Decembre les Membres des Communes, en se rendant a leur Chambre, y trouverent a la porte en dehors et en dedans une garde qui en empecha un grand nombre d'entrer. Le Comte de Clarendon dit qu'il y en eut environ cent a qui on refufa I'entree." Rapin, torn. 8, liv. 21, p. 707.
(40) The orders of the Lords and Commons for raising the militia to oppose the King's commissions of array were dated in 1642, See Rushworth's Collection, part 3. vol. 1. p. 678, 679, 684, 685, 689, and 765.
(41 ) “ — Les officiers et les soldats comprenoient bien qu'on vouioit se defaire d’eux," (that is, the war being at an end, the Parliament was inclined to reduce the number of regular troops by degrees,) “et que la plupart n'etoient gueres en etat d'aller reprendre leur professions, apres avoir ete quatre ou cinq ans occupez a faire la gaerre. Il y avoit dans l’armee un granci nombre d’officiers qui n' etoient avant la guerre que des artisans, et qui ne voyoient qu'avec peine qu'ils alloient etre reduits a quitter leur emplois qui leur donnoient de l'autorite, et a reprendre leurs anciens metiers pour se meler, comme auparavant, dans la foule du petit peuple. Ces gens la, le meme que ceux que les independans avoient attirez dans leur parti, etoient dispofez a tout entreprendre, pour n'etre pas obligez a changer la maniere de vie qu'ils avoient menee depuis quelqaes annees. Cromwell donc, et les officiers de son parti, profitant de cette dispofition, s’attacherent a inspirer a l'armee un esprit de mecontentement contre les deux chambres, en quoi ils ne reussirent que trop bien." Rapin, Tom. VIII. p. 579.
(42) See the Votes of the Commons on the 28th of April, 1648, viz. “I. That the Government of the Kingdom should be still by King, Lords, and Commons. 2. That the ground-work for this Government should be the propositions last presented to the King at Hampton-Court; and, 3dly, That any Member of the House shall have leave to speak freely to any Votes, Ordinances, or Declarations, concerning the King," &c. Rushworth's Collect. part 4. vol. 2. p. 1074.
Tuesday, June 27, 1648, (43) “This day a Petition from the Lord Mayor, Aldermen, and Common Council of the City of London was presented to both Houses of Parliament; the substance thereof, for satisfaction of those that have not seen the Petition, take briefly thus:— That a personal treaty may be obtained betwixt his Majesty and both Houses, in the city of London, or some other convenient place, where it may be most for the honour of his Majesty's royal Person, and preservation of the Parliament, as their honours thought fit; unto which treaty they humbly desire our brethren of Scotland may be invited; that so according to the duty of our allegiance, protestation, solemn league, and Covenant, his Majesty's royal person, honour, and estate, may he preserved; the power and privilege of Parliament maintained; the just Rights and Liberties of the Subjects restored; Religion and Government of the Church in purity established; all differences may be the better composed, and a firm and lasting peace concluded; and the union between the two Kingdoms continued, according to the covenant; ALL ARMIES DISBANDED; and all your soldiers just arrears satisfied; the Kingdom's burthens eased, and the laudable Government thereof, by the good and wholesome Laws and Customs, happily advanced." For this, both Lords and Commons, respectively, thank the petitioners for their good attention to the Parliament, and signify their concurrence in the same sentiments. Rushworth, part 4. vol. 2. p 1167, and 1168.
(44) “J'ai deja dit, que le Parliament n'avoit d'autre appui que l'Armee. C'etoit par le moyen de l’ Armee qu’il tenoit la nation dans la servitude." Rapin, tom. 9, p. 57.
(45) Cromwell,— “apres avoir concerte toutes choses avec les principaux officiers, se rendit au Parliament le 20/30 Avril, accompagne d'un petit nombre d’officiers et de soldats, et sans autre preambule il dit aux Membres du Parliament, qu'il venoit mestre sin a leur autorite dont ils avoient sait un mauvais usage, et que, sans deliberer, ils eussent a se dissoudre sur le champ. En meme temps les officiers et les soldats entrerent, et se tinrent a la porte, pendant que les Membres se retiroient hors de la Chambre. A mesure qu'ils sortoient, Cromwell disoit a l’un, qu'il etoit un yvrogne, a un autre, qu'il etoit un voleur, sans en epargner aucun de ceux qu'il connossoit pour fes ennemis. Ensuite, il donna a garder la Masse, qu'on porte devant l'Orateur, a un de fes Officiers, et ferma les portes a la clef. Cette action etoit extraordinaire, mais elle ne l'etoit pas plus que celle que le General Fairfax avoit sait peu d'annees auparavant, lors qu'il avoit sait chaffer de la Chambre et emprisonner les Membres QUE N'ETOIENT PAS AGREABLES a l’Armee." Ibid. p. 59.
(46) “Ces nouveaux Souverains s'etant assemblez au jour marque, Cromwell les harangua, et, apres avoir fini son discours, il leur delivra un instrument en parchemin, signe par lui meme et par les principaux officiers de l’Armee, par lequel on leur desieroit l’Autorite Souveraine. Cet ecrit portoit, que tous les Sujects d'Angleterre, d'Ecosse, et d’Irelande, etoient tenus de leur obeir, jusqu’au 3-13 de Novembre de l'annee suivante 1654, c'est a dire pendant un au et quatre mois," &c. Ibid. 61.
(47) On the 12/22 of December, 1653. Ibid. p. 63.
(48) “Deux jours apres, le Conseil des Officers, en vertu de I'autorite que le precedent Parlement" (meaning the junto of 144 persons, constituted and chosen merely by the General, or by the Army) “venoit de lui deferer, declara, qu'a l'avenir, LE GOVERNMENT DE LA REPUBLIQUE residercit DANS UNE SEULE PERSONNE, favoir, dans celle d'Olivier Cromwell, General des Armees d'Angleterre, d'Ecoffe, et d'Irlande; et qu'il auroit le titre de Protecteur des trois Royaumes, et qu'il seroit assiste d'ua conseil de 21 perfonnes." Rapin, Tome ix. p. 64.
(49) Viz. from the 16/26 Dec. 1653, to the 3/13 Sept. 1654, as appears by the 1st and 8th Articles of what this military Council were pleased to call “an Act of Government," thereby proving their own usurpation of the supreme legislative Authority; which Authority they were afterwards pleased to lodge in the single person of their General, by the 7th and 8th Articles of the said “Act of Government.” Ibid, p. 64.
(50) I might have saved myself much trouble, upon this point, had I been aware, when I wrote the foregoing pages, that the danger of keeping standing Armies had been so well enforced by Mr. Quincy, in his Observations on the Boston Port Bill. That ingenious and sensible Writer has very judiciously collected a number of unquestionable examples upon the subject, which, together with his own pertinent observations upon them, demand the most serious attention not only of every loyal English Subject, at this time, but of all friends to mankind in general.
(51) The example of military Tyranny, which I have already recited, demonstrates the great danger of permitting any part of a national Militia to be absent, longer than is absolutely necessary, from the particular county or district to which it properly belongs; for, as soon as Militia-Men begin to depend upon their Pay, or “Solde” (h) instead of their industry and the regular daily employments which they followed at home, they cease to be the constitutional defenders of their country, and become mere Soldiers (“Soldats”) or Mercenaries: and therefore, as it is now reported that great pains are, at this time, taken, in the several American Colonies, to renew the ancient discipline of the Militia, in their respective provinces, it is a matter of great consequence, (as well for their own internal Happiness and liberty, as for the preservation of peace and union with the mother-country, and a continuance of that due constitutional subjection, to the Crown of Great Britain, which is the true interest of all parties, as it connects every branch of the empire, and infuses mutual confidence and protection against foreign enemies,) that no persons whatever be allowed the rank of Officers, in any of their provincial Regiments of Militia,unless they have a competent fortune, either in Land or Money, to enable them to live comfortably, without military pay, left they should ever entertain a separate Inierest from that of the Public, and, like the degenerate Militia under Cromwell, enslave their country! Even, a common Militia-Man is not properly qualified for that public Trust (for such it is) unless, from his situation in life, or as the mailer of a family, he has some permanent interest in the welfare of the community.
(h) Diictionnaire militaire," p. 417.
(52) “Ainsi ce Parlement, qui dans son commencement avoit ete compose du Roi, d'une Chambre d'environ six-vingts Seigneurs, et d'une Chambre des Communes, ou il y avoit cinq cens treize Deputez, se vit reduit a une Chambre des Communes composee d’environ quatre-vingts Membres, dont il y en avoit tres peuqui, au commencement de ce Parlement, eussent cinq-cens livres sterling de rente. Cependant ces membres, quoiqu'en si petit nombre, s'attribuoient le nom de Parliament, et agissoit comme ayant reuni, dans leur corps, le pouvoir qui avoit auparavant reside dans le Roy, dans les Seigneurs, et dans les Communes. Cela pourroit paroitre sort etrange, si on n’etoit pas deja informe de ce qui s’etoit passe, et de la terreur que l'Armee inspiroit a tout le monde.” Rapin, tome ix. p. 4.
(53) The sensible and patriotic author of the “Letters from a Farmer in Pennsylvania to the Inhabitants of the British Colonies (1774)," remarks, in a note on page 103, that, “the last Irish Parliament" continued thirty-three years, that is," (says he,) “during all the late reign. The present Parliament there has continued from the beginning of this reign, and probably will continue” (says he) “to the end!”
This is indeed, as he justly calls it, a most “pernicious particularity,” it being a greater defect in the constitutional Liberties of Ireland than any other that I ever heard of; and, as it is apparently contrary to the intention and legal constitution of Parliaments, must necessarily reflect the greatest dishonour on those persons, whoever they are, that have introduced this monstrous infringement on the natural Rights of the Irish Subjects.
These excellent Letters, which contain much seasonable instruction, are said to be written by John Dickinson, Esq. the same eminent Author to whom thanks were most deservedly given, by the Committee for the Province of Pennsylvania, on the 21ft of July last, “for the great assistance they had derived from the application of his eminent abilities to the service of his country, in” (another) “performance," since published, intitled, “A new Essay" (by the Pennsylvanian Farmer) “on the constitutional Power of Great-Britain over the Colonies in America," &c. And the said Committee, with great justice and propriety, recommended that performance, “as highly deserving the perusal and serious consideration of every friend of liberty," &c.
(54) Sir Edw. Coke, in his 4th Inft. p. 9, speaking of the matters of Parliament," informs us of the reasons usually expressed in the writs for calling a new Parliament; as “pro quibufdam arduis urgentibus negotiis, nos statum, et defenfjonem regni nostri Angliae, etEcclesiae Anglicanae concernentibus quoddam parliamentum nostrum, &c. teneri ordinavimus," &c. And he adds, in the next paragraph, “Now, for as much” (says he) “as divers Laws and Statutes have been enacted and provided for these ends aforesaid, and that divers mischiefs in particular, and divers grievances in general, concerning the honour and safety of the King, the State, and defence of the Kingdome, and of the Church of England, might be prevented, an excellent Law was made, anno 36 Edw. III. c. 10. which, being applied to the said Writs of Parliament, doth, in a few and effectual words, set down the true subject of a Parliament in these words: For the maintenance of the said articles and statutes, and redress of divers mischiefs and grievances, which daily happen, A Parliament shall BE HOLDEN EVERY YEAR, as another time was ordained by a statute." Which Statute, here referred to, was made in the 4th year of the fame reign, cap 14. “Item, it is accorded, that a Parliament shall be holden EVERY YEAR ONCE, and more often if need be." But Sir William Blackslone supposes that the King never was “obliged, by these Statutes, to call a new Parliament every year; but only to permit a Parliament to sit annually for the redress of grievances, and dispatch of business, if need be," (I Com. c. 2, p.153.)
It is too true, indeed, that our Kings, in general, did not think themselves “obliged by these Statutes," (as they ought in conscience to have been, for the safety of their souls,) “to call a new Parliament every year:" nay, it is certain that many of them would never have called a Parliament at all, had they not been “obliged” by necessity and the circumstances of the times. But by what authority could a representative in one Parliament take his seat in the next annual Parliament, without re-election, before any laws were made for lengthening the duration of Parliaments? And besides, if the King did “only permit a Parliament to sit annually,” &c, by what authority could the Parliament be convened at all, under such a circumstance, seeing that a mere per-million to sit excludes the idea of a prorogation from year to year? However, the learned Commentator himself very justly observes, in a preceding page, (150,) concerning “the manner and time of assembling” that the “Parliament is regularly to be summoned by the King's Writ or Letter, issued out of Chancery." And it is well known that these Writs are not addressed to ti e knights, citizens, and burgesses, elected for any former Parliament, but to the Sheriffs alone, to cause Knights, Citizen, &c. to be elected; for, when the said Acts were made, such an absurdity in politics had never been conceived in England, as that of entrusting the Representation of the people, for a term of years, (as at present,) to the persons elected! On the contrary, when the business of each Sessions was finished, the Parliament, of course, was at an end; and therefore Lord Coke did not speak in vain, when he mentioned “the excellent Law" (viz. the Act for annual Parliaments) "being applied to the said Writs of Parliament,” &c. before recited.
A man of so much good sense, learning, and judgement, as Sir William Blackstone is master of, must be well aware of the pernicious effects of investing the Representatives of the people with a legislative power, beyond the constitutional term of A single Session, without Re-election; and therefore I cannot but be surprized at the unguarded manner in which he has expressed himself in his Comment on the two excellent Statutes of Edward III. for annual Parliaments; viz. that the King is not, “or ever was, obliged by those Statutes to call a new Parliament every year,” &c. He has caused the word new to be printed in Italics, as if he meant thereby to insinuate, that the Legislatures of those early times were not unacquainted with our modern idea of conferring on the popular Representatives a kind of continued senatorial dignity, without Re-election, for several years together; whereas he certainly must have known that this corrupt modern practice has produced a new order of men amongst us, a most dangerous increase of aristocratical power, which was entirely unknown to our Ancestors in the glorious reign of Edward III. If he could shew that there ever was a Parliament, in those times, that was not a NEW Parliament, his Comment might be justified! But it is notorious that Writs were issued to the Sheriff, for new Elections, almost every year during that whole reign: The Writs, for the most part, are still preserved with the Returns upon them. In the catalogue of Election -Writs, which Prynn has given in his Brevia Parliamentaria Rediviva, p. 4 to 6, there is an account of Writs issued for new Elections in every year of that King's reign, between his 34th (when the last Act for annual Parliaments was made) and his 50th year, except 3, viz. the 40th, 41st, and 48th years; in which years the Records of Summons to the Prelates and Lords of Parliament are also wanting, as appears by Sir William Dugdale's “perfect Copy of Summons to Parliament, of the Nobility,” &c.
And yet this affords no absolute proof that Parliaments were not held in those very years for which the Writs are wanting; because the bundles of Writs for the said years may have been lost or mislaid. The only wonder is, that more have not been absolutely lost, when we confider the very little care that had been taken of them; for Prynne found many of these Writs dispersed amongst a vast miscellaneous heap of other records on various subjects, (as he himself relates in his Episte-Dedicatory to King Charles II. of his Brevia Parliamentaria Rediviva,) calling the said heap a “confused Chaos, under corroding, putrifying cobwebs, dull, and filth, in the darkest corner of Caesar's Chapel in the White Tower, as more useless Reliques not worthy to he calendred,” &c. And, in page .103 of that same work, he speaks of 117 Bundles of Writs, whereof 97 had only been then lately discovered, filed, and bundled, by himself: “But many of these 117 Bundles" (says he) “are not compleat, above half or three parts of the Writs being either rotted, consumed, maymed, torn, or utterly lost through carelessness, wet, cankers, or other casualties; and some of them have not above two, three, or four Writs, and one or two but one Writ and Retorn remaining.”
But that there were really Writs for Parliaments, even in those three years, which appear to be wanting, at least in two of them, is very certain; because it was in the 40th year of this reign, as Sir Edward Coke informs us, (4 Inst. p. 13,) that the Pope demanded homage for the kingdoms of England and Ireland, and the arrears of revenue granted by King John to Pope Innocent III “whereupon the King, in the same year, calleth his Court of Parliament,” (i) &c. as Sir Richard Coke proves from the Parliament-Rolls of that year, No. 8, remarking, at the same time, that the Act then made was "never yet printed." See the margin, 4th Inst. p. 13.
(i) In this Parliament it was unanimously agreed, by the Prelates, Dukes, Counts, Barons, and Commons, (“et la Commun," and again, “et Communes,") “that the said King John, nor no other, could put himself, nor his Realm, nor his People, in such Subjection, without their Assent (‘sans assent de eux'); and, if it was done, it was done without their Assent," (that is, without the Assent of the Commons; for the Assent of the Barons was expressed in the Charter,) " and contrary to his Oath at his Coronation," p. 14. Whereupon Lord Coke remarks, in the margin, that "no King can put himself, nor his Realm, nor his People, in such Subjection, without Assent of the Lords and Commons in Parliament," &c.
And it appears that a Parliament was held also in the 48th year of this reign, because supplies were in that year granted to the King by Parliament, as related by Sir Richard Baker, in his Chronicle, p. 175, viz. “in his eight and fortieth year, in a PARLIAMENT, is granted him a 10th of the Clergy, and a 15th of the Laity." So that there is but one year, out of so many, in which we cannot trace the meeting of the annual Parliaments: And annual Writs for new Elections were regularly issued for the first 18 years of the following reign, (as appears by Prynn's “2d part of a brief Register and Survey of the several kinds and forms of parliamentary Writs,” pages 116 and 117,) till Richard II. (that wretched perjured monarch) had rendered himself absolute, (j)
After considering these unquestionable evidences of the issuing Writs annually for new Elections, it will be difficult to comprehend the meaning of Sir William Blackstone's Comment on the said two Acts for annual Parliaments: "Not that he (the King) is, or ever was, obliged by these Statutes to call a new Parliament every year; but only to permit a Parliament to fit annually for the redress of grievances and dispatch of business, if need be.— “These last words" (says he) “are so loose and vague, that much of our monarchs, as were enclined to govern without Parliaments, neglected the convoking them, sometimes for a very considerable period, under pretence that there was no need of them,” &c.
(j) His arbitrary proceedings very soon afterwards occasioned his own Loss of Power, and total Ejectment from the Throne; so that, notwithstanding. his boasted Fitness in executing his favourite measures, he was at last reduced to the most abject acknowledgements of his own unworthiness to reign.
But “these last words" are not so loose and vague as either to justify his own explanation of the said Statutes, (viz. not “to call a new Parliament every year," but only to permit a Parliament to sit," &c.) or to excuse, in the least degree, the criminal neglects of those depraved monarchs who were inclined to govern without them: for the words, “if need be,” cannot, according to the most obvious sense of the Act wherein they are found, be applied to the main purpose of the Act, (the holding annual Parliaments,) but merely to the remaining part of the sentence, 'viz, “and more often:" that is, "and more often, if need be." The Order, "that a Parliament shall be holden EVERY YEAR ONCE,' is absolute, and the discretionary power, expressed in the words, “if need be," relates apparently to the calling Parliaments "more often:” for, if the said discretionary words, "if need be,"* could, with any propriety, be applied to the whole sentence, the Act itself would have been nugatory; which could never be the intention of the Legislature: but the true meaning and sense of the Legislature is very clearly proved by the histories of those times: for it is manifest, not only that new Representatives were elected every year (with only one exception) for a considerable number of years after the last of the said Acts was made, (which confirms the main purpose of the Acts, viz. the holding annual Parliaments,) but it is also manifest, that Parliaments were frequently held “more often" than once a year; (k) which amply confirms also what I have before said, concerning the meaning of the discretionary power, expressed in the said Act, by the words "if need be.”
(k) Writs were issued for electing 3 new Parliaments in the 6th year of Edw. III. 2 in his 11th year, 3 in his 12th year, and even 4 in his 14th year; and there appear to have been a new Parliaments in the 7th of R. II. See Prynn’s Brevia Parliamentaria Rediviva, p. 5 & 6.
These very frequent Elections (sometimes two, three, and four, times IN ONE YEAR) sufficiently prove that the power, delegated by the people to their Representatives, continued no longer in force than during the Session of the particular Parliament to which they were summoned; which being “once determined," (says Prynne, 1st part of Brief Register, &c. of Parl. Writs, p. 334.) “they presently ceased to be Knights, Citizens, Burgesses, Barons, in any succeeding Parliaments or Councils, unless newly elected and reformed to serve in them, by the King's new Writs, as our Law Books" (referring to 4 Ed. IV. 44. Brook, Officer, 25. 34 Hen. VIII c. 24.) “and experience resolve,” &c. And therefore Judge Blackstone's insinuation, against the calling of a new Parliament, has no real foundation: for, if it was the intention of the Legislature, in the two Acts abovementioned, that the King should ever summon any Parliament at all they must necessarily be understood to mean a new Parliament on all occasions; i. e. not only that the regular Parliaments, which they ordained "to be holden every year once,” should be new Parliaments, but those also that should be summoned upon any extraordinary unforeseen occasions; which is sufficiently expressed in the 1st of the said Acts, by the words, “and more often, if need be,” The meaning of the Act is unquestionably proved by the actual issuing of writs, to the Sheriffs, for electing Knights, Citizens, &c. for two, three, and sometimes four new Parliaments, in one year, as mentioned above: And if any person should object, that such very frequent Election must be attended with insuperable difficulties and inconveniences, we may quote the experience of all ancient times, as affording ample and sufficient proofs to the contrary; “there being not above two or three cases of elections questioned, or complained of, from 49 Hen. III. till 22 Edw. IV.” (that is, more than 200 years,) “for ought that appears by the Retornes or Parliament-Rolls, and not so much as ONE double Retorne or Indenture, wherewith all the late Bundles, or Writs, are stored, and the House of Commons and late Committees of Privileges pestered, perplexed, to the great retarding of the more weighty public affairs of the King and Kingdom.” Prynne, Brevia Parl. Rediv, p. 137. This enormous evil, the retardment of business, by undue Returns, will not (I may venture, without the spirit of prophecy, to assert) be remedied by the new Regulation for that purpose. The Commons were never (in ancient times of Freedom) esteemed the proper Judges of their own Elections, but the King alone, that is, in his limited judicial capacity, by his Justices and his sworn Juries, in the Courts of Common-Law. If my countrymen will seriously confider all these points, they must be convinced that the only sure method of healing the alarming distempers of our political Constitution (l) is to restore to the people their ancient and just Right to elect a new Parliament, “every year once, and more often if need be,” whatsoever Judge Blackstone may think of it!
(l) Viz. the enormous national Debt; the numerous Pensions; the secret parliamentary Influence; a standing Army of near 100 Battalions of Foot, besides Cavalry, in time of Peace! &c. &c. &c. which must render the Estates and property of individuals precarious and insecure, or finally EAT THEM UP with growing burthens, if these fatal symptoms of the most dangerous political consumption are not speedily checked and thrown off, by the wholesome prescriptions of a free and equal Representation of THE PEOPLE.
No Parliament could have any right to deprive the people of this inestimable Law, unless the Representatives had expressly consulted their respective constituents upon it; as the alteration was of too much moment to be intrusted to the discretion of any Representatives or Deputies whatsoever, being infinitely more important than “any new device, moved on the King's behalf, in Parliament, for his aid, or the like;” for the most essential and fundamental Right of the whole body of the Commons (I mean the Principals, not the Deputies or agents) was materially injured by the fatal change, and the people's power of controul, for the general good of the kingdom, was thereby apparently diminished! so that, if it is the duty of Representatives (even in “any new device” of mere “aid, or the like”) to consult their Constituents, how much more, upon the proposal of fo material an alteration in the Constitution, ought they to have answered, that, "in this new device, they DARE NOT AGREE WITHOUT CONFERENCE WITH THEIR COUNTRIES!” These are the words of Lord Coke, who mentions them as the proper answer, “when any new device is moved,” &c. and he adds, “whereby it appeareth" (says he) “that SUCH CONFERENCE is warrantable by the law and Custome of Parliament,” 4 Inst. p. 14; so that no Representative can be justified (according to “the Law and Custome of Parliament") who refuses to receive the Instructions of his Constituents, notwithstanding that several very sensible, worthy, and (I believe) sincerely patriotic gentlemen have lately declared themselves to be of a contrary opinion; but, when they peruse the several authorities which I have cited, concerning the absolute necessity of a very frequent appeal to the sense of the whole body of the people, I trust, in their candour and love of truth, that they will alter their sentiments
(55) This little tract contains a great deal of intelligence and sound reasoning concerning the natural Rights of mankind, and is highly worthy the perusal of every good citizen who desires information concerning the present differences with the British Colonies: and, upon the same occasion, the clear and unanswerable arguments of another able writer also, who signs himself “Free Swiss,” must not be forgot: The title of the work, last mentioned, seems indeed to be the only exceptionable part of it: viz. “Great-Britain’s Right to tax her Colonies, placed in the clearest light, by a Swiss;” for a Right, without a just foundation, cannot with propriety be instituted “a Right;" nevertheless he has, most certainly, "placed in the clearest light" the impropriety of any such claim upon the Colonies.
(m) — “the one was called Richard Empson, the other Edmund Dudley, both Lawiers, and both for having served the Kings turne lately made BARONS OF THE EXCHEQUER." — “Annales of England by Francis Lord Bp of Hereford,” (viz. Bp Godwyn, author of the celebrated hist. de Praesulibus Angliae,) “ — englished, &c. with the author's consent by Morgan Godwyn,” 1630.
(56) They might have alledged, that if an ambassador, sent from this kingdom to France, Spain, or to any other foreign State, out of the Dominions of the imperial Crown of Great Britain, should notoriously betray his King and Country, and plot their Destruction,he might legally and constitutionally be punished according to the letter and meaning of the said Acts of Parliament; and also that any other British Subject whatsoever, that is, in like manner, guilty of Treason to his King and Country, during his residence in a foreign realm, may be treated accordingly; because all men certainly are accountable to their country for any such Treason; and, as they cannot be tried in the foreign realms, where the offences were committed, it is reasonable and just to suppose, that they may be tried in England, by an impartial Jury, though the same are not “neighbours to the fact," nor impannelled de vicineta, that is, from the neighbourhood where the offence was committed; for, though this circumstance is essentially necessary to the Legality of a Jury in every Other cafe, yet the law does not require impossibilities, and it may therefore (perhaps) be legally dispensed with, when it is apparent, from the nature of the case, that such an unexceptionable Jury cannot be obtained, and yet that an exemplary punishment is manifestly due to the Traitor or Traitors: but when Treasons and other offences are committed in any country under the dominion of the Crown of England, where the criminals might have a legal Trial according to the laws of this realm, (as in Ireland,) the said most essential formality of being tried by a Jury de vicineto cannot be dispensed with; because this would deprive the Subject of an unalienable Right, and alter a “fundamental Law of this realm;" so that any Judge, who should venture to enforce the said Acts, in such cases, would manifestly DESERVE AN IGNOMINIOUS DEATH, as much as Dudley and Empson!
The examination of this point gives some general idea how far the Power of the high Court of Parliament (notwithstanding that imaginary “omnipotency" which some men have ignorantly attributed to it) may be allowed to extend; “for the more high and absolute the jurisdiction of the court is, the more just and honourable it ought to be in the proceeding, and to give example of Justice to inferior courts.” 4th Inst, p. 37, Which is most strictly true; for, whenever the supreme temporal powers exceed the honourable limits of natural justice and Truth, they lessen their own dignity, and, in proportion to their errors, forfeit that respectful consideration and esteem, which would otherwise be due from their subjects. And we must remember, likewise, that the being “just and honourable” in mere profession of words, without the reality, will have very little weight with the body of the People, who are endued with common-sense, as well as their superiors, to discern what is just and honourable from that which is merely called so; and that a pretence to justice and honour, in a bad cause, is only an aggravation oi injury and iniquity! The most wicked ordinances have sometimes been ushered into the world under the most fancified titles and specious pretences! The abominable Act beforementioned, of Hen. VII. was expressly said to be against great enormities and offences, which" (have) “been committed, and have daily, contrary to the good Statutes, for many and divers behoovefull considerations, severally made and ordained, to the displeasure of Almighty God, and the great let of the common Law and wealth of the land.”
“Now, notwithstanding this “FAIR FLATTERING PREAMBLE,” as Sir Edward Coke calls it, yet “THE PURVIEW of that act” (as he justly remarked) “tended, in the execution, contrary EX DIAMETRO, viz. to the high displeafure of Almighty God, the great LET, nay, the utter Subversion, of the common Law, and the great Let of the Wealth of this Land;" ibid. p. 40. as, indeed, every other Act of Parliament must inevitably do, which perverts “the due course of the Law,” and robs the subjects of any fundamental Right. (n) And therefore, if any such Act should be made in our days, (howsoever specious the preamble,) is our duty, as good subjects, to remember that the same ought to be considered as null and void of itself, and that it cannot authorize or indemnify the Judges, or any other persons, who presume to enforce it; for all men (and Judges in particular) ought to take warning, (from “the fearful end of those two time-servers, Dudley and Empson,”) that such an active obedience would, perhaps, endanger their own necks! For suppose, 2dly, that such an Act was to be decked with the most flattering title; let us call it, for inftance, “An Act for the BETTER REGULATING the government” of any particular province; or, 3dly, let it be called "An Act for THE MORE IMPARTIAL ADMINISTRATION OF JUSTICE, in the cases of Persons quesioned for any acts done by them in the Execution OF THE Law, or for the Suppression (o) of Riots and Tumults," &c. or, 4thly, suppose such an injurious and unlawful Act should be intitled “An Act for making MORE EFFECTUAL PROVISION FOR THE GOVERNMENT of any particular province, &c. yet, if the Purview" (as Lord Coke justly remarked) of any such imaginary Acts should “tend, in the execution, contrary EX DIAMETRO" to all these specious pretences, set forth in their titles and preambles, by establishing principles whereby “any fundamental Law of the Realm is altered," the same would manifestly endanger the necks (I must repeat it) of any judges that were imprudent enough to enforce force them, notwithstanding that the express authority of King, Lords, and Commons, should be alleged as their sufficient warrant; because we find that the like Authority afforded no justification or excuse for poor Empson and Dudley, in a fimilar case, neither did the consideration of their having acted by parliament any Authority render their wretched fate more pitiable in the eyes of the public! And therefore I sincerely wish that all modern Time-servers may have prudence enough to form (by that plain example) some Reasonable judgement concerning the imaginary “Omnipotence of Parliament," which cannot insure its wretched votaries from the most ignominious punishment! nor secure even the Parliament itself from the just and lasting Censures of the Sages of our Law, such as Lord Coke, for instance, who warned them in another place, also, expressly upon this point: — “By colour of which Act," (says he, meaning the said unjust Act of II Hen. VII.) “shaking this FUNDAMENTAL LAW," (the Law of Juries,) “it is not credible what horrible Oppressions and EXACTIONS, to the undoing of infinite numbers of people, were committed by Sir Rich. Empfon, Knt. and Edm. Dudley, &c. and, upon this UNJUST and INJURIOUS ACT, (as commonly in like cases it falleth out,) a new Office was erected,” &c. And in the next paragraph he adds, — “And the FEARFULL ENDS OF THESE TWO OPPRESSORS” (says he) “should deterre others from commiting the like, and should ADMONISH PARLIAMENTS, that, instead of this ordinary and pretious Trial PER LEGEM TERRAE, they bring not in absolute and partial Trials by Discretion.” 2d Inst. p. 51.
(n) As for instance, let us suppose, (1st,) that an Act is made, to stop up or proscribe the passage to any sea-port town, or any haven, shore of the sea, or great river, without the Consent, and to the great Detriment, of all the neighbouring inhabitants; such an Act would be “fundamentally wrong," as being contrary to the first or most essential Right of mankind, the Law of Nature: for it is clearly laid down by Bracton, that all ports, havens, shores of the sea, and great rivers, are free to all peaceable passengers, (but more particularly, We may add, to the nearest inhabitants.) by the Law of Nature and of Nations: “NATURALI VERO JURE communia sunt omnia baec, aqua profluens, aer, et MARE, ET LITTORA MARIS, quafi matis accessoria. Nemo enim ad littus maris accedere probibetur, dum tamen a villis et aedificiis abstineat, quia littora sunt DE JURE GENTIUM COMMUNIA, ficut et mare," &c. And again: “Publica vero funt OMNIA FLUMINA et PORTUS, &c. RIPARUM etiam usus publicus est DE JURE GENTIUM, sicut ipsius sluminis. Itaque naves ad eas applicare, sunes arboribus ibi natis religare, onus aliquae in eis reponere cuivis liber est, ficuti per ipsum fluvium navigare: fed proprietas earum eft illorum quorum praediis adhaerent," &c. lib, 1, c. 12, p. 7 & 8. So that such an Act would be manifestly contrary to the Law of Nature and Nations, and consequently is such as NO LEGISLATURE ON EARTH can render valid or legal, because natural Rights and the Law of Nature are immutable, “Jura enim naturalia sunt IMMUTABILIA:” And again, “Jura enim naturalia dicuntur IMMUTABILIA, quia non possunt ex toto ABROGARI VEL AUFERRI," &c. Ib. c. 5, p. 4, And besides, it must be remembered, that to proscribe the passage or highway to any city or town (especially if it is done with an avowed design to distrefs the inhabitants thereof in their lawful occupations) is an intolerable nuisance, which is clearly adjudged, in Law, to be such a “Malum in se" as can never be made lawful! — "But MALUM IN SE the King NOR ANY OTHER can dispenfe;” Mes MALUM IN SE LE ROY NE NUL AUTRE poit dispenser, sicome le Roi veut pardonner a occire un autre, ou lui licence A FAIRE NUSANCE IN LE HAUT CHEMIN, CEO EST VOID,” &c. II Hen. VII. p. 12. “Wherefore it is generally true” (as Judge Vaughan remarks.) “that MALUM PER SE cannot be dispensed with,” &c. Rep. p. 334.
Or 2dly, suppose an Act should be made, to impower the Governor of a Province, “without the consent of the Council,” to appoint Judges and other Law-Officers, “who shall hold their Commissions “DURING THE PLEASURE OF" the Crown, instead of the approved and established legal condition,, “quamdiu se bene gesserint;” thereby setting up WILL AND PLEASURE ABOVE LAW AND JUSTICE, which are the first and most essential Rights of the People! — Would not such an Act tend to “the great Let, nay the UTTER SUBVERSION of the Common-Law," &c. ? Suppose like-wise it should be ordained, in such an Act, that “the Freeholders and inhabitants of the several townships," in any particular province, shall not be permitted (even when “they are authorized to assemble together) to treat upon matters of the most GENERAL CONCERN” — “except the business (be) expressed in the leave given by the Governor;” which implies that one or a few individuals have a more equitable pretension “to treat upon matters of the most GENERAL CONCERN” than even the general Meeting, or whole collective Body of persons themselves who are concerned! — a principle which is subversive of all “common Right and natural Equity;” and Consequently must tend “to the high Displeasure of almighty God,” as well as “the great Let of the wealth of the land." And, to compleat the iniquity of such an imaginary Act, let us suppose a clause, whereby “it shall and may be Lawful" (LAWFUL!) “for the justices, &c. in any Cause or Action which shall be brought to issue, to order the said Cause or Action to be tried in any County, OTHER THAN THE COUNTY in which the said Cause or ACTION SHALL HAVE BEEN BROUGHT OR LAID, BY A JURY of such OTHER COUNTY, as they shall judge fit,” &c. — Such a clause must strike at the very Foundation of Justice!
Or, 3dly, if this imaginary Act should not be esteemed suffiently injurious to the People, (though it is apparently calculated to rob them of that fundamental and unalienable Right, “the Trial by a Jury “NE VICINETO,") let us suppose an Act still more PARTIAL (if possible) in the “administration of Justice!” and rendered still more aggravating and insulting by beating a title “contrary EX DIAMETRO” to the purport of it! — Let us (I say) endeavour to stretch that notorious Injustice to the utmost extent of inconvenience and injury that a wicked imagination can possibly conceive or express! that is, to establish a Power of removing the Causes and Trials (and even those which are of the most importance, viz, for capital offences) not only to a neighbouring County, or to a more distant Colony, but even, if caprice should require it, to the furthermost extent of the Globe, that is, (without aggravation,) as far as the East is from the West!
Or, 4thly, if we may conceive the idea of an Act calculated to “fulfil the Measure of Iniquity," let us suppose an Act expressly for the purpose of establishing the arbitrary Laws of France, (“Quod Principi placuit babet vigorem Legis," &c. see my Preface thereupon,) and, in order that it may be destructive to the Souls, as well as the Bodies and Property, of the wretched Subjects, (as I have already shewn,) let us suppose that ample provision is made therein for the Establishment (not the mere Toleration) of downright Idolatry and Image-Worship! for the Toleration of the most notorious Exorcisms (“Exorcismus Aquae;” — “Exorcismum Salis." — “Exorciso te, creatura Salis;" — see the Missal) and SPIRITUAL WITCHCRAFT! In short, let us suppose that such an Act provides for the Establishment of that adulterated Religion which has long been perplexed with all the Enthusiasm of heathen ignorance, (long Prayers, vain Repetitions, “ “as the Heathen do,") and bears the most apparent marks of Antichist, insomuch that we might be certain, at least, who was the first spiritual Instigator and Promoter of such a Bill, though the bodily Proposer of it should be lucky enough to remain undiscovered! Who shall presume to say, that any Power on Earth (whatsoever weak and ignorant men may think of the Omnipotence of Parliament) has Authority or Right, either to establish such notorious spiritual Abominations, or to render lawful such gross Iniquity and palpable Injustice!
(o) Though “the Suppression of Riots and Tumults" is here Included as one of “the fair flattering” Pretences in the Title of the above-mentioned imaginary Act of Parliament, yet it it is apparent that the wicked Act itself would be the most effectual method that could possibly have been deviled for the Promotion, instead of “THE Suppression, of Riots and Tumults;” for which, consequently, none but the Promoters and Makers of such an unjust Law could, with any propriety, be esteemed accountable! since it is true, even to a maxim, that “He makes the Strife (or "Tumult") “who first offends” — “Qui primum peccat, ille facit rixam,” Prin. Leg. et AEquit. p. 92.
(57) Or “Ornick.” See 3d Inst. p. 11, Margin.
(58) “Gerrarde, Chauncelor de Irelande, move cest question al Couniel la Roygne, f. si un Countee ou Seignior de Irelande, que commit Treason in Irelande per overt Rebellion, Terra arraygne et mis a son tryall in Engleterre pour le offense, per l'estatute de 26 H. 8. cap. 13. — 32 Hen. 8. cap. 4. — 35 H. 8, — 2 ou 5 Ed. 6. II. — Et suit tenus per Wray, Dyer, et Gerrarde, Atturney General, QUE IL NE POIT, car il ne poit haver son tryal ici PER SES Peeres, ne per ascun Jury de XII. pur ceo que il n’est subject d’Engleterre, mes de Irelande, et ideo LA SERRA SON TRYAL. Et dictum eft, que le usage la, d'attainder un Peere, est per Parliament, et nemy per Pares.” Dyer's Reports, p. 360. b.
(59) “But if ye have respect to persons, YE COMMIT SIN, and are convinced of the Law as TRANSGRESSORS.” James ii. 9.
(60) “Per pares suos," (Magna Charta, C. 14.) Or per legale Judicium Parium suorum.” lb. c. 29.
(61) — “Per sacramentum proborum et legalium hominum DE VICINETO.” Mag. Charta, c. 14.
(62) — “Justiciarii per Breve Regis scribunt vicecomiti comitatus IN QUO FACTUM ILLUD FIERI SUPPONITUR, quod ipse venire faciat coram eisdem justiciariis, ad certum diem per eos limitatum, duodecim probos et legates homines DE VICINETO ubi illud factum supponitur; qui neutram partium fic placitantium ulla affinitate attingunt." Fortescue de Laud. Leg. Ang. c. 25, p. 54. b.
(63) “Item, Whereas it is contained in the Great Charter of the Franchises of England, that none shall be imprisoned, nor put out of his Freehold, nor of his Franchises nor free Custom, unless it be "BY THE LAW OF THE LAND: It is accorded, assented, and established, that from henceforth none shall be taken, by petition or suggestion made to our Lord the King, or to his Council, unless it be by Indictment or Presentment of his good and lawful People OF THE SAME NEIGHBOURHOOD WHERE SUCH Deeds be done, in due manner, or by Process made by writ-original at the Common Law. Nor that none be put out of his Franchises, &c, unless he be DULY brought in answer, and forejudged of the same BY THE COURSE OF THE LAW. And if any be done against the same, it shall be redressed and HOLDEN FOR NONE." Ed. III. c. 4.
(64) — — “In presentia duodecim side dignorutn virorum FACTO VICINORUM, de quo agitur, et circumstantiis ejus: qui et noscunt eorundem testium mores, maxime si VICINI ipsi suerint noscunt etiam, et si ipsi sint credulitate digni," &c. Fortescue de Laud. Leg. Ang. c. 28, p. 64. See also the 25 and 26th chapters of that excellent little book.
(65) “Item per antiquam Legem, et consuetudinem Regni, omnes exitus quae emergent in aliqua Curia de Recordo infra Regnum, nifi pauci de quibus non est hic necesse tractandum, debet triari per xii. liberos et legales homines DE VICINETO, &c. qui nulli partium ulla affinitati attingent.” Doct. & Stud. c. 7. p. 26 b.
(66) Jenkinfius Redivivus, p. 65.
(67) And Parliaments at that time were preserved in purity and independence by a very frequent renewal of THE POPULAR REPRESENTATION, viz. “every year once, and MORE OFTEN if (there was) need,” &c. which I have already proved in pages 160 to 170 of this Declaration; so that there was not then the least room even for the bare suspicion of undue influence!
(68) In the time of Sir Edward Coke the Charters had been expressly confirmed by THIRTY-TWO DIFFERENT PARLIAMENTS, as he himself witnesses in the Proeme of his 2d Institute: “The said 2 Charters" (says he) “have been confirmed, established, and commanded to be put in execution, by 32 several acts of Parliament.”
(69) Though some particular articles of Magna Charta are indeed rendered useless, at this day, by subsequent Statutes, yet this affords no argument against the general stability of the Charter, with respect to its main object, the Freedom of the People. It is a Charter of Liberties, and therefore the subsequent Statutes, which enlarged those Liberties, (by annihilating the several oppressive customs which are mentioned therein and limited within certain bounds, as Knights Service, Escuage, Wards, and Liveries, &c.) cannot be said to operate against the Charter, but rather in aid of it; for though the said oppresive Tenures and dangerous Prerogatives are permitted by the Charter in a certain degree, yet the apparent intention of the several articles, wherein they are mentioned, was not to establish, but only to restrain them, as much as the circumstances, temper, and prejudices of those early times would permit; so that the Statutes, which afterwards entirely removed the oppression, cannot be esteemed contrary to the purpofe of the Charter, because they enlarged those Liberties and Franchises of the people, to which the Charter itself is so apparently dedicated.
(70) Viz. “That the Great Charter, and the Charter of the Forest be holden and kept in all points; and if any Statute be made to the contrary, THAT SHALL BE HOLDEN FOR NONE.”
(71) — — “It is assented and accorded, for the good governance of the Commons, that no man be put to answer, without Presentment before Justices, or matter of Record, or by DUE PROCESS AND WRIT ORIGINAL, according to the OLD LAW OF THE LAND” (which I have already proved to signify, in an especial manner, the Trial by a Jury of the Vicinage); “and if ANY THING, from henceforth, be done to the contrary, it shall be void IN THE Law and holden for Error.”
(72) A Law concerning the Homage of Parceners, called, “Statutum Hiberniae,” 14 Hen. III. — Mr. Cay” (says the Hon. Mr. Barrington) “very properly observes, that ‘it is not an Act of Parliament,' and cites the old Abridgement, title Homage. He allows it a place, however, in his edition of the Statutes, not to differ from former editors. This, in some measure, gives the authority of Legislation” (says this learned Gentleman, ironically) “to the King's Law-Printers: and yet, if such an ordinance is inserted in every edition of the Statutes, for near 3 centuries together, by printers known to print under the authority of the King's Patent, and the Parliament permits this for such a length of time, it becomes a question of some difficulty to say what force it may have acquired. No such question fortunately can ever arise upon this Statute, as it is merely RESCRIPTUM PRINCIPIS to certain Milites (Adventurers, probably, in the Conquest of Ireland, or their Descendants) who had doubts with regard to the Tenure of lands holden by Knights Service and descending to Co-parceners within age,” &c. Observations on the more ancient Statutes, p. 39.
(73) A Statute of Nottingham, called “Ordinanatio pro Statu Hiberniae,” 17 E. 1. — Upon which the Hon. Mr. Barrington remarks: “It is very singular” (says he) “that, though this Ordinance hath found a place amongst the English Acts of Parliament, the Collection of Irish Statutes, printed by authority at Dublin, begins only with the Ordinances of Kilkenny, in the 3d year of Edward the 2d. There can be no doubt, however, that this Law extends to Ireland, if not repealed by some Irish Act of Parliament; as, by Poyning's Law, in the time of Henry the Seventh, all precedent English Statutes are made to bind in Ireland.” Ib. p. 141 . Nevertheless I must beg leave to observe, that this is neither an English nor an Irish Statute, but a mere letter-Patent of the King, by the Assent of his Council (though it might be dated, perhaps, during the sittings of a Parliament at Nottingham): — “Edward, par la grace de Dieu, Roy Dengliterre, Seignor Dirland, &c. — a toutes ceux, que ceux Letters verront ou oiront, salutes. Saches que a le mendement de gulement de nostre terre Dirlande, a pluis grand peax et tranquill. de nostre people en cel terre a Notin. as octaves del St. Martin, &c. par assent de nostre Counsell illonques,” &c. This is not the stile of an Act of Parliament; neither is the Assent of the common Council, or general Council, expressed, but only “by the Assent of OUR COUNCIL,” that is, the King's Council, which is always understood to signify the Privy-Council, and not the national Council. Befides, the King expressly calls this Ordinance, “Our Letters-Patent," and witnessed it as such, in the usual form, viz. “En tesmoignance de quel chose nous avons sait faire CESTES NOUS LETTERS OVERTES. Done a Noiyngham le 24 jour de Novembre, lan de nostre reigne dix seprisme.” Secunda Pars Veterum Statutorum, printed ann. 1555 , p.68 & 69.
(74) This seems also to be the case with the 3d voucher which he has produced for his assertion, viz, “Laws for Ireland, made by E. 3, per advisamentum Concilii nostri,” &c. That is, if he meant the Laws contained in the Ordinance of that King's 31st year, viz. “Ordinatio facta pro Statu Terrae Hiberniae;” because this Ordinance is no more intitled to the name of a Law, or Act of Parliament, than the two former; for, long before this period, the necessity of expressing the Assent of the Commons, in order to render an Act valid, was well understood, as the Hon. Mr. Barrington remarks, on the 14th of Ed. III. “The Statutes now begin to appear” (says he) “in a new, and more regular form; &c. whilst the Preamble, in every instance, makes express mention of the Concurrence of the Commons,” p. 218; whereas this Ordinance has no such mention of their “CONCURRENCE,” but only the Assent of the Council, that is, the Assent of the King’s Council — “de assentu consilii nostri ordinanda duximus,” &c. whereas the Assent of the great Council of the Nation is expressed in very different terms, as I have remarked in the former notes, as also in the notes on pages 128 and 129.
But if this learned Judge meant any other Laws “for Ireland, made by Edward III.” than this Ordinance of his 31st year, (for he refers us, in the margin, to the Parliament-Rolls of his 5th year,) yet the same cannot afford the least proof or precedent for binding Ireland in England without Assent, because I have already cited ample testimony that the Parliament of Ireland in those days was frequently summoned to England, sometimes to confer with the English Parliament, and sometimes to meet the King and his Council in distinct Sessions of the Irish Legislature. See pages 60 to 80.
His fourth voucher adds no more confirmation to his assertion than the three former; for though it is really an Act of Parliament, yet it cannot be produced is a precedent for binding the Irish Subjects without their Consent, because it is made expressly for the purpose of enforcing an Act of the Irish Parliament, “Estatute fait en la terre d'Ireland;” and therefore, as the question relates only to the carrying the said Law into execution, which is properly the office of the King and his Courts, it is certainly indifferent whether he is advised therein by his Privy-Council or by his Common-Council of England, especially as the latter, in the case before us, were so far from advising the King to invade or alter the Irish Law, that they Confirm it in the strongest terms — “que le dit Estatutute estoise EN SA ENTIER FORCE, et que bien et duitnent foit gardez et PLEINEMENT execute, &c. With respect to his 5th voucher, referring us to the late Acts made in 17 Car. I,” &c. it would be very unfair to draw from thence any conclusions unfavourable to the Privileges of the Irish Parliament, because that was the fatal year of the popish massacre in Ireland, when the Protestant Subjects of that kingdom were almost universally oppressed, and all Law and Regularity overturned by the open Rebellion of the popish party: so that even the Parliament of Scotland (as well as the Parliament of England) thought it right to take the affairs of Ireland under their consideration at that unfortunate juncture; and sent two Commissioners, properly instructed by the States of that kingdom, to treat with the English Parliament about the means of suppressing the Irish Rebellion. Sir John Temple's History of the Irish Rebellion, p. 156 to 158.
But notwithstanding that some Acts might have been made in the 17th of Charles I. without the Assent of the Irish Parliament, yet they afford no evidence in favour of that opinion for which they are cited by the learned Judge; for Mr. Molyneux has proved, by the repeal of those very Acts of 17 Cha. I. that they afford an argument even on the other side of the question, viz, “that the Parliament of Ireland may repeal an Act made in Ireland in relation to the affairs of Ireland,” p. 75.
And again, with respect to the 6th and last voucher, under that head, (viz. the resolution of the Judge's in the Exchequer-Chamber, in the case of the Merchants of Waterford,) it by no means relates to the question in dispute; for that concerns only the exportation and importation of goods, and the Irish do not pretend to contest the Right of Great-Britain to the Dominion of the Seas; nor do they deny the Power of the British Parliament to regulate Commerce, as I have before remarked. Now, as it appears that not one of these Precedents is sufficient for the purpose proposed, and as we cannot doubt but that so learned a Lawyer as Judge Vaughan (as I have before observed of Judge Coke) would select the most applicable Precedents that could be found, the doctrine which he has built upon these insufficient Precedents must necessarily fall to the ground.
(75) For this inclusive Power, of GENERAL WORDS, Judge Blackstone refers us to Lord Coke's 12. Rep. 112. but I shall take no pains to refute any error in that last Collection of his Reports, “which are well known” (says the honourable Mr. Barrington, p. 161) “not to be of equal authority with those that precede.” And besides, I have already demonstrated, (I hope,) in my Comment on the Cases of Orurke, the lrishman, and Sir John Perrot, (as also by the clear and decisive Resolution of the worthy Judges, Wray and Dyer, and the Attorney General Gerrard, for restraining the GENERAL WORDS of four express Acts of Parliament, that all such general Words, in Statutes, must be duly restrained by a legal Construction, if the Judges, who enforce them, mean to avoid the Risk of exemplary punishment!
(76) The Irish do not pretend to deny a legal Dependence on the superior State of England, for they acknowledge that the Sovereignty of their Island is inseparably annexed to the Crown of England, of which, I believe, I have already quoted some examples: but, when Dependence is defined (in the manner Judge Blackstone represents it) as “an Obligation to conform to the Will or Law of the superior Person or State,” &c, it ceases to be a legal Dependence, according to the common Law and Constitution of England; though the learned Judge is certainly right enough, if he will be pleased to confine his Definition of Dependence to those Countries where the civil Law prevails, as in France or Prussia for instance; because, in such despotic Realms, the oppressed People seem, indeed, to acknowledge “an Obligation to conform to the Will or Law of the superior Person or State;” and the learned Commentator, if he meant to refer to the Laws of such enflaved People as these, must certainly be allowed to have delivered his meaning in the most expressive and judicious terms that he could possibly have chosen for such a purpose; for, in speaking of “the Will” of “that superior Person or State” to which he supposes “an Obligation to conform,” &c. he mentions it as a synonimous term to the word “Law,” viz. “Will or Law,” says he, that is, “an Obligation to conform to the Will or Law of that superior Person or State," &c. which is, indeed, a most lively description of the dangerous unlimited Power of the French, Prussian, or Imperial, Administrations of Government; for, wheresoever these two words, WILL and LAW, are confidered as synonimous, there must, of course, be any thing (be it ever so wicked or iniquitous) that the Superior pleases; that is, in short, “quod Principt placuit Legis habet Vigorem!” But I have already held up that detestable Maxim of the civil Law to the view of my Readers; and therefore I shall now only remark, in general, that neither the Laws of England nor the Laws of Ireland acknowledge any such Precept as the setting up the Will of a Superior for Law; or, (what is the same thing,) they do not acknowledge any such state of “Dependence” as an Obligation to conform to the “Will or Law” (those synonimous Terms) “of the superior Person or State,” &c.
Our Laws, indeed, acknowledge the King of Great-Britain for the time being as the “Superior” or Head of both Kingdoms; but the “Dependence,” which is thereby required of “the Inferior,” (whether the term, inferior, be applied to the inferior Kingdom as subordinate, or to Persons, viz. to each Individual as a Subject,) in either case, is a politic or legal “Dependence,” and not absolute and unlimited, — “Principatu namque nedum REGALI, fed et POLITICO, ipse suo populo dominatur.” The Laws leave no room to suppose that there is “an Obligation to conform to the WILL or LAW" (if the latter has no other foundation than the Will) “of that superior Person.” “Nam non potest Rex Angliae AD LIBITUM SUUM Leges mutare Regni sui. Principatu namque nedum regali,” &c. as above. (Fortescue de Laud. Leg, Angliae, c. 9. p. 25 b.) And, if even the King’s Power is not regal, but politic and limited, (which the same learned Writer, Chancellor Fortescue, has clearly proved in a distinct Tract, expressly on that subject, intided, “The Difference between absolute and limited Monarchy,") much less can the King's Subjects be said to exercise a “Sovereign’s legislative Power” (I. Com. p. 101) over any Nation or People whatsoever, that have no share in the said Power by a due Representation of their own collective body: for the sovereign Majesty of the People ought never to be exerted, except in their own necessary defence, or to maintain the natural Rights and equitable Privileges of Mankind, against Tyrants and Oppressors, for the good of Society in general, through that disinterested evangelical Principle, “Good-will towards men." But when, on the contrary, any particular Nation or People exerts that “Sovereign legislative Power” to deprive another different Nation of their natural Rights and Liberties, they no longer deserve to enjoy their own; and, indeed, divine Justice will inevitably overtake them sooner or later; for, as the crimes of individuals will surely be punished with personal condemnation, so national sins must feel the additional Weight of temporal national Retribuiton; which, I trust, I have demonstrated in a little Tract, intended sometime or other for Publication, intitled, “The Law of Retribution, and, in particular, of God’s temporal Vengeance on Slave-holders.”
(77) The following extract, from Sir Wm. Petty’s Political Survey of Ireland, will corroborate this just Remark of Sir William Blackflone.— “The British Protestants and Church have three-fourths of all the Lands, five-sixths of all the housing, nine-tenths of all the housing in walled towns and places of strength, two-thirds of the foreign trade,” &c. p. 27.
(78) Judge Blackstone himself has called it, in the the very same page, “the Birth-Right of every Subject.”
(79) This Benevolence, or due Consideration for the natural Rights of all mankind is properly called Jus Gentium, the Law of Nations;(aa) which universal Law (as like wise all the other Heads above-mentioned) is necessarily included in what is commonly called natural Religion, consisting of the primary or eternal Laws of God; and whatsoever is contrary to any of these is “MALUM IN SE,” which no authority on earth can make lawful; (see note in p. 185 & 186.) and men of all ranks, and in all places, that have Common Sense, are naturally qualified to distinguish whether Laws are deficient in any of these respects, or are contrary to Reason; for the Law of Reason is an universal Law — “Scribiturque haec Lex in corde cujuslibet Hominis, docens eum quid agendum, et quid sugiendum," (for which the learned Author quotes the Epistle to the Romans, chap. 2, and then proceeds) “et quod Lex Rationis in corde scribitur, idea deleri non potest, nec etiam recipit mutationem ex loco nec tempore, sed ubique et inter omnes Homines servari debet. Nam Jura naturalia immutabilia sunt, et ratio immutationis est quod recipiunt Naturam rei pro fundamento, quae semper eadem est et ubique,” Doct. et Stud. cap. 2. Any Acts of Parliament, therefore, which are contrary either to Nature, to Justice, to Morality, or to Benevolence, &c. are contrary to Reason, (that Ray of the divine Nature, and supreme Law,) and consequently are null and void, being mere Corruptions, (corruptelae,) and not Laws; for “contra eam” (Rationem) “non est praescriptio vel appositum statutum sive consuetudo; et, si aliqua fiat, NON SUNT STATUTA, sive Consuetudines, fed CORRUPTELAE,” &c. Doct. et Stud. p. 5. b.
(aa) The Law of Nations seems to be almost banished at this time from Europe. The late felonious and arbitrary Division of Poland between three of the greatest Powers in Europe: The late iniquitous attempts against the antient Republic of Venise and the Swife Cantons, and the late unjust Claims upon the free Cities of Dantzick, Hamburgh, &c. The Robberies and horrid Murders which, for these ten years past, have been committed by the French on the poor wretched Inhabitants of the little Island of Corsica, upon pretence of an unlawful Cession of Sovereignty from the Genoese; and the like abominable Iniquity, upon the like false pretence, lately carried on, even by the English themselves, against the poor helpless Charibbs at St. Vincent's: — are melancholy Proofs, either that the Europeans in general are most profoundly ignorant of the Law of Nations, or that they are fallen into a state of the most abandoned Wickedness and Profligacy.
(80) “Secundum fundamentum legis Angliae est Lex Divina," &c. And if any Act of Parliament is in any degree contrary to the divine Law, it has no force in the Laws of England. Suppose, for instance, an Act of Parliament should be made, to prohibit or annul the marriages of any particular rank or order of men whatsoever; the same must necessarily be esteemed null and void of itself; because the Principle, attempted to be established by such an imaginary Act, is so directly contrary to the Laws of God, that we may safely rank it with the “Doctrines of Devils;” (see notes on pages 133 &134.) which, indeed, every Act of Parliament ought to be esteemed that is in any degree contrary to the holy Scriptures, (the written Laws of God,) or contrary to Reason, (the eternal Law of God) — “Etiam si aliquod Statutum esset editum centra eos, nullius vigoris in legibus Anglia censeri debet,” &c. Doct. et Stud. c. 6.
(81) Of this I have already given sufficient examples in pages 178 to 208.
(82) “Confra veritatem nihil possumus.” And again, “Contra veritatem lex nunquam aliquid permittit.” 2 Inst. 252. Plowden has reported a variety of cases wherein Acts of Parliament were esteemed void in Law, through the want of truth in the recitals: see pages 398 to 400. — “Et issint Parliament puit misprender chose, et Statutes que MISRECITE CHOSES, et font referre a eux, serront void, et null ferra conclude per eux. Issint en notre principal case, le statut que recite le plaintiff suit attaint, et confirme ceo, ou en fail il nesuit attaint, SERRA VOIDE."
(83) — “Quia ilia potestas” (potestas Juris) “folius Dei est; potestas autem injuriae diaboli, et non Dei; et cujus horum opera fecerit rex, ejus minister erit cujus opera fecerit. Igitur, dum facit justitiam, vicarius est Regis aeterni; minister autem diaboli, dum declinet ad injuriam,” &c. Bracton, lib. 3, c. 9, p 107, b.
(84) “Know ye not that, to whom ye yield yourselves servants to obey, his servants ye are, to whom ye obey? whether of sin unto death, or of obedience unto righteousness?” &c. Rom. vi. 16.
This work was published before January 1, 1929, and is in the public domain worldwide because the author died at least 100 years ago.
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