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. Sharp, Granville, 1735-1813. 283 600dpi bitonal TIFF page images and SGML/XML encoded text University of Michigan Library Ann Arbor, Michigan 2011 June 004801476 T32192 CW106380203 K035367.000 CW3306380203 ECSS 1198200100

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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. Sharp, Granville, 1735-1813. [4],xl,244p. ; 8⁰. printed for B. White, London : 1774. With a half-title. A reissue of the sheets of the 32p. version of the same year, with additional material. Reproduction of original from the British Library. Adams, 74-72b English Short Title Catalog, ESTCT32192. Electronic data. Farmington Hills, Mich. : Thomson Gale, 2003. Page image (PNG). Digitized image of the microfilm version produced in Woodbridge, CT by Research Publications, 1982-2002 (later known as Primary Source Microfilm, an imprint of the Gale Group).

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A DECLARATION OF THE People's Natural Right to a Share in the Legiſlature, &c.

A DECLARATION OF THE PEOPLE'S NATURAL RIGHT TO A SHARE IN THE LEGISLATURE; Which is the FUNDAMENTAL PRINCIPLE OF THE BRITISH CONSTITUTION OF STATE.

By GRANVILLE SHARP.

Qui non libere veritatem pronunciat, proditor eſt veritatis. 4 Inſt. Epil.

LONDON: Printed for B. WHITE, at HORACE'S-HEAD, in FLEET-STREET.

M.DCC.LXXIV.

PREFACE.

THE following Declaration of the People's natural Right to a Share in the Legiſlature is founded on Principles, which are certainly unqueſtionable, and cannot eaſily be controverted; but I was not aware, I acknowledge,

I freely acknowledge my deficiency in hiſtorical as well as moſt other branches of Learning, which require much reading and leiſure to be obtained; but though this affords an argument againſt my own perſonal credit and abilities, in general, as a writer, yet it does not at all affect any particular point, which, in my ſeveral tracts, I have laboured to maintain; for, upon theſe, a candid Reader will determine according to the evidence produced, and not by the general character or demerit of the Author in other reſpects.

when I ſent the ſame to the Preſs, that there had ever been any Controverſy before the 6th of King George I. concerning the Freedom of our fellow-ſubjects in Ireland, or that any Engliſhman, acquainted with the principles of our excellent Conſtitution of State, had ever, before that time, preſumed to advance any doctrine which might tend to deprive our Iriſh Brethren of their natural Freedom, and of the ineſtimable benefits of that happy legal Conſtitution, which Britiſh Subjects in general are commonly ſuppoſed to inherit by Birth-right!

If I had not eſteemed this point incontrovertible, when I wrote the ſaid Declaration, I ſhould not have quoted the Union between Great Britain and Ireland as an example of the true conſtitutional mode of connecting Britiſh Dominions that are otherwiſe ſeparated by nature. But having done this, and having alſo given ſeveral copies of the Declaration to my friends which cannot now be recalled, I have thereby brought upon myſelf the neceſſity of maintaining the propriety of the ſaid example, which might as eaſily have been avoided, had I been aware of any ſuch controverſy; becauſe the general principles, on which my arguments are founded, would have been amply ſufficient (I apprehend) to prove the truth of my Declaration, even though Examples and Cuſtom had been againſt it; for the Common Law of England teaches us, that examples and precedents are not to be followed if they are unreaſonable, or inconſiſtent with legal and conſtitutional Principles

This is clearly proved by a variety of unqueſtionable maxims; Judicandum eſt Legibus, non Exemplis. Malus uſus abolendus eſt. In conſuetudinibus non diuturnitas temporis, ſod ſoliditas rationis, conſideranda eſt. Multitudo errantium non parit errori patrocinium.

; though, on the other hand, they are to be eſteemed of very great weight and authority in Law, when there are no juſt exceptions againſt them — et quia conſuetudines illae nec contra legem divinam nec contra rationem in aliquo exiſtunt, et pro bono communi totius Regni ex earum diurnitate cenſentur, fore neceſſariae, vim Legis retinent, &c. Doct. et Stud. c. 7. . And of this latter kind is the Example which I have quoted to illuſtrate my Declaration: for, though many great and reſpectable Writers have made exceptions to the conſtitutional Freedom of Ireland, which I had ſuppoſed to be unqueſtionable, yet, after the moſt careful examination of their opinions, and the reaſons given for the ſame, (in which the proofs ought to conſiſt,) I am now fully convinced that there are no juſt exceptions againſt that example; and, conſequently, I am bound in juſtice, to my fellow-ſubjects in Ireland not to give it up; becauſe the "neceſſity" (beforementioned) of maintaining the propriety of the example, cited in my Declaration, ariſes not from any obſtinate partiality to my own aſſertion, (which I confeſs was, at firſt, too haſtily and unadviſedly made,) but from a firm perſuaſion, after a moſt cautious enquiry into the real ſtate of the controverſy, that the advocates for the Liberties of Ireland have Truth and Reaſon on their ſide, which, (I hope) the 2d Part, now added to my Declaration, will ſufficiently teſtify.

It is neceſſary alſo for me to guard againſt another objection which might perhaps hereafter have been ſtarted againſt the following Declaration.

I have quoted therein a maxim of the Engliſh Conſtitution, as a principle of natural equity, which had previouſly been denied that rank by one of the moſt eminent civilians of his time; and therefore, to avoid the influence of ſo great an authority againſt my Argument, I think it prudent, in this Preface, to examine the grounds of his objections, that my Readers may have ſufficient evidence before them to diſtinguiſh where the truth lies; for it is certainly neceſſary for me to eſtabliſh the firſt principles on which I have proceeded, before I can expect to have any attention paid to the Arguments which I have built upon them.

The maxim which I wiſh to maintain is as follows, viz. that Law, to bind all, muſt be aſſented to by all

Principia Leg. et Aequit. p. 56. to which is added, by way of illuſtration, Canons therefore bind not the Laity.

. This maxim I have quoted in the following Declaration as a principle of natural Equity; though, it ſeems, the learned Civilian, Baron Puffendorf, has expreſſly refuſed to rank it with the Laws of Nature: He, or (rather I ſhould ſay) his Tranſlator, calls

The Edition which I have followed is only an Engliſh tranſlation printed at Oxford in 1710.

it only a notion.

"We cannot here but obſerve," (ſays he,) that the Notion, maintained by ſome authors, That the Conſent of the People is requiſite to make Laws oblige the Subject in Conſcience, is neither true in the Laws of Nature, nor in the civil Laws of monarchical or of ariſtocratical Rulers; nor indeed at all, unleſs it be underſtood of implicit conſent; as a man, by agreeing to the Sovereignty of another, is at the ſame time, ſuppoſed to have agreed to all the future Acts of that SovereigntyLaw of Nature and Nations, Book 1. c. 6. p. 55.. (He has nevertheleſs thought proper to add an obſervation which makes ſtrongly againſt his own argument.) "Though it would really be very uſeful," (ſays he,) and contribute much to engaging the Subjects in a voluntary Obedience, if the Laws could be made with their Conſent and Approbation; eſpecially ſuch as are to paſs into their Lives and Manners.

Now it would be impoſſible (I apprehend) to find ſo juſt a reaſon in favour of the former part of the learned Baron's aſſertion, as he himſelf has here given directly againſt it; and yet he is frequently harping upon the ſame harſh ſtring of abſolute implicit obedience; which inconſiſtency cannot eaſily be accounted for, unleſs it be attributed to the prejudice of his education as a ſtudent in the Impeperial or Civil Law. For though the Civil Law contains many excellent maxims highly worthy of our eſteem, moſt of which have been adopted by our ancient Engliſh writers of the Common Law of this Kingdom What uſe our anceſtors have made of the civil Law will readily appear to any one, that will take the trouble to compare the ſeveral works, which compoſe that voluminous body, with ſome of the moſt ancient Engliſh Lawyers, as Glanvil, Bracton, and others; who have adhered very cloſely to the rules and method of Juſtinian; have tranſcribed his Laws in their own proper language, and ſometimes entire titles, as familiarly as if they were the original Laws of England. Dr. Bever's Diſcourſe on the Study of Juris-prudence and the Civil Law, p. 17. ; yet it includes ſome heterogeneous poſitions (that have been forced upon it by the overbearing influence and corrupt practices of unlimited Imperial Courts) which are highly unreaſonable and contradictory to the general equity of its other principles. A poſition of this kind, too implicitly received as Law, ſeems to be the ground-work of the learned Baron's difficulty: I mean that unreaſonable and dangerous poſition of the Civil Law, which attributes to the Prince's Will and Pleaſure the Force of Law Quod Principi placuit (juxta Leges Civiles) Legis habet vigorem. Forteſcue de Laud. Leg. Ang. c. 35. p. 83.

In this ſame chapter the learned Chancellor Forteſcue recites many dreadful effects of this abominable principle in the Government and Police of France. viz. the pernicious and dangerous Policy of maintaining a ſtanding army; for which the people were compelled to provide quarters and proviſions, in all the great towns and villages.

Alſo the abominable oppreſſion of the Salt Tax, whereby the poor were compelled to purchaſe of the King a certain quantity of Salt (whether they choſe to have it or not) at an exceſſive price; by which, together with the aſſeſſments to pay the troops, and various other tallage rateable at the King's pleaſure, the common people were reduced to extreme penury, and want of every comfort in life. And, with reſpect to perſons of highter rank, if any Nobleman or Gentleman was accuſed of a crime, even by his enemies, he was liable to be dragged to a private examination, by the intermediation of meſſengers in the King's chamber, or elſewhere, in a private place, without ſeeing his accuſers (himſelf alone being ſeen); and when the King (or perhaps his Miniſter) has been pleaſed to judge him guilty, the poor paſſive Subject is popped into a ſack, and in the night time caſt into the river by the Marſhal's ſervants. Howſoever incredible ſuch abominable injuſtice may appear to Engliſhmen, yet the worthy Chancellor, who wrote this account for the inſtruction of Edward Prince of Wales (the ſon of King Henry VI.) when in France, appeals to the young Prince's own knowledge of the notoriety of ſuch facts: "You have heard," (ſays he) that more men (by much) have died in this manner than by the ordinary courſe of juſtice; yet nevertheleſs (ſays he ironically) whatſoever hath pleaſed the King (according to the Civil Law) has the force of Law. And while you have been in France, and in the neighbourhood of that Kingdom, (continues the Chancellor to the young Prince,) you have heard of other enormities like to theſe, and ſome even worſe than theſe —deteſtably and damnably perpetrated, no otherwiſe than under the colour (or pretence) of that Law, viz. Quod Principi placuit (juxta Leges Civiles) legis habet vigorem. Etiam et alia enormia, (ſays he) hiis ſimilia, acquaedam hiis deteriora, dum in Francia et prope regnum illud converſatus es, audiſti non alio, quam legis illius colore DETESTABILITUR DAMNABILITER QUE PERPETRATA, quae hic inſerere, noſtrum nimium dialogum protelaret, &c. Whether or not this particular mode of diſpatching the French King's Subjects is yet in uſe, I know not; but of this we are well aſſured, that private executions of perſons unknown are ſtill practiſed there, which in effect are equally dangerous, and cannot be conſidered in any other light than that of ſo many wilful Murders, for which the Kings of France, and all thoſe men whom they have intruſted with the adminiſtration of Juſtice, are moſt certainly accountable, and muſt one day anſwer in their own private perſons as individuals, beſides the enormous guilt which lies heavy upon that whole people as a nation, for paſſively permitting ſuch notorious and crying iniquity to be practiſed among them under the borrowed name of Law: And it is not only the diſpatching of men (to put them out of the way of oppoſition to Government) that is intended by theſe midnight executions, but alſo, in ſome caſes, to ſatisfy a baſe malicious revenge by torturing the helpleſs victim with the cruel death of breaking on the wheel; for, as both the name and crime of the ſufferer is concealed, (or perhaps a wrong name given out to prevent pity,) it cannot be ſaid that ſuch cruelty is uſed by way of example to deter bad men from commiting treaſon, or other particular crimes; ſo that ſuch private executions can be attributed to nothing but a DIABOLICAL DEPRAVITY in the minds of thoſe who order them.

It alſo appears that one uſe of a ſtanding Army, in that unhappy Kingdom, is to guard the avenues of ſtreets to prevent the people from diſcovering the actors as well as ſufferers at ſuch horrid maſked tragedies as I have mentioned; and therefore I cannot help remarking the extreme abſurdity of that (otherwiſe) ſenſible and ſhrewd people in boaſting of their national military Honour, when even large bodies of their beſt-diſciplined troops, who are Frenchmen alſo by birth, and have the means in their own hands to render juſtice and reſtore liberty to their much-injured countrymen, can yet tamely yield themſelves ſo far to the abſolute Will of any man or men on earth, as to become ſilent accomplices (like the deteſtable Turkiſh Mutes of old) to the horrid crime of wilful Murder, (for ſuch are the ſecret executions of France,) and profeſſed Tools for perpetrating the moſt abandoned wickedneſs! To ſuch a diſgraceful and ſlaviſh pitch of paſſive obedience is that once-ſpirited nation now reduced, that they ſeem to give up all pretenſions to that fundamental Right of human Nature, which alone diſtinguiſhes men from brutes! I mean the indiſpenſible Right of judging for themſelves, and of yielding obedience to the impulſe of Conſcience, according to that natural knowledge of good and evil which is implanted in all men, (French ſoldiers as well as others;) and of which they muſt one day render a ſtrict account in a ſeparate diſbanded ſtate, as individuals, (which I have before remarked,) ſtript of their arms and regimentals!

Shall we, then, adopt the Laws of France? quod principi placuit? &c. It is not impoſſible that ſuch a meaſure may ſometime or other be propoſed by an inconſiderate Miniſter, and that a Parliament (through the unequal Repreſentation of the People, the want of frequent elections, and other defects in the conſtitution, &c.) may hereafter be led to yield their conſent to it; but, even if ever that ſhould be the caſe, I ſhall ſtill entertain hopes, from the general diſpoſition of our Britiſh Troops, (notwithſtanding the alarming effects of ſtanding Armies in all other Nations,) that they will never become ſo deteſtably baſe and degenerate as to permit their country to groan under any ſuch iniquitous Oppreſſions as are practiſed in France! Nevertheleſs, ſhould they alſo become ſuch ſlaviſh Tools of Deſpotiſm, as to aſſiſt in enforcing any ſuch unconſtitutional meaſures, let them know, for a certainty, that, as ſoon as the national ſpirit of Freedom (of which they at preſent participate) is, by their means, unhappily ſuppreſſed, even they themſelves muſt neceſſarily degenerate with their countrymen, and will be no more able to ſtand before their enemies, than the other wretched troops whom they have ſo often driven before them!

. I do not find, indeed, that he has literally cited the corrupt maxims, but he has manifeſtly laid down the ſame principle (though in different words) towards the beginning of the ſame chapter, where he is defining the difference between Law and ſome other things, which ſeem to bear relation to it; as Counſel, which requires reaſons to produce an obligation, &c.

"But Law," (ſays he,) though it ought not to want its reaſons, yet theſe reaſons are not the cauſe why obedience is paid to it, but the power of the Exactor; who, when he has ſignified his pleaſure, lays an obligation on the Subjects to act in conformity to his decree, though perhaps they do not ſo well apprehend the reaſons of the injunction, &c. and, after citing a ſimilar paſſage from Mr. Hobbs, he adds, For no man can ſay, ſic volo, ſic jubeo; ſo I will, and ſo I command; unleſs,

— Stet pro Ratione voluntas. His Will is his Reaſon.

"We obey Laws, therefore," (ſays he,) not principally upon account of the matter of them, but upon account of the Legiſlator's Will Book 1. chap. 6. §. 1..

Thus the learned Civilian ſeems to conſider the Will and Pleaſure of a Sovereign as the life and ſpirit of Laws; which notion is highly unreaſonable in every caſe but one, viz. when we are ſpeaking of the Laws of that Sovereign alone, whoſe Will is the fountain of Reaſon, and whoſe Pleaſure (by our own natural Reaſon we are convinced) is infinite goodneſs, juſtice, and mercy, towards all thoſe to whom he has ſignified his commands; becauſe we cannot ſeparate the idea of infallible Reaſon, Wiſdom, and eternal Juſtice, from any command of divine authority.

And yet this application of the Baron's doctrine, even to the ſupreme Law, is not conformable throughout to what I underſtand in this place of the Baron's idea of Law; for he aſſigns no other cauſe why obedience is paid to it, but the power of the Exactor; whereas God's Laws have many other apparent cauſes of obligation, of which I have alteady mentioned the due ſenſe we naturally entertain of the infinite Wiſdom and Truth (as well as the Power) of the Divine Author, who is ſo far from being an Exactor of Laws, that the revelation of his will for the good government of mankind has generally been addreſſed to the Senſes and Reaſon of Men, that their Covenant with God might be founded on free Conſent, the higheſt and moſt obligatory Cauſe of Obedience.

Now, as the Laws of God are thus tendered to us under the equitable form of a reciprocal Covenant, thereby binding even himſelf (the ſupreme Lord and Creator of all things) to us, his poor mortal ſubjects, under conditional Promiſes which cannot fail on his part! how much more ought all mere worldly Governors to be reſtrained and limited by equitable Covenants of mutual obligation between them and their Subjects, ſince their equality in nature gives the latter an undoubted Right to inſiſt on this, the only ſafe mode of worldly Government?

The conſideration of this point leads me to one of the principal Grounds of Baron Puffendorf's Miſtake, beforementioned.

He does not ſeem to have been aware, that, in all ſocieties of men governed by Laws, ſome ſort of general Covenant muſt be underſtood to ſubſiſt between the ſeveral Sovereigns and their Subjects reſpectively: and, though ſuch Covenants are not always expreſſed, yet, moſt certainly, they are always implied; becauſe we muſt neceſſarily preſume, that the Good of the People is the original intention and principal end of all legal human Governments, ſince all Men are naturally equals, and a Man who ſubmits himſelf to the Sovereignty or Government of another, that he may enjoy the benefit and protection of ſociety, does not, on that account, ceaſe to be a Man; neither can the temporal Sovereign himſelf be releaſed from the natural Tyes of that Relation: for, whenever he forgets that he himſelf is a Man, (of the ſame fallible underſtanding and natural infirmities with his Subjects, who are his equals both on their entrance and at their exeunt from the Stage of Life,) he immediately loſes the beſt Rule for his Conduct as a Prince, and neceſſarily degenerates into brutality; ſo that, in ſuch caſes, to ſuppoſe that THE WILL of the Prince is to be allowed the force of Law is the higheſt abſurdity! Nay, even the Baron himſelf has elſewhere declared, that the word MAN, is thought to carry ſomewhat of Dignity in its ſound; and we commonly (ſays he) make uſe of this as the laſt and the moſt prevailing argument againſt a rude inſulter, I am not a Beaſt, a Dog, but I am A MAN as well as yourſelf. Since then human nature agrees equally to all perſons, and ſince no one can live a ſociable life with another, who does not own and reſpect him as a Man; it follows, as a command of the Law of Nature, that EVERY MAN eſteem and treat ANOTHER as one who is naturally HIS EQUAL, or who is A MAN as well as he. (Book 3. c. 2. p. 178.) It would therefore be unreaſonable to conceive, that any ſociety of MEN ſhould voluntarily ſubmit themſelves to a temporal Sovereign, without ſuppoſing, at the ſame time, ſome reciprocal obligation or duty to ſubſiſt between them; which is nothing elſe but the implication of a mutual Covenant: and, indeed, the formalities of every Coronation ſufficiently indicate and warrant ſuch an implication; and the infringements made by Monarchs on ſuch implied Covenants have, in all ages, been occaſionally puniſhed by the expulſion and deſtruction of the Tyrants themſelves, of which moſt nations have, at ſome time or other, afforded an example.

Nevertheleſs, the learned Baron ſeems to have neglected theſe neceſſary conſiderations; for he aſſerts, that the diſtinction between a Compact or Covenant, and a Law, is obvious. For a Compact (ſays he) is a Promiſe, but a Law is a Command. In Compacts the form of ſpeaking is I will do ſo and ſo; but in Law the form runs, do thou ſo, after an imperative manner. Book 1. c. 6. §. 2. p. 47.

He had before been ſpeaking of democratical Governments, and had remarked, not only that the ancients frequently apply to Laws the name of common Agreements, but alſo, that "the Laws" (among the Grecians) were made upon the propoſal of the Magiſtrate, with the Knowledge, and by the Command of the People, and ſo (as it were) "in the way of bargain or ſtipulation," (ſays he,) they gave them the name of Covenants and Agreements beforementioned: and yet he will not allow (notwithſtanding ſuch authority) that they are properly ſtiled "Covenants," having puzzled himſelf with the difference between a national Covenant and a Covenant of individuals; for, in this laſt caſe, (ſays he,) a perſon that diſſents is not bound, and the party cannot proceed without him; whereas, in the former caſe, even the diſſenting Party is tied and obliged by the plurality of votes. Now the learned Baron has not been aware that this very reaſon, which he himſelf has aſſigned, confirms the propriety of that ancient cuſtom which he condemns, (viz. the applying the name of Covenants and Agreements to Laws,) for, he allows, that the diſſenting Party is tied and obliged by the plurality of votes, and therefore, even a whole nation, in that caſe, may be ſaid to act as an individual; becauſe, that to which the greater number give conſent (as he himſelf remarks in the preceding paragraph) is taken for the Will and Decree of all; ſo that, by this means, a whole Nation is as capable of making a Covenant or Compact as an Individual; and I will only add, to what the Baron has allowed about the binding of thoſe who diſſent, that they are bound only ſo far as the impoſed Obligation is conſiſtent with their ſuperior Covenant and duty to God, which is always to be implied: for even the SOVEREIGN of the World, THE KING OF KINGS, who alone can be ſaid to have an abſolute Right to govern his creature man without a free Covenant; (if he had been pleaſed ſo to do,) has nevertheleſs condeſcended to include all his poſitive Laws in two expreſs legal Covenants, the old and the new, both of which have been from time to time confirmed and fulfilled, and ſtill reſpectively ſubſiſt to this day in all points, wherein the former is not ſuperſeded, and fulfilled by the latter. It therefore ill becomes this learned Civilian to ſeparate the idea of a Compact or Covenant from Law; and more eſpecially when he endeavours thereby to eſtabliſh the Power of the Exactor, the capricious Will of mere temporal fallible Sovereigns, which he ſuppoſes to be Law, independent of all Compacts or Covenants expreſſed or implied!

Thus I hope I have traced, to the very foundation, the Baron's error in denying the principle or maxim beforementioned, (concerning the neceſſity of popular aſſent in Legiſlation,) for, if he had not attempted to ſeparate the idea of a Covennant from Law, he could not have overlooked the abſolute illegality of thoſe pretended Laws which are ordained only by the Will and Power of the Exactor! becauſe the meaneſt profeſſor of the Engliſh common Law would have told him, that every ſubmiſſion, promiſe, or agreement, that is extorted by fear and compulſion, is (according to the Law of Nature) totally null and void in itſelf; and he himſelf is ſufficiently ſenſible of this in another place Thoſe promiſes then, or pacts, we take to be invalid, which a man is compelled to engage in, by the unjuſt force of the party to whom they are made; for ſince he, who extorts any thing from another by uſing unjuſt terrours, is by the Law of Nature bound to reſtore it, and muſt conſequently make good what the other perſon loſes by ſuch forced bargain, the neceſſity of Reparation, in the party who offered the violence, takes off ALL OBLIGATION to payment in the party who ſuffered it, &c. Book 3. c. 6. § 11. p. 225. . And, even if an oath ſhould be obtained to confirm the unjuſt "Power of the Exactor," it will not increaſe his Right; for the Baron's own doctrine (again in another part of his book) affords a ſufficient anſwer to annul every pretence of Obligation on account of oaths extorted by unjuſt Fear But what are we to think of oaths extorted by unjuſt Fear? Surely the Perſon who, by means of this Fear, procured a promiſe upon oath, is no leſs obliged to releaſe the promiſe, thus violently obtained, than if no oath had been added to confirm it. Therefore there appears no reaſon, why Compenſation ſhould not be admitted in this caſe, in oppoſition to the Claim of the injurious Party; according to the rules laid down by us (ſays he) when we treated of the general ſubject of Fear. Book 4. c. 2. § 8. p. 272. .

Thus the maxim concerning the neceſſity of Aſſent, for which I contend, is ſufficiently proved to be a Law of Nature even by the learned Baron's own arguments, and I deſire no better.

In conſequence of the Baron's general miſconception

I have ſpent the more time in warning my Readers againſt the Errors of this celebrated Civilian, becauſe the ſtudying of his Works (I am informed) is at this time conſidered as a material part of Education in our Univerſities; ſo that the riſing Generation of the very beſt Families in this Kingdom are liable to imbibe (as it were with the Milk of Inſtruction) theſe poiſonous Doctrines, which thereby become fixed and engrafted in their tender minds as a foundation for their future political Principles!

Thus a moſt dangerous ſource of unconſtitutional notions has been opened, and ſeems already to have flowed throughout the Kingdom; ſo that we need not wonder at the modern partiality for increaſing the number as well as the powers of Courts of Admiralty, and other ſeminaries of the Civil Law, though the very exiſtence of Britiſh Liberty depends on duly reſtraining and limiting the Civil Law Courts within thoſe bounds of juriſdiction which have been allowed them by the ancient Conſtitution of this Kingdom: And therefore I hope my Readers will excuſe my having exceeded the uſual form of publications, in making ſo long a Preface to ſo ſhort a Work, ſince it was abſolutely neceſſary to guard againſt theſe dangerous and inveterate errors of the Civil Law, before I could ſafely proceed to my Declaration in favour of popular Aſſent.

, concerning the neceſſity of agreement to make Laws valid, he has aſſerted alſo, that neither the divine poſitive Laws, nor the Laws of Nature, had their riſe from the agreement of men, &c. Book 1. c. 6. §. 2. p. 47.

Now his obſervation is certainly true as far as it relates to the riſe or origin of ſuch Laws; for the Laws, being divine, muſt neceſſarily have "had their riſe" from God; but yet this does not ſet aſide "the agreement of men," by which they have been ratified and confirmed in all ages. The Baron ſeems to have overlooked the information we have received from Scripture, that men inherit a divine attribute from their parents, I mean that knowledge of good and evil which they took upon themſelves contrary to the expreſs command of God, and thereby unhappily entailed Sin and Death on all their poſterity; for that divine knowledge neceſſarily engages and includes our agreement or aſſent to the "the Laws of Nature," whether we obey them or not, and thereby renders us anſwerable for our imperfect conduct in this world, and conſequently guilty before God! And from hence ariſes the neceſſity of a redemption to relieve mankind from that unhappy effect of the Original Sin; for, as the ſtrength of Sin is the Law, The ſting of Death is Sin; and the ſtrength of Sin is the Law. 1 Cor. xv. 56. ſo the guilt of every criminal action is with juſtice imputed to us, becauſe we have wilfully offended againſt this natural light or Law in our Hearts, by which we ought to have known how to refuſe the EVIL and chooſe the GOOD.

This knowledge of Good and Evil was diſcovered, even by the Gentiles, to be a divine attribute

Cicero calls this natural knowledge of Good and Evil, Law. "Lex" (ſays he in his firſt Book De Legibus) eſt ratio ſumma, inſita in natura, quae juhet ea quae facienda ſunt, prohibetque contraria; eadem catio cum eſt in hominis mente confirmata et confecta Lex eſt. And in his third Book De Officiis, where he is ſpeaking again of natural Reaſon, he calls it a Divine Law.I pſa naturae ratio, quae eſt Lex divina. et Humana:—And elſewhere he more particularly declares it to be a Divine Attribute.Recta, 〈◊〉 numine Deorum tracta ratio. And he mentions this attribute again in his ſecond Book De Natura Deorum, where he ſpeaks of prudence, or the choice of Good and rejection of Evil, as a univerſal Law, common to God and man. Sequitur ut eadem ſit in his (Diis) quae in genere humano, ratio, eadem veritas utrobique ſit, eademque Lex; quae eſt recti praeceptio pravique depulſio. Ex quo intelligitur, prudentiam quoque, et mentem a Diis ad homines, perveniſſe, &c.

, though they were unacquainted, probably, with the occaſion of its being engrafted in human nature. It muſt therefore appear, that the agreement or aſſent of mankind to the moral and eternal Laws of God (which the Baron and other Civilians commonly call "the Laws of Nature") may very fairly be preſumed and admitted as a natural effect of the human underſtanding, whenever any of the ſaid Laws are mentioned; for, all perſons, who have any reflection, muſt be ſenſible that we ſtand ſelf-condemned by Conſcience (which is only another name for the knowledge of Good and Evil ) whenever we offend againſt the moral Laws of God, by which our Agreement and Aſſent to the juſtice of them are ſufficiently implied and acknowledged

I have traced this ſubject more at large in a ſeparate Tract on "the Law of Nature and Principles of Action in MAN," intended alſo for the Preſs.

: And, with reſpect to what the Baron has likewiſe inſinuated concerning the want of human agreement to the "divine poſitive Laws," the direct contrary thereto is clearly demonſtrated (as I have before hinted) by the remarkable examples of two inconteſtible legal Covenants between God and Man, the Old and New Teſtaments, thoſe two original written Charters or Grants of PERFECT LIBERTY; the one containing the Promiſes, and the other, the Accompliſhment of our glorious Freedom; which we are bound to maintain and defend to the laſt moment of our lives!

The mention that has already been made of theſe two unqueſtionable monuments of the free State and Condition, to which the Almighty has been pleaſed to invite his creature Man, might perhaps be ſufficient for my preſent purpoſe, without deſcending to farther particulars; but yet, as I received extraordinary ſatisfaction myſelf in tracing minutely the manner in which the ſaid Covenants have been tendered and ratified, I am inclined to ſuppoſe that many of my Readers will reap the ſame ſatisfaction by peruſing ſome examples of it, becauſe they demonſtrate the real dignity and natural Rights of MAN, far beyond any thing that I could poſſibly have conceived before I made the ſaid Examination with this particular view to the Freedom of Man; and as I have too much reaſon to apprehend, that many of my countrymen have overlooked or neglected theſe ſtriking Inſtances, which relate to the preſent ſubject, the Right of Aſſent; I propoſe to add (ſometime hereafter, as ſoon as I can poſſibly find leiſure to reviſe it for the preſs) a third Part alſo to this Declaration of the People's natural Right to a Share in the Legiſlature; which 3d Part (being founded on ſome remarkable examples in Scripture, concerning the gracious and moſt liberal mode whereby the revealed Laws, even of God himſelf, have been tendered (from time to time) to the conſideration and acceptance of mankind) proves by comparative demonſtration, that the MAXIMS OF THE FOREIGN CIVILIANS, whereby they ſet up the mere WILL of fallible earthly Princes as LAW, (viz. Quod Principi placuit habet vigorem Legis.—Stet pro ratione voluntas. &c. ſubſtituting WILL for REASON,) are IMPIOUS AND UNJUST; ſince even the ALMIGHTY SOVEREIGN OF THE UNIVERSE, to whoſe WILL alone ſuch deference is juſtly due, hath not ſo dealt with his creature Man, enforcing his Will for his Reaſon; but, on the contrary, hath mercifully condeſcended to convince us (his frail mortal ſubjects) that REASON is his WILL, and that he hath limited (if I may be allowed ſuch an expreſſion) even his own infinite Power by the eternal rules of Juſtice and Righteouſneſs, which, (our own natural Reaſon teaches us,) can never fail! and therefore, as true Freedom conſiſts in the certainty of known Laws, ſo the moſt perfect Liberty muſt neceſſarily ſubſiſt under the Government of the Almighty; who has appealed by his prophets from time to time, in the moſt affecting manner, to the reaſon and ſenſes of mankind, that his Laws might be confirmed by a voluntary popular Aſſent, the only true foundation of all valid Compacts; and that the ſaid Laws have accordingly been ſolemnly ratified, and voluntarily accepted by the people, in two mutual Compacts, or Covenants, (commonly called the Old and New Teſtaments,) whereby not only the People are bound on their part, but even the ETERNAL KING HIMSELF is conditionally bound alſo on his part to the performance of the moſt glorious Promiſes!

The promiſes of God are made to all mankind (without exception) who receive and keep his Covenant; ſo that every true believer, be his rank in life ever ſo mean, is undoubtedly capable of becoming an adopted Son of God

— "That we might receive the adoption of ſons," (ſaid the Apoſtle to the Galatians;) and, becauſe ye are ſons, God hath ſent forth the Spirit of his Son into your hearts, crying Abba, Father! Gal. iv. 5.6.

;—"A temple of God," by the inward dwelling of his Holy Spirit

Know ye not that ye are the temple of God, and that the Spirit of God dwelleth in you? If any man defile the temple of God, him ſhall God deſtroy: for the Temple of God is holy, which temple ye are. 1 Cor. iii. 16.17. See alſo 2 Cor. vi. 16.

: An heir of ſalvation

That the Gentiles ſhould be fellow-heirs, and of the ſame body, and partakers of his promiſe in Chriſt by the Goſpel. Eph. iii. 6.

;
—"a joint heir with Chriſt

If children, then heirs; heirs of God; and JOINT HEIRS WITH CHRIST. Romans viii. 17.

;" and all ſuch ſhall COME WITH HIM TO JUDGE THE WORLD

— For "the ſaints ſhall judge the world." 1 Cor. vi. 2 .

Now as the eternal dignity, to which human nature is invited, is ſo great and glorious, can we ſuppoſe that God has not ſome regard alſo for the temporal Rights of his highly-favoured creature, Man? How, then, can any particular Man, or body of Men, preſume to ſet up their own WILL for LAW and thereby deprive their Brethren of that Right, which of all others, is moſt eſſential to Reaſonable beings, I mean the Right of Aſſent? Let thoſe men, who thus inconſiderately venture to affront the dignity of mankind by withholding from them their temporal Rights, (viz. Choice, Freewill, and the due exerciſe of that Reaſon which God has given them,) beware leſt they themſelves ſhould thereby forfeit their own eternal privileges!— Know ye not that we ſhall judge Angels?—how much more things that pertain to this Life? 1 Cor. vi. 3.

And he hath accordingly inſtituted by his Son (the eternal Word, in whom dwelleth all the fulneſs of the GOD HEAD bodily, Col. ii. 9. ) not only a Form for the admiſſion of new Members or Parties to his free COVENANT, but alſo ordained a ſolemn rite for the renewal and acknowledgement of the ſaid COVENANT from time to time at his holy Table, from which the Subjects of his Kingdom cannot ſafely abſtain without ſeeming to deny that allegiance and homage which they indiſpenſibly owe to their eternal Sovereign!

I had intended alſo to have added to this Declaration a little Tract on the Law Eternal, which limits Legiſlature, and forms the Baſis of the Subjects Rights; but the ſame Reaſon, which obliged me to poſtpone the Third part of the Declaration already mentioned, obliged me to defer this alſo for the preſent: Nevertheleſs, as my Declaration is founded on many of the principles and maxims of that ſame "eternal Law," I ſhall beg leave to add to this Preface a ſhort quotation from the ſaid Tract, concerning the weight, uſe, and manner, of applying the maxims, or rules, of eternal Reaſon: which is the more neceſſary at this time, becauſe I find there are great numbers of people who are ſo ill informed of theſe matters as to talk of the omnipotence of Parliament, as if they conceived, that every thing whatſoever, that is ordained by Parliament, muſt be Law, whether it be good or evil, right or wrong!—A moſt pernicious and baneful Doctrine this! — A kind of Popery in Politics, (if I may uſe ſuch an expreſſion.) which is dangerous to the eternal as well as temporal happineſs of mankind!

The welfare and happineſs of Society, indeed, require, that every individual, from the higheſt to the loweſt, ſhould have ſome general idea of Law; but more particularly is this requifite in England, where the People enjoy (as the moſt valuable Heritage derived from their anceſtors) the natural and moſt equitable Right of forming a part of the legiſlative Power.

Law is indeed a very comprehenſive Term, which includes ſuch a prodigious fund of abſtruſe learning, that a particular and accurate knowledge of it is ſcarcely to be acquired with the utmoſt aſſiduity and labour even of a man's whole life; and yet a general idea of Law (I mean that which is immutable and eternal, and which forms the ground and baſis of all other Laws) may nevertheleſs be very eaſily inculcated and as eaſily retained; becauſe the great out-lines, or rather the Elements and firſt Principles, of the LAW conſiſt of the moſt obvious and ſelf-evident concluſions of REASON, which are implanted in our very NATURE; ſince we inherit from our firſt Parents the Knowledge of Good and Evil

Good and Evil are not matters of Law or of Logic. They are the moſt, if not the only, eſſential circumſtances of the world. They are what every thing elſe refers to. They ſtamp an eternal mark and difference on all things, which even imagination cannot cancel or eraſe. The enjoyment of the one, and the avoiding of the other, is the very end of our being, and likewiſe of all the beings which do or which even can be ſuppoſed to exiſt, and which have a ſenſe and perception of them. Whatever therefore relates to the general GOOD and EVIL of a People is of a public nature. It is that circumſtance which makes it ſo. The terms are as good as ſynonimous. Whatever concerns, on the contrary, only this or that individual, is of a private nature. It is confined to his or their happineſs or welfare; to his or their good and evil. There is again the true and unerring criterion. Theſe things ſeem clear to the greateſt degree of intuitive certainty. It is ſtrange to be forced to reaſon about them! Conſiderations on the Meaſures carrying on with reſpect to the Britiſh Colonies in North America. 2d Edit. p. 156, 157.

The "Conſiderations" indeed of this ſenſible Author, in every other part of his work, highly merit the moſt ſerious attention of all thoſe perſons (of what party ſoever) who deſire real information and good council concerning the preſent diſputes with our Brethren in America.

, (beforementioned) by which, every Man who is not an ideot, or madman, (that is, every Man of COMMON SENSE,) is naturally enabled to receive, diſcern, and approve, the firſt Elements or leading principles of LAW and REASON, when fairly propoſed to him in his own language: and theſe ſame Elements and their ſupreme incontrovertible authority being once known and acknowledged, it is very eaſy, in general, for any Man of Common Senſe to diſcern, by compariſon, what is contrary and repugnant thereto; for THE LAW is compared to a RULE, or RIGHT LINE, — "Lex eſt Linea Recti," — by which every thing that is oblique, crooked, tranſverſe, or different from that RIGHT LINE is eaſily known to the meaneſt capacity; and therefore, in the Law, the RIGHT LINE is always to be PREFERRED, Linea recta ſemper praefertur tranſverſali. Co. Lib. 10. b. And from hence it ariſes, that the adjectives, OBLIQUE, CROOKED, TRANSVERSE, &c. which have no immoral ſignification when applied to material ſhapes and figures, are nevertheleſs ODIOUS IN LAW, which is well obſerved by the great Sir Edward Coke. "Rectum" (ſays he) is a proper and ſignificant word for the RIGHT that any hath; and WRONG, or INJURY, is in French aptly called TORT, becauſe INJURY and WRONG is WRESTED or CROOKED, bring contrary to that which is Right and Straight, &c. (See, in the margin below, the remainder of this Remark

— "Now the LAW, that is" (ſays Sir Edward Coke) LINEA RECTA eſt Index ſui et obliqui. And Briton ſaith that TORT A LA LEY EST CONTRARIE, and as aptly for the cauſe aforeſaid is INJURY, in Engliſh called WRONG. And INJURIA is derived from in and jus, becauſe it is contrary to RIGHT, ſo as a faire tort is facere •••• um, and Fleta ſaith, eſt autem JUS PUBLICUM et PRIVATUM quod ex naturalibus praeceptis aut Ge •• iiu a, a t civilibus, ſt collectum, et quod injure ſcripto JUS appellatur, id in lege Augliae RECTUM eſſe cicitur. And in the Mirror and other places of the Law it is called DROIT, as DROIT DEFEND, the Law defendeth. 1 Inſt. lib. 2. c. 12. p. 158. The laſt two words, however, ought rather to have been rendered the Law forbiddeth, than "the Law defendeth," becauſe the Engliſh verb defend is very ſeldom uſed in the Senſe which Sir Edward Coke meant to expreſs.

.

But when great Nations become too ſubſervient to one, or a few individuals, either by the corruption or total excluſion of popular Repreſentation, in their reſpective Legiſlatures, they generally ſeem to loſe all ſenſe of Right and Wrong, all common Honeſty in their political meaſures, as if they thought the command of an earthly ſuperior would be a ſufficient warrant for them to ſet aſide THE ETERNAL LAW, and ſo perpetrate the moſt abominable actions with impunity. How ſhall we account for ſuch wretched time ſerving, in men who are endued with the natural light of Reaſon and Common Senſe! Perhaps it may be often attributed to the fear of temporal Sufferings and inconveniences which ſupercede that Reaſon and Conſcience which ſhould always controul the actions of Men, and diſtinguiſh them from Brutes

For without theſe they deſerve not the name of men, ſince a more evident "mark of the Beaſt" need not be ſought for than the neglect of reaſon and conſcience, or the baſeneſs of yielding the ſame in an active obedience to the arbitrary will of any man or body of men whatſoever.

. They forget that whilſt they yield an implicit active obedience to the unlawful commands of any temporal Monarch or Legiſlature, through the fear of preſent inconveniences or corporal Sufferings, they rebel againſt the King eternal, who has power over their ſouls as well as their bodies

"I ſay unto you," (ſaid our Lord.) my friends, be not afraid of them that kill tho body, and, after that, have no more that they can do; but I will forewa n you whom you ſhall fear: fear him, which, after he hath killed, hath power to caſt into Hell; yea, I ſay unto you, fear him. Luke xii. 5.6. See alſo Matthew x. 28.

It was on this Principle alone; this ſenſe of ſuperior Duty ariſing from the fear of God, that I founded my Addreſs to the Gentlemen of the Army, in my little Tract on "Crown Law, reſpecting the due diſtincton between Murder and Manſlaughter; but as my ſentiments on that head have ſince been cenſured, I hope it will not be thought too foreign to my preſent topic, if I inſiſt that no act of injuſtice can be more flagrant than that of denying to any particular order of Men (whether Soldiers or others) their natural Right of appealing to the eternal Law, and of acting agreeable to the dictates of their own Reaſon and Conſcience!

In my former Tract I remarked, that the Law will not excuſe an unlawful Act committed by a SOLDIER, even though he commits it by the expreſs Command of the higheſt military Authority in the Kingdom, &c. and that "Men of true Honour," who have alſo a true Senſe of Religion, will not only be mindful that they are Soldiers and Subjects to an earthly KING, but that they are alſo Soldiers and Subjects to the KING of KINGS, whoſe Laws and Precepts they will, on all occaſions, prefer to every other command, &c.

But this has been denied, it ſeems, by a Critic, in the Monthly Review for January, 1774, who calls it a ſtrange Principle! In an Age of infidelity, indeed, it may perhaps be allowed (in one Senſe) to be a ſtrange Principle; but then we have the greateſt Reaſon to lament the ignorance and depravity of thoſe Men who eſteem it ſo in any other ſenſe than than of being too often neglected and tranſgreſſed! for I truſt that no Man, who admits or believes the divine authority of the holy Scriptures, will doubt the Truth of it.

If this ſtrange PRINCIPLE had not been equally true, the Engliſh Nation (as I remarked in my former Tract) would long ago have been enſlaved: and I will now add, that even the very ſtanding Army itſelf would, by this time, have been reduced to that abject State of political Slavery, which at preſent diſgraces the ſtanding Army of France

I am a profeſſed enemy, indeed, to ſtanding Armies; but God forbid that I ſhould be ſo to the individuals incorporated therein, whoſe true honour, natural dignity, and juſt privileges, AS MEN, I ſhall over be ready to aſſert and vindicate; and indeed I am bound to do ſo by that indiſpenſible duty which I owe to the great Author of human Nature, in oppoſition to the ſpiritual prince of this world, who is ever plotting to corrupt, vilify, and enſlave, that nobleſt work of God, Mankind! And as this ſame Love and Reward, which I here profeſs for the INDIVIDUALS, of the Army, are certainly due alſo to the INDIVIDUALS of every other Body of Men, whoſe general Principles are cenſured in this Declaration, I muſt beg leave to aſſure my Readers, that I do not mean to oppoſe the Men, but merely their unreaſonable Principles, without any perſonal application whatſoever; for, otherwiſe, the ſeverity of my expreſſions (eſpecially againſt the Church of Rome and the French Government) would be entirely inconſiſtent with that "Good-Will to Men," which I am indiſpenſibly obliged,

Upon this point I have wrote a diſtinct Tract, which is intended alſo for publication, and entitled "a Tract on the Law of Liberty."

, for my own eternal Happineſs, to maintain!

, and therefore thoſe Writers, who attempt, by any fallacious ſophiſtry, to withdraw our Britiſh Soldiers See Note in page x. of this Preface. from their obedience to the eternal Law, or from that allegiance which they indiſpenſibly owe to the empire of Reaſon and Conſcience, may juſtly be ſaid to trial them more like Brutes than Men!

But as all men of Common Senſe are enabled, by that hereditary Knowledge beforementioned, (which has been common to all ranks of people ever ſince the fall of Man,) to diſtinguiſh Good from Evil

This point is more particularly examined and proved in my Tract concerning, the Law of Nature and Principles of Action in MAN.

; ſo they are equally enabled (and indeed entitled) thereby to judge

"Do ye not know that the Saints" (which Term is not confined to Perſons of any particular Rank or Office) ſhall JUDGE THE WORLD? And, if the World ſhall be judged by you, are ye unworthy to judge the ſmalleſt Matters?—Know ye not that we ſhall JUDGE Angels?—HOW MUCH MORE THINGS THAT PERTAIN TO THIS LIFE, 1 Cor. vi. 2.3.

concerning the Legality of all human Ordinances, that is, to diſcern and diſtinguiſh Right from Wrong, Equity from Iniquity, Droit from Tort, Jus from its oppoſite Injuria, &c. This univerſal faculty of diſcernment perhaps will be better known and more readily acknowledged under the title of Conſcience; for by that natural inſtinct of Conſcience every individual knows when he does amiſs, and is thereby rendered reſponſible before God and Man for all his actions!

And as all natural Faculties may be improved by the rudiments of Art and Science, ſo even the NATURAL FEELINGS OF CONSCIENCE may be rendered more ſenſible, tender, and diſtinguiſhing, by a proper Knowledge of the Elements or leading Precepts of the LAW ETERNAL.

The remainder of the Tract conſiſts in a recital and application of ſuch general Maxims as muſt be allowed, by all perſons of Common Senſe, to be THE NECESSARY CONCLUSIONS OF REASON, and are therefore to be eſteemed LAWS OF NATURE, ſuch as no Power on Earth can have any authority to counter act; and the ſaid general Maxims or Rules of Reaſon and natural Law are accordingly by our Law writers, with great propriety, eſteemed the, firſt Foundation of the Engliſh Law

Primum Fundamentum Legis Angliae eſt LEX RATIONIS, &c. Quae in hoc Regno, ſicut in omnibus aliis Regnis, ubique tenentur. Doct. et Stud. c. 5. p. 214. There is indeed an inferior order of Maxims (though yet of very great authority) which ariſe from general cuſtoms and the approved ancient determinations of the Courts of Law; and theſe form, what is called, THE FOURTH foundation of the Engliſh Law; though they may be ranked (as the Author of Doctor and Student informs us) with the general ancient cuſtoms ON THE THIRD foundation.Si quis tamen pro uno ſolo fundamento ea (meaning the general cuſtoms, and the ſeveral maxims ariſing therefrom) cenſeri judicaverit, ad placitum ſuum, ea pro uno tantum fundamento compotare poteſt, et tune ſecundum illum quinque fundamenta (for otherwiſe he reckons ſix in in all) Legis Angliae tantum aſſignari debent. Doct. et Stud. c. 8. p. 28. But as the true meaning of the ſaid inferior Maxims is not obvious to people in general, like thoſe belonging to the firſt foundation, it is happy for us that they are not neceſſary to be known by any perſons who do not profeſs the Law; neither, indeed, can they be known without great ſtudy and labour, of which we are well appriſed by the learned Author of Doctor and Student. Haec vero maxima ſolum in Curiis Regiis, five inter Legis Angliae peritos noſcuntur, nec leviter abſque magno ſtudio in legibus Angliae habendo cogno ci poſſunt. Ideo pro ſeparabilibus fundamentis ponuntur. Ibid.

. It is on theſe incontrovertible and plain MAXIMS, theſe neceſſary Concluſions of REASON, that the following Declaration is founded; and therefore, as we are warned alſo by the revealed Laws of God not to do evil, that good may come

The Apoſtle Paul has delivered a moſt tremendous warning to thoſe wretched Politicians, who 〈◊〉 the baneful Doctrine — Let us do EVIL that GOOD may come; for he immediately adds,— WHOSE DAMNATION (ſays he) IS JUST, Rom. iii. 8. If thoſe perſons, who contend for the ABSOLUTE NECESSITY of Bribery, Penſions, and other UNDUE means of parliamentary Influence for the carrying on public Buſineſs, would carefully conſider the ſaid warning, they would have juſt reaſon to be alarmed on account of their own perſonal danger, for having promoted ſuch a baneful and deſtructive principle!

,
every reaſonable Man muſt neceſſarily admit, that Good and Evil, Right and Wrong, Juſtice and Iniquity, can never change their real properties through the ſuppoſed NECESSITY of any political Meaſures whatſoever, and that nothing but Juſtice and Righteouſneſs can ever eſtabliſh the Throne

Take away the Wicked from before the King, and his Throne ſhall be eſtabliſhed in Righteouſneſs. Prov. xxv. 5. It is only againſt ſome particular Opinions and evil Council, and not againſt the Perſons of thoſe who may have promoted the ſame, that I mean to apply this excellent proverb: The real intentions of ſuch Men, though erroneous, may have been as ſincere as my own; and I therefore proteſt, that my earneſt wiſh is to promote a change of opinions and meaſures, rather than of perſons, ſince thoſe, who are once convinced of their former miſtakes, may hereafter prove more uſeful Servants to the public than others perhaps, whoſe abilities and conduct are yet untried.

of our moſt gracious Sovereign, for whoſe Peace, and real Happineſs, both temporal and eternal, there is not a more ſincere well-wiſher amongſt all his Subjects, (notwithſtanding the freedom of the follow-Declaration,) than

GRANVILLE SHARP.
A DECLARATION OF THE People's Natural Right to a Share in the Legiſlature, &c.

AN accurate and critical knowledge of Law (ſuch as can only be acquired by much reading and long experience in the profeſſion) is indeed a neceſſary qualification for thoſe perſons who undertake to deliver their opinions concerning the nicer and more difficult queſtions of juriſprudence; but, when the Natural Rights of any of our fellow-ſubjects are apparently at ſtake, every man has a right to judge for himſelf, and to declare his ſentiments, as far as plain concluſions of reaſon and common-ſenſe will fairly warrant; and ſuch only are referred to in the following Declaration of the Natural Right of popular Repreſentation in the legiſlature.

Amongſt all the rights and privileges appertaining unto us, (ſaid that truly noble lawyer, Lord Sommers,)Judgement of whole Kingdoms, &c. p. 14.. that of having a Share in the Legiſlation, and being to be governed by ſuch laws as we ourſelves ſhall chuſe, is the moſt fundamental and eſſential, as well as the moſt advantageous and beneficial, &c.

And as all Britiſh ſubjects, whether in Great-Britain, Ireland, or the Colonies, are equally free by the law of Nature, they certainly are equally entitled to the ſame Natural Rights that are eſſential for their own preſervation; becauſe this privilege of having a ſhare in the legiſlation is not merely a Britiſh Right, peculiar to this iſland, but it is alſo a Natural Right, which cannot, without the moſt flagrant and ſtimulating injuſtice, be withdrawn from any part of the Britiſh Empire by any worldly authority whatſoever; becauſe, by the natural Law, whereunto he [ALMIGHTY GOD] hath made all ſubject, (ſays the learned Hooker,)Hooker's Eccleſiaſtical Polity, lib. 1, §. 10, p. 87. the lawful power of making laws, to command whole politic ſocieties of men, belongeth ſo properly unto the ſame entire ſocieties, that for any Prince or Potentate, of what kind ſoever upon earth, to exerciſe the ſame of himſelf, [or themſelves,] and not either by expreſs Commiſſion immediately and perſonally received from God, or elſe by authority derived at the firſt from their conſent upon whoſe perſons they impoſe laws, it is no better than mere tyranny! Laws they are not, therefore, which public Approbation hath not made ſo. Agreeable to the ſame juſt principles of natural Equity is that maxim of the Engliſh Conſtitution, that Law, to bind all, muſt be aſſented to by all; (Principia Leget Aequit. p. 56.) and there can be no legal appearance of Aſſent without ſome degree of Repreſentation.

It muſt indeed be acknowledged, that the Repreſentation of the people of England is not ſo perfect as equity may ſeem to require, ſince very many individuals have no VOTE in Elections, and conſequently cannot be ſaid expreſſly to give their Aſſent to the laws by which they are governed: nevertheleſs, the whole country which they inhabit, and in which they earn their bread, and even the very houſes in which they live, (whether they are houſekeepers or lodgers,) are repreſented

I muſt beg leave to refer the reader alſo to ſome excellent obſervations on this head, in a Pamphlet publiſhed ſince the above was written, entitled, An Argument in Defence of the Colonies, p. 76, 77, and 78.

by the votes of the reſpective proprietors; ſince every Freeholder has a Right to vote; ſo that, in this one reſpect, the Repreſentation is general; and, though far from EQUAL, would ſtill be a ſufficient check againſt arbitrary power, and afford ſufficient ſecurity for the lives and property of thoſe perſons who have no Vote, if the laws againſt parliamentary corruption (and eſpecially that Act of 7 and 8 Wil. III. c. 4.) were duly enforced; and alſo if all perſons, who are entruſted with the diſpoſal of public Money, were required to render a ſtrict account of it, and to be ſeverely puniſhed whenever convicted of exerting the influence of the public treaſury againſt public liberty; which is the moſt baneful treachery and diſhoneſty that men in office (who are the ſervants of the Public, as well as of the King) can poſſibly commit. But, notwithſtanding the Inequality of the Engliſh Repreſentation, and the various means practiſed to corrupt it, yet it has been the principal inſtrument of preſerving amongſt us thoſe remains of natural Liberty which we ſtill enjoy in a greater proportion than moſt other kingdoms, and has occaſioned more examples of juſt retribution on Tyrants, Traitors, and Court-Favourites, in the Engliſh annals, than the hiſtory of any other nation affords; ſo that M. Rapin is thereby led to conclude his account of K. Richard II. (that notorious corrupter of parliaments, and enemy to the privileges of London and other corporations) with the following reflection: That, in a government ſuch as that of England, all the efforts that the Sovereign makes, to uſurp an abſolute authority, are ſo many ſteps which lead him towards the precipice. C'eſt que dans un Gouvernement tel que celui d'Angletorre, tous les efforts que le Souverain fait pour uſurper un pouvoir abſolu ſont autant de pas qui le conduiſent vers le précipice. Tome 3. Liv. x. p. 329. It is manifeſt, therefore, that the conſtitutional government of England, even with all its defects, is infinitely better than any other form of government whereby the people are deprived of their juſt ſhare in the legiſlature;

The celebrated Chancellor Forteſcue aſſerts, that a limited or politic Government (like that of England) is infinitely more eligible, for the intereſt and ſatiſfaction even of the Prince himſelf, than an abſolute regal power: — Non jugum ſed libertas eſt politicè regeve populum; ſecuritas quoque maxima nedum plebi, ſed ET IPSI REGI; alleviatio etiam non minima ſolicitudinis ſuae:Viz. That to rule the people by Government politic is no Yoke, but Liberty, and great ſecurity, not only to the ſubjects, but alſo to the King himſelf; and further, no ſmall lightening or eaſement to his charge. (De Laud. Leg. Angl. cap. 34, p. 78.) So that thoſe politicians, who plead the neceſſity of ſecuring, at any rate, a majority in parliament, to vote implicitly for whatever the Miniſter propoſes, do miſerably betray the true intereſt and peace of their Sovereign! for this fixes upon the King and his Miniſters (as in arbitrary governments) the blame and ignominy of every determination that happens to be wrong, which would otherwiſe either have been overruled by the free Council of the nation, or elſe muſt have been equally imputed to the People themſelves: and yet this wretched policy has alternately been adopted by all parties, notwithſtanding that it is founded (like many of Machiavel's doctrines) on that abominable antichriſtian principle of mere worldly-minded men, — "Let us do evil that good may come;" — whoſe damnation (ſays the apoſtle to the Romans) is juſt. Rom. iii. 8. The evil of an undue parliamentary influence they endeavour to excuſe by the plea of Neceſſity for the Good of the State, though it is certainly the moſt flagrant Violation of the fundamental principles of the State, and is abſolutely deſtructive of the true intereſt both of the Prince and People!

ſo that the Inequality of Repreſentation in this iſland affords no juſt argument for ſetting aſide the Repreſentation of the people in other parts of the Britiſh Empire; becauſe experience teaches us, that even a defective Repreſentation is better than none at all; and therefore it is highly unreaſonable, and contrary to natural Equity, to pretend that our brethren and fellow-ſubjects in the more diſtant parts of the Britiſh Empire ought to be deprived entirely of their natural Rights and Liberties, merely becauſe our own liberties are not entirely perfect! or becauſe our own Repreſentation in the Legiſlature appears, in ſome few reſpects, to be defective! and it would be quite as unreaſonable to alledge, that the principle or reaſon of the maxim before quoted (viz. that Law, to bind all, muſt be aſſented to by all) is unjuſt and inconcluſive, merely becauſe it would be very difficult to accompliſh it literally by the expreſs aſſent of every individual! But it is clearly ſufficient that the maxim be conſtrued to ſignify that delegated aſſent of the people by a majority of their legal Repreſentatives, which is conſtitutionally neceſſary to make all laws binding;

Nedum principis voluntate, ſed et totius regni aſſenſu, ipſa (i. e. Angliae ſtatuta) conduntur, quo populi laeſuram illa efficere nequeunt, vel non eorum commodum procurare, &c.Et ſi ſtatuta haec, tanta ſolennitate et prudentia edita, efficaciae tantae, quantae conditorum cupiebat intentio, non eſſe contingant, concito reformari ipſa poſſunt, et NON SINE COMMUNITATIS ET PROCERUM REGNI ILLIUS ASSENSU, quali ipſa primitus emanarunt, &c. Chancel. Forteſc. de Laud. Leg. Ang. c. 18, p. 40. b.

and ſuch a legal Repreſentation of the people is therefore abſolutely neceſſary to conſtitute an effectual Legiſlature for any part of the Britiſh Empire; for no Tax can be levyed without manifeſt Robbery and Injuſtice where this legal and conſtitutional Repreſentation is wanting; becauſe the Engliſh Law abhors the idea of taking the leaſt property from Freemen without their free conſent — "It is iniquitous" ( iniquum eſt, ſays the maxim)

Iniquum eſt ingenuis hominibus non eſſe liberam rerum ſuarum alienationem. Co. Lit. 223. And again: Quod noſtrum eſt, ſine facto five defectu noſtro, amitti ſeu in alium transferri non poteſt. 8 Co. 92. Rerum ſuarum quilibet eſt moderator et arbiter. Co. Lit. 223. Regulariter non valet pactum de re mea non alienanda. Co. Lit. 223. And again: Non poteſt rex ſubditum renitentem onerare impoſitionibus. 2 Inſt. 61. from Forteſcue, c. 9. and 18.

that Freemen ſhould not have the free diſpoſal of their own effects; — and whatever is iniquitous can never be made lawful

Quicquid eſt contra normam recti eſt injuria. 3 Bulſ. 313. And Lex nemini operatur iniquum — nemini facit injuriam. Jenk. Cent. 22. And therefore Quod contra legem fit PRO INFECTO habetur. 4 Co. 31.

by any authority on earth; not even by the united authority of King, Lords, and Commons; for that would be contrary to the eternal

"Lex eſt ab aeterno." Jenk. Cent. 34.

Laws of God, which are ſupreme.

Etiam ſi aliquod ſtatutum eſſet editum contra eas, (leges divinas,) nullius vigoris in legibus Angliae cenſeri debet, &c. Doct. et Stud. c. 6, p. 18.

In every point of view, the making laws for the ſubjects of any part of the Britiſh Empire, without their participation and aſſent, is INIQUITOUS, and therefore unlawful: for though the purport of any law, ſo made, be in itſelf perfectly juſt and equitable, yet it becomes otherwiſe

Qui aliquid ſtatuerit parte inaudita altera, aequum licet dixerit, haud aequum fecerit. Princip. Leg. et Aequit. p. 90. or — "haud aequus fuerit." 6 Co. 52.

(that is, unjuſt and iniquitous, and therefore unlawful) by the want of theſe neceſſary legal Formalities

"Forma legalis forma eſſentialis." 10. Co. — 100. And Forma non obſervata infertur adnullatio actus. 12 Co. 7.

of Repreſentation and Aſſent: for if the inhabitants of one part of the empire might determine a queſtion, or enact a law, for the peculiar advantage only of that one part, though to the manifeſt detriment and injury of another part, without the Repreſentation of the latter, the former part would be made judges in their own cauſe; a circumſtance that would be literally partial! the very reverſe of juſtice and natural equity, and which muſt, therefore, be eſteemed Iniquity, even to a fundamental maxim,

Iniquum eſt aliquem rei ſui eſſe judicem. — "In propria cauſa nemo judex." Principia Legis et Aequitatis, p. 41.

viz. It is INIQUITOUS for any one to be a Judge in his own cauſe. Partiality is, therefore, ſuch an abomination in the eye of the law, that no Power on earth can make it LAWFUL: for even an Act of Parliament (ſays the learned Judge Hobart, Rep. 87.) made againſt NATURAL EQUITY, as to make a man judge in his own caſe, (the example, obſerve, is the very point in queſtion) "is VOID in itſelf;" for jura naturae ſunt immutabilia, and they are "leges legum."

Every King of England (apparently for the ſame reaſon) is reſtrained by the Law from changing or making new Laws without the aſſent or conſent of his WHOLE KINGDOM in Parliament expreſſed. NEQUE Rex ibidem, per ſe, aut miniſtros ſuos, tallagia, ſubſidia, aut quaevis onera alia, imponit legiis ſuis, aut leges eorum mutat, vel novas condit, ſine conceſſione vel aſſenſu totius regni ſui in parliamento ſuo expreſſo, &c. Chancell. Forteſcue de Laudibus Legum Angliae, c. 36, p. 84. b. And the whole Kingdom, even of Great-Britain itſelf, is only a part of the Britiſh Empire; and therefore, by a parity of reaſoning, cannot juſtly or equitably be permitted to make laws for the whole; becauſe where the ſame reaſon is, the ſame law (or right) muſt prevail:

"Ubi eadem ratio, ibi idem lex," or "jus." Principia Leg. et Aequit. p. 116.

for turpis eſt pars quae non convenit cum ſuo toto; (Plowden, 161.) and nihil in lege intolerabilius eſt, eandem rem diverſo jure cenſeri. 4 Co. 83. The free Repreſentation of the people in the legiſlature is, therefore, to be eſteemed, of all our Rights, the moſt eſſential, (as Lord Sommers has declared,) to maintain that excellent Equilibrium of power, or mixt government, limited by law, which our anceſtors have always moſt zealouſly aſſerted, and tranſmitted to us, as our beſt Birthright and Inheritance; Major haereditas venit unicuique noſtrum a jure et legibus quam a parentibus. 2 Inſt. 56. ſo that every attempt to ſet the ſame aſide in any degree, or in any part of the empire, or to corrupt it by undue influence of places and penſions, or bribes with public money, is Treaſon againſt the Conſtitution; the higheſt of Treaſon:

The firſt and higheſt Treaſon is that which is committed againſt the Conſtitution. Lord Sommers's Judgement of whole Kingdoms, p. 8. Eſt autem injuria omne quod non jure fit. Fleta, l. 2, c. 1. And, on the other hand, they neither are, nor can be Traitors, who endeavour to preſerve and maintain the Conſtitution; but they are the Traitors, who deſign and purſue the ſubverſion of it; they are the Rebels, that go about to overthrow the Government of their Country; whereas ſuch as ſeek to ſupport and defend it are the truly loyal perſons, and do act conformable to the ties and obligations of fealty. Lord Sommers, p. 9. — Agreeable to this doctrine was the anſwer of Dr. Sharp, archbiſhop of York, when the queſtion was put to him, How a perſon, who had ſworn Allegiance to King James, could, with a good conſcience, take the ſame oath to King William? To which he replied, That the Laws of the land are the only rule of our conſcience in this matter, and we are no further bound to pay obedience to governors, nor to any other governors, than the Laws enjoin. If, therefore, King William, in the eye of the Law, be our King, we muſt in conſcience pay obedience to him as ſuch. I take this (ſays he) for a certain truth, that, as the Law makes the King, ſo the ſame Law extends, or limits, or transfers, our obedience and allegiance; and all Oaths impoſed by the Law oblige the conſcience no further than the Law meant they ſhould oblige. Only this is always to be remembered, that whatever Obedience the Laws of the land require of us, it is to be underſtood with this proviſo, that it be not contradictory to the Laws of God. But in that caſe we muſt obey paſſively, though we cannot obey actively: and with this tacit condition I do ſuppoſe all oaths of fidelity in the world are given and taken. Life of Abp. Sharp, part 3d, pag. 24, 25, and 26. MS. wrote by his Son, for the uſe of his Grandchildren.

and therefore whatſoever is ordained, that can clearly be proved to be contrary to the conſtitution, muſt be allowed to be fundamentally wrong, and therefore null and void of itſelf; for, ſublato fundamento, cadit opus. (Jenk. Cent. 106.) But more particularly the Parliament has no power to give up the ancient and eſtabliſhed Right of the people to be repreſented in the legiſlature; becauſe an Act for ſo baſe a purpoſe would entirely ſubvert the principles and conſtitution on which the very Exiſtence of the legiſlature itſelf, which ordained it, is formed! ſo that ſuch an unnatural Act of the ſtate would be parallel to the crime of felo de ſe in a private perſon; and, being thus contrary to the nature of things, can never be rendered valid by any Authority whatſoever.

Quae rerum naturâ prohibentur NULLA LEGE confirmata ſunt. (Finch, 74.) And Nihil quod eſt contra rationem eſt licitum. Co. Lit. 97.

And indeed it is laid down as a maxim, by the great Lord Sommers, that no man or ſociety of men have power to deliver up their preſervation, or the means of it, to the abſolute Will of any man (or men); and they will have always a right to preſerve what they have not power to part with. P. 26. And if a politic ſociety has no juſt power to deliver up even its own preſervation, it certainly has much leſs right to deliver up the neceſſary preſervation of other ſocieties of their brethren and friends (not repreſented among them) without their Conſent: and all ſuch attempts muſt neceſſarily be deemed void and ineffectual, becauſe there is no neceſſity to obey, where there is no authority to ordain.

Ubi non eſt condendi authoritas, ibi non eſt parendi neceſſitas. Dav. 69. And Judicium a non ſuo judice datum nullius eſt momenti. 10 Co. 76.

For as it ſo clearly appears, from what has been ſaid, that Natural Equity does not permit even the inferior Property of lands, goods, chattels, or money, to be alienated without the conſent or fault of the proprietors, much leſs can it permit the alienation, annulling, or changing, of our moſt valuable inheritance, the Law, without the due aſſent and conſent of the heritors themſelves, the People at large, or their lawful Repreſentatives in their reſpective aſſemblies or parliaments!

Nam non poteſt rex Angliae, ad libitum ſuum, leges mutare regni, ſui. Principatu nam que nedum regali, ſed et politico, ipſe ſuo populo dominatur. And again: "Quia nec leges, ipſe" [rex] ſine ſubditorum aſſenſu mutare poterit, nec ſubjectum populum renitentem onerare impoſitionibus peregrinis; quare populus ejus libere fruetur bonis ſuis, LEGIBUS, quas cupit, regulatus, nec per regem ſuum, aut quemvis alium depilatur, &c. Chancel. Forteſcue de Laud. Leg. Ang. c. 9, p. 26.

This is a neceſſary concluſion of reaſon and common-ſenſe; drawn from the effect and force of Natural Equity, even in caſes of much leſs conſequence (viz. reſpecting goods and common pecuniary property); ſo that the diſtinction, which ſome great and able politicians have lately made, between Taxation and Legiſlation, (in the late diſputes about taxing the Colonies,) was certainly erroneous, though well intended; ſince it plainly appears, that the right of Legiſlation is not leſs inſeparable, by Natural Equity, from the people of every part of the Britiſh Empire, than the right of granting or with-holding Taxes; for, otherwiſe, the free ſubjects of one part of the empire would be liable to be moſt materially injured in their greateſt and moſt valuable inheritance, the Law, by the haſty deciſions of men on the other ſide of the empire, with whom probably they would be totally unacquainted, and whoſe intereſt might perhaps be as widely different from theirs (for any thing they could know to the contrary) as their ſituation upon the face of the globe is diſtant; that is, as widely different as the Eaſt is from the Weſt! Would this be equitable? could ſuch notorious Injuſtice

Si a jure diſcedas, vagus eris, et erunt omnia omnibus incerta. Co. Lit. 227. And, Rerum ordo confunditur ſi unicuique juriſdictio non ſervetur. (4 Inſt. proem.) For, if the fundamental Rule of the Conſtitution be ſet aſide even in one inſtance, the baneful influence of ſuch an evil precedent will ſoon prepare the way for the Deſtruction of the whole Law; becauſe uno abſurdo dato, infinita ſequuntur. 1 Coke, 102.

be ever made lawful? The true conſtitutional mode of connecting Britiſh Dominions, that are otherwiſe ſeparated by Nature, is demonſtrated by the eſtabliſhed example of the Union of Great-Britain and Ireland, which by long experience has proved to be ſufficiently effectual. It muſt be acknowledged, indeed, that an Act of Parliament was made in the 6th of K. George I. chap. 5. wherein it is laid down, that the King and Parliament of Great-Britain may make Laws to bind Ireland.

If the preceding arguments are not ſufficient to prove in what light the ſaid Act is to be conſidered, yet the preſent diſtinct and ſeparate Juriſdiction of the Iriſh Parliament, the Continuation of their ancient and conſtitutional Privileges, notwithſtanding the doctrine aſſerted in the ſaid Act, and their annual Tranſactions, both in Taxation and Legiſlation, are Facts, which prove (better than Arguments) that the people of Ireland have an inherent Right to enact Laws independent of the Britiſh Parliament; otherwiſe the King's Aſſent would not be ſufficient to render the ſaid laws valid and binding without the eſpecial approbation and conſent alſo of the Britiſh Parliament, which indeed is never required; ſo far is it from being neceſſary! And, farther, the inhabitants of Great-Britain would think it extremely unreaſonable and unjuſt, if the Parliament of Ireland ſhould claim a Right of making Laws, with the King's aſſent, to bind any part of this Iſland! The argument is reciprocal: ſo that, if we ſhould really deteſt ſuch a meaſure againſt ourſelves, the Law of Laws forbids us to claim the like power over any of our fellow-ſubjects, without their free conſent. "Non facias alteri quod tibi non vis fieri." This is laid down as one of the moſt common precepts of the Law of Reaſon (Doct. and Stud. c. 2, p. 7.); and ſuch is the immutability of the Law of Reaſon, that againſt it there can be no preſcription, ſtatute, or cuſtom; and if any are made contrary thereto, they are not to be eſteemed ſtatutes or cuſtoms, but corruptlae, i. e. Corruptions or Depravities — Non ſunt ſtatuta ſive conſuetudines, ſed corruptelae. Doct. and Stud. c. 2, p. 5. To the ſame effect is that Command of Chriſt himſelf, (recorded in Matt. vii. 12.) which our Lord declared to be the Law and the Prophets; viz. Whatſoever ye would that men ſhould do to you, do ye even ſo to them: for this is THE LAW AND THE PROPHETS: ſo that it may juſtly be intitled, the Law of Laws; and a ſtatute, therefore, which is contrary thereto, is doubly unlawful.

The ſeparate intereſts of the two Kingdoms are ſufficiently reſtrained, with reſpect to each other, by our excellent Conſtitution of State, which requires the Aſſent of the People, (that is of thoſe which are concerned reſpectively,) to render any Law valid and binding upon either nation; which the foregoing arguments demonſtrate: and I hope the ingenious and ſenſible author of the argument in defence of the Colonies (lately publiſhed) will acknowledge, that he has allowed too much, when he admits, in page 114, that the whole kingdom of Ireland is bound by the Acts of the ſupreme Legiſlature, &c. which doctrine leads him afterwards to make a diſtinction between Taxation and Legiſlation.

And again, the two kingdoms are ſo firmly united, by the bands of Allegiance, to one Head (or Monarchy) of limited power, that their intereſts in all material external exigences are thereby rendered mutual, as well as their internal intereſt, in the maintenance of natural and conſtitutional Liberty, in each kingdom reſpectively; becauſe one of them cannot be deprived of this, (as they are governed by the ſame Head,) without haſtening the deſtruction of the other. And this intimate connexion of mutual intereſt in the conſtitution of ſtate, and in the reciprocal enjoyment of the ſame reaſonable common Law, (whereby each kingdom enjoys an Equality of privilege, and natural freedom,) renders the Union of the two kingdoms more juſt and equitable, and, conſequently, more ſafe and durable, than it could poſſibly have been made by any other means: and the inhabitants of both iſlands (though ſprung from a variety of jarring, jealous, and fierce nations) have, by theſe means acquired a certain mutual conſideration for each other, as fellow-ſubjects, which could never have been produced by mere alliances, guarantees, or defenſive leagues, nor, perhaps, by any other mode of government whatever, than that by which divine Providence has effected it; viz. the Engliſh Conſtitution: this has firmly united the Strength of the two Iſlands; whereby reciprocal ſuccour, in time of need, is inſured to both.

But, as it does not appear that the Parliament of Ireland ever acknowledged or gave any formal Aſſent to the ſaid Act, the ſame muſt neceſſarily be conſidered as a mere aſſertion on one part, at the making of which, the perſons moſt materially concerned on the other part were neither HEARD, nor repreſented! a defect

Qui aliquid ſtatuerit, parte inaudita altera, licet aequum dixerit, haud aequum fecerit: ſo that, if any act is ever ſo juſt in itſelf, yet it becomes otherwiſe (that is, unjuſt and iniquitous, as is before remarked) by the want of theſe legal formalities.

the moſt notorious that can poſſibly be attributed to any proceeding, either in the enacting or execution of Laws! and therefore it is to very little purpoſe to cite the ſaid Act as a Precedent for taxing the American Subjects without their Conſent; for the privileges which the Parliament of Ireland has maintained and enjoyed, both before and ſince that time, (clearly diſtinct and ſeparate from the Britiſh Parliament,) afford a better and more authentic precedent on the other ſide of the queſtion, (viz. in behalf of the people's natural Rights,) than the Act itſelf does againſt them: for, as the King and the People (including the Lords and Commons) of Great-Britain conſtitute the ſovereign Power (under God) or Legiſlature of Great-Britain, ſo the King and the People of Ireland are the natural and conſtitutional Legiſlature or State of that kingdom, and actually exerciſe (both in Legiſlation and Taxation) their diſtinct juriſdiction, to this day; which is the beſt proof of their Right: and, in like manner, according to this ancient and eſtabliſhed legal precedent, the King, together with the People of every diſtinct province, ſubject to the imperial Crown of Great-Britain, and detached (as Ireland is) from this iſland, ought to be and have been eſteemed, from the firſt eſtabliſhment of our colonies, the only proper and conſtitutional Legiſlature for each province reſpectively;

Every eſtabliſhment in the American Colonies has been ſettled by our anceſtors as nearly as poſſible to the conſtitutional form of government in the Mother-Country; and, as the advantages of this mode have been proved by the experience of more than a century; (ſee an argument, juſt publiſhed, in defence of the excluſive Right, claimed by the Colonies, to tax themſelves, p. 36, 39, 44.) it is very dangerous (now that the colonies begin to be filled with people) to vary the ancient and approved Form of the Conſtitution. Periculoſum eſt res novas et inuſitatas inducere. Co. Lit. 379. And, Clauſulae inconſuetae ſemper inducunt ſuſpicionem. 3 Co. 81. And again, Quae praeter conſuetudinem et morem majorum fiunt neque placent, neque recta videntur. 4 Co. 78. And laſtly, Whatſoever is againſt the Rule of Law is inconvenient. Co. Lit. p. 379.

becauſe the Repreſentation of the People, in every part of the Britiſh Empire, is abſolutely neceſſary to conſtitute an effectual Legiſlature, according to the fundamental principles of the Engliſh Conſtitution; for none of them, ſeparately, can be eſteemed a competent Legiſlature to judge of the other's Rights, without the higheſt injuſtice and iniquity; which is before demonſtrated by ſome of the firſt maxims or principles of Reaſon. And yet, howſoever diſtinct theſe ſeveral parts or provinces may ſeem, in point of ſituation, as well as in the exerciſe of a ſeparate legiſlative power for each, (which conſtitutional Right they have enjoyed beyond the memory of man,) they are nevertheleſs firmly united by the circle of the Britiſh Diadem, ſo as to form one vaſt Empire, which will never be divided, if the ſafe and honeſt policy be adopted, of maintaining the Britiſh Conſtitution inviolate, in all parts of the Empire: for it is a ſyſtem ſo natural, ſo beneficial, and ſo engaging, to the generality of mankind, that by the ſame means we might hold the Empire of the World, were the laws of natural Equity, Juſtice, and Liberty, to be ſtrictly obſerved, and the abomination of domeſtic

The toleration of domeſtic Slavery in the Colonies greatly weakens the claim or natural Right of our American Brethren to Liberty. Let them put away the accurſed thing (that horrid Oppreſſion) from among them, before they preſume to implore the interpoſition of divine Juſtice; for, whilſt they retain their brethren of the world in the moſt ſhameful involuntary ſervitude, it is profane in them to look up to the merciful Lord of all, and call him Father!

as well as political Slavery aboliſhed!

On the other hand, it is not only Treaſon againſt the Conſtitution to attempt to deprive any free Britiſh Subjects of their natural Right to a Share in the Legiſlature,

To extend the Governor's Right to command, and Subject's Duty to obey, beyond the Laws of one's country, (ſaid that learned lawyer, Lord Sommers,) is TREASON againſt the Conſtitution, and Treachery to the ſociety whereof we are members. Judgement of whole Kingdoms, &c. p. 6.

but it is equally derogatory and injurious to the Authority of the Crown; Nor is it merely the firſt and higheſt Treaſon in itſelf, that a member of a political ſociety is capable of committing, to go about to ſubvert the Conſtitution; but it is alſo the greateſt Treaſon he can perpetrate againſt the Perſon, Crown, and Dignity of the King; for ſuch an endeavour both annuls and vacates all his title to ſuperiority over thoſe above whom he was exalted from the common level by virtue of the Conſtitution, and deprives him of all rightful and legal claim of rectoral authority over the ſociety, by deſtroying the alone foundation upon which it was erected, and by which he became veſted with it, &c. Ibid. p. 9. & 10. becauſe a King of England has no legal Authority to govern by any other mode than that limited government called the Engliſh Conſtitution, which he is ſworn to maintain; for ſuch is the frailty of human nature, that no man or body of men whatever is to be entruſted with the adminiſtration of government, unleſs they are thus limited by Law, and by a due Repreſentation of the people at large, ſubject to a frequent appeal, by Election, to the whole body of conſtituents: for it is a maxim, that he who is allowed more Power, by Law, than is fit, (or equitable,) the ſame will ſtill deſire more Power than is already lawful: Cui plus licet quam par eſt, plus vult quam licet. 2 Inſt. 465. ſo that no Power on earth is tolerable without a juſt limitation; and Law, which ought to be ſupreme, Firmior et potentior eſt operatio legis quam diſpoſitio hominis. Co. Lit. 102. cannot ſubſiſt where Will and Pleaſure are abſolute, whether it be the Will of one, of a few, or of many.

"Whoſoever" (ſays Ariſtotle) is governed by a man without Law, is governed by a man and by a beaſt. Lord Sommers, N. 11.

Ipſe autem rex, non debet eſſe ſub homine, ſed ſub Deo, et ſub lege; quia lex facit regem. Attribuat igitur rex legi quod lex attribuit ei, videlicet dominationem et poteſtatem: non eſt enim rex ubi dominatur voluntas, et non lex. Bracton, lib. 1, c. 8. Rex autem habet ſuperiorem, Deum. S. — Item legem, per quam factus eſt rex. — Item curiam ſuam, &c. — Et ideo ſi rex fuerit ſine fraeno, i. e. ſine lege, debent ei fraenum ponere, &c. Bract. lib. 2, c. 21, p. 34

A King, therefore, who preſumes to act without the conſtitutional limitation, deſtroys the foundation of his own authority; for the moſt reſpectable and moſt ancient writer on the Engliſh Conſtitution aſſures us, that there is no King where Will rules, (or is obſolute,) "and not Law."

Non eſt enim rex ubi dominatur voluntas, et non lex. Bract. lib. 1, c. 8, p. 5, b.

The ſame doctrine is expreſſed ſtill more clearly in the old Year Books, —I a ley eſt le plus haute inhéritance que le roy ad: car par la ley il même et touts ſes ſujets ſont rulés, et ſi le ley ne fuit, NUL ROI, et nul inhéritance, ſera. 19 Hen. VI. 63. that, if there was no Law, there would be no King, and no inheritance.

For theſe plain reaſons, whenever the Engliſh Government ceaſes to be limited, in any part of the Britiſh Dominions, it ceaſes to be lawful!

And therefore the fatal conſequences of proceeding to enforce the execution of any Acts, or Reſolutions, for the eſtabliſhing ſuch unlimited and unlawful Ubi non eſt condendi authoritas, ibi non eſt parendi neceſſitas. Dav. 69. Prin. Leg. et Aequit. p. 117. Government, is more eaſily conceived than expreſſed; becauſe the condition of all ſubjects would be alike, whether under abſolute or limited Government, if it were not lawful Inſuper lex rationis permittit plurima fieri, ut ſcilicet quod licitum eſt vim vi repellere, et quod fas unicuique ſe tueri et rem ſuam defendere contra vim injuſtam. Doct. et Stud. c. 2, p. 8. — See alſo Bracton, lib. 4, c. 4, p. 162. b. to maintain and preſerve thoſe limitations, ſince Will and Pleaſure, and not Law, would be, alike in both, the meaſure of obedience; for, to have liberties and privileges, unleſs they may be defended, and to have none at all, is the ſame thing as to be governed by mere Will and Pleaſure (Lord Sommers, p. 24.) ; and miſera eſt ſervitus ubi jus eſt vagum aut incertum.

Old-Jewry, London, June 25, 1774. GRANVILLE SHARP.
(COPY.) EXTRACT of a LETTER on the foregoing Subject, to a Friend in AMERICA, dated February 21, 1774.

_____ I have alſo ſent you a book lately publiſhed by Dr. —, reſpecting the government of the Britiſh Colonies.

The reaſon of my ſending the latter is not becauſe I approve of it, or have the leaſt connexion with the author; but, on the contrary, that you and your friends in America may be aware of the unconſtitutional doctrines which are thereby propagated amongſt us. I have not, indeed, had opportunity to peruſe it regularly; neither do I now think it neceſſary to do ſo; for I was lucky enough, when I firſt took it up, to turn over a few pages in the fourth part, containing five propoſitions upon the point in queſtion, whereby the author's ſentiments and intentions may be ſufficiently known without deſcending to his arguments upon them; for not one of them (not even the 5th and laſt, which he himſelf prefers) can poſſibly be reconciled either to Law, Equity, or ſound Politicks; ſo that if the doctor, with the ſame neglect of Law and conſtitutional Principles, had multiplied his propoſitions to the number of an hundred times five, he would not have been able to lay down a plan or mode of government tolerably ſuitable to the caſe before him; becauſe, in this, as in many other things, there is but, one right, though very many wrong methods of proceeding; and the doctor has unfortunately forgot to ſtate the only right propoſition upon the ſubject in queſtion, that can be admitted conſiſtently with the neceſſary principles abovementioned of Law, Equity, and ſound Politicks; viz. to do juſtice to our brethren of America; that is, to govern them according to the eſtabliſhed Principles of the Engliſh Conſtitution, and known Laws of the Land, and candidly to acknowledge their unalienable right to the ſame happy privileges by which the liberties of the mother-country have hitherto been maintained; the moſt eſſential of which is the privilege of paying no other taxes than what are voluntarily granted by the people or their legal repreſentatives in general councils or parliaments.

Dr.—is inexcuſable for having omitted this ſixth Propoſition! for he cannot be ignorant of the legal and eſtabliſhed mode of extending the Engliſh Conſtitution to countries detached from this iſland, becauſe we have a ſtanding precedent and example (which has long ſubſiſted, and has been univerſally allowed) in the preſent government of Ireland; for that iſland, though unjuſtly conquered by our anceſtors, enjoys (or, at leaſt, is allowed to be entitled to) the ſame conſtitutional privileges as the ſeat of empire, England itſelf. The reſpective Parliaments of the two iſlands are entirely independent of each other; they ſeparately grant, from time to time, the neceſſary ſupplies to the ſtate; and no man may preſume to deny their right of enquiring reſpectively into the application of them. But, notwithſtanding this diſtinct oeconomy, and the entire independency of the natives or ſubjects, with reſpect to each other, yet they are firmly united, by the bands of allegiance, to one Head (or Monarchy) of limited power, whereby they enjoy the privileges of the ſame reaſonable common Law, and the ſame excellent Conſtitution of ſtate: ſo that the equality of privilege and condition renders the Union more juſt and equitable, and conſequently more ſafe and durable, than it could poſſibly have been made by any other means.

And the inhabitants of both iſlands (though ſprung from a variety of jarring, jealous, and fierce nations) have, by this means, acquired a certain mutual conſideration for each other, as fellow-ſubjects, which could never have been produced by mere alliances, guarantees, or defenſive leagues, nor perhaps by any other mode of government whatever, than that by which Divine Providence has effected it; viz. the Engliſh Conſtitution.

This has firmly united the ſtrength of the two iſlands; whereby reciprocal ſuccour in time of need is inſured to both. This eſtabliſhed example of the true conſtitutional mode of connecting Britiſh Dominions, that are otherwiſe ſeparated by Nature, will enable us, by compariſon, to diſcern the illegality and injuſtice of Dr.—'s five Propoſitions. The ſtately vine of Britiſh Dominion (if I may uſe that ſcriptural type) has providentially extended its luxuriant branches to the moſt diſtant parts of the earth! and will continue to ſpread and increaſe as long as Juſtice and the Laws of Liberty are duly maintained by thoſe who are entruſted with the adminiſtration of government (unleſs the wickedneſs of individuals, manifeſted by the exerciſe of domeſtic Slavery and Oppreſſion in the Colonies, and of political Corruption and Venality at home, with the growing vices attending both reſpectively, ſhould unhappily draw down God's vengeance upon us! and perhaps our mutual puniſhment is at this time impending in the preſent differences and ignorance of the Engliſh Conſtitution): But how will the trunk or ſtock of the Britiſh Vine appear, if we ſhould entirely ſeparate or lop off the branches?—The American Branches are already detached, indeed, (in point of diſtance,) and widely ſeparated from the Trunk, by a vaſt Ocean, but the imperial Crown of Great-Britain is, nevertheleſs, a ſufficient band of union or connexion between them, it being the legal enſign of authority for the maintenance and execution of the ſame juſt laws, the influence of which may, by a due conſtitutional exertion of the regal Power, be circulated, like wholeſome ſap, from the root to the moſt diſtant branches.

But if (according to Dr.—'s 5th propoſition) the flouriſhing branches of North-America were to be entirely ſeparated from the trunk, and excluded from the circle of the royal diadem, the effect would be reciprocally humiliating; for the act of ſeparation would, at the ſame time, unavoidably contract the imperial Authority of the Britiſh Empire to the narrow limits of Britiſh and Iriſh ground, except a few ſmall Sugar-Iſlands, peopled chiefly by the moſt miſerable of ſlaves: ſo that both Great-Britain and her Colonies would reciprocally loſe importance, ſtrength, and ſecurity, by the diſunion. A Guarantee of independence againſt all foreign invaders, as propoſed by Dr.—, would fall far ſhort of the effect which we enjoy by the preſent conſtitution, becauſe it would not, like the latter, produce that mutual conſideration and protection which are due from fellow-ſubjects. Our connexion, according to the doctor's meaſure, would be upon no better footing than Alliances of the ſame kind with detached foreign Powers, which (as experience teaches us) ſubſiſt no longer than the private intereſt or ſeparate views of the contracting parties.

If all theſe points are duly conſidered, the very propoſing ſo pernicious a meaſure muſt appear highly criminal, if not treaſonable! eſpecially as the author has been pleaſed to inſinuate, that there is no alternative!— If we neither can govern the Americans, (ſays he,) nor be governed by them; if we can neither unite with them, nor ought to ſubdue them; what remains (ſays he) but to part with them on as friendly terms as we can? But is it not Treaſon againſt the Crown to inſinuate that the Americans cannot be governed, as well as Treaſon againſt the People at large, to ſay that we cannot unite with our American Brethren, when there is a conſtitutional mode both of Government and Union, eſtabliſhed by law, and an unqueſtionable precedent, the obſervance of which would undoubtedly ſatisfy every honeſt American Subject?

The advocates for the juriſdiction of the Britiſh Parliament in America, like all promoters of bad meaſures, will not fail to repreſent thoſe, that oppoſe them, as licentious and diſaffected perſons; and therefore, as it is highly neceſſary for the general welfare and ſubſiſtence of the Britiſh Empire, both in Europe, Aſia, and America, (upon the principles already explained,) that we ſhould ſtrictly maintain our Loyalty to the Crown, at the ſame time that we ſteadily aſſert our legal and conſtitutional Rights,—I think we ought to loſe no proper opportunity of expreſſing our perſonal attachment to the King and the royal Family, who, in themſelves, indeed are truly amiable, and worthy of eſteem; but it is very difficult, in this world, to guard againſt miſrepreſentation and bad advice; however, I truſt that a ſteady perſeverance in Love and Duty will be the true means of your prevailing in the end, as it will prove that your oppoſition is not occaſioned either by diſaffection or diſloyalty, but is truly legal and conſtitutional.

I am, with great eſteem, Dear Sir, Your obliged humble Servant, GRANVILLE SHARP.

P. S. I am entirely unacquainted, I profeſs, with the nature of the Crown Charters or Grants to the ſeveral American Proprietors; and therefore (left theſe ſhould contain any condition or acknowledgement, on the part of the landholders, which may ſeem to militate againſt the foregoing obſervations) I muſt beg leave to add, that the legiſlature hath agreed and laid down, as a rule, that all the ancient arbitrary and military Tenures of land, and even Socage in capite of the King, and the conſequents upon the ſame, have been much more burthenſome, grievous, and prejudicial, to the Kingdom, than they have been beneficial to the King (ſee preamble to the Act of 12th of Charles II. chap. 24, for taking away the Court of Wards and Liveries and Tenures in capite, and by Knights Service and Purveyance, &c.); and for this juſt reaſon, founded on "former "experience,

Whereas it hath been found, by former experience, that the Courts of Wards and Liveries, and Tenures by Knights-Service, either of the King or others, or by Knights-Service in capite, or Soccage in capite of the King, and the conſequents upon the ſame, have been much more burthenſome, grievous, and prejudicial, &c.

the Crown hath ever ſince been reſtrained by the Law from granting "any Manors, Lands, &c." upon ſuch, or indeed any other conditions whatſoever, than "free and common Socage only." See 2d and 4th Sections of the ſaid Act.

I have heard, indeed, that a certain iſland in the northern part of America was granted to a noble lord, with a particular juriſdiction upon the ancient feudal plan, whereby he is ſaid to have been eſtabliſhed as Lord Paramount, with a peculiar unconſtitutional authority: but this, I am willing to preſume, is merely report; and, even if it were true, the Grant would be innocent enough in its effects, provided the people be inſtructed in their Rights; becauſe all ſuch undue conditions, as I have mentioned, are abſolutely null and void in themſelves; for the law obliges us to conſtrue them as if they had no other meaning than a legal Grant of lands in free and common ſocage. See the 4th ſection of the ſaid Act. And be it further enacted, by the authority aforeſaid, that all Tenures (there is none excepted) hereafter to be created by the King's Majeſty, his heirs, or ſucceſſors, upon any Gifts or Grants of any Manors, Lands, Tenements, or Hereditaments, of any Eſtate of inheritance at the common law, ſhall be in free and common Socage, and ſhall be adjudged to be in free and common Socage onely, and not by Knights Service, &c.

SOLI DEO GLORIA ET GRATIA.
A DECLARATION OF THE People's Natural Right to a Share in the Legiſlature, &c. PART II. Qui non libere veritatem pronunciat, proditor eſt veritatis. 4 Inſt. Epil. PART II. CONTAINING A DECLARATION Or DEFENCE of the ſame DOCTRINE, (Viz. The Natural Right of the People to a Share in the Legiſlature,) When applied particularly TO THE PEOPLE of IRELAND; In ANSWER to the ASSERTIONS of ſeveral EMINENT WRITERS on that Point, which have hitherto been permitted to paſs without due ANIMADVERSION.

WHEN the Firſt Part of this Declaration was ſent to the Preſs, I was not aware that there had been any controverſy before the ſixth of King George I. concerning the freedom of our fellow ſubjects in Ireland, or that any Engliſhman, acquainted with the principles of our excellent conſtitution of State, had ever, before that time, preſumed to advance any Doctrine, which might tend to deprive our Iriſh Brethren of their natural freedom, and of the ineſtimable benefits of that happy legal conſtitution, which Britiſh Subjects in general are commonly ſuppoſed to inherit by BIRTHRIGHT!

But I have ſince had the mortification to find, that ſuch great Authorities as Lord Coke, Judge Jenkins, Lord Chief Juſtice Vaughan, Judge Blackſtone, the Honourable Mr. Juſtice Barrington, &c. might be quoted in favour of a contrary Doctrine! And as I have mentioned the Union between Great-Britain and Ireland in the Firſt Part of this Declaration, &c. as an Example of the true conſtitutional mode of connecting Britiſh Dominions that are otherwiſe ſeparated by nature, I thought myſelf therefore, obliged to ſearch and examine the grounds upon which theſe grew and learned men have founded their opinions, that if they ſhould have Truth on their ſide, they might have the credit of it; but if not, that the Truth of this important queſtion, when plainly and impartially ſtated, might prevent for the future any ſuch undue pretenſions on the one hand, and jealouſies on the other, as have too frequently occaſioned miſunderſtandings and controverſies between the Subjects of the two Kingdoms.

Lord Huſſey, Chief Juſtice in the Reign of King Henry VII. ſeems to have been the Firſt who ventured publicly to aſſert, that Statutes made in England ſhall bind the Subject of Ireland Huſſey, Chief Juſtice, diſoit que les Statuts falts on Angleterre liera ceux de Ireland, que ne ſuit moult. 〈◊〉 d s autres Juſtices, nient obſtant que a c •• n de oux furent en coutrarid opinione. le derrein term en ſon abſence. Year Book, 1 Hen. VII. p. 3. : And though the Doctrine is unconſtitutional and dangerous, if admitted in a general unlimited ſenſe

Which is clearly proved by Sir Richard Bolton, Chancellor of Ireland, in the Declaration, &c. printed in Harris's Hibernica, p. 29.— As to the Opinion of Huſſy, Chief Juſtice, in firſt of Hen. 7. fol. 3. that the Statutes made in England ſhall bind them of Ireland, this Opinion, as it is put by him generally, cannot be law; for Brooke, in abridging that caſe in title Parliament, Sect. 19. ſaith, that that opinion was denied to be law, the laſt term before; and added further, tamen nota, that Ireland is a Realm of itſelf, and hath a Parliament in itſelf, implying thereby, that Ireland could not be bound but by a Parliament of Ireland. And according to that, is the opinion of the Judges in 20th Hen. VI. fol. 8. in John Pilkington's caſe; and in 2d Rich. III. fol. II. in the Merchants of Waterford's caſe, before remembered; and likewiſe contrary to the opinion of Huſſy, are the judgements of eight ſeveral Parliaments in Ireland before the Statute of 10th of Hen. VII. viz. 13th of Edw. II. 19th of Edw. II. 18th of Hen. VI. 29th of Hen. VI. 32d Hen. VI. 37th Hen. VI. and 8th Edw. IV. And ſince the Statute 10th Hen. VII. of five Parliaments; viz. 28th of Hen. VIII. 33d of Hen. VIII. 28th of Eliz. 11th of Jam. and 10th Car. beſides the Statute of 10th of Hen. VII. itſelf.

; yet, in juſtice to Judge Huſſey, it muſt be allowed, that his Declaration was certainly right with reſpect to the particular caſe then before him, which related to the exportation of goods from Waterford: for, the Iriſh ſubjects themſelves do not deny the juriſdiction of Great-Britain upon the high Seas, nor in matters of external

This binding in external tranſactions, ſeems to be allowed (though unwillingly) by Mr. Molly neux, (a zealous aſſerter of the liberties of Ireland in the Reign of King William.) "They ſeem" (ſays he, ſpeaking of Engliſh Acts of Parliament) at the utmoſt reach, to extend the juriſdiction of the Engliſh Parliament over the ſubjects of Ireland, only in relation to their action, beyond ſeas, out of the Realm of Ireland, as they are the King of England's ſubjects, &c. p. 71.

commerce, though the Engliſh power, even in that reſpect, may ſometimes perhaps have been extended farther than reaſon and equity can fairly warrant. But before Lord Chief Juſtice Huſſy delivered his opinion, this proper diſtinction, concerning the Engliſh Acts binding the Iriſh in external Tranſactions, had been made (in his abſence) by the other Judges in a preceding term

"All the Judges" (but we muſt except Huſſy) were aſſembled in the Exchequer Chamber, and there, with reſpect to the firſt queſtion, it was ſaid, that the lands of Ireland have a Parliament among themſelves, and all kinds of Courts as in England; and, by the ſame Parliament, they make laws and change laws, and are not bound by Statutes (made) in England, becauſe they have not here Knights of Parliament; but this is underſtood of lands and things only to be effected in thoſe lands, but their perſons are ſubject to the King, and, as ſubjects, they are bound to any thing out of that land, that is done out of that land contrary to Statute, like as the inhabitants of Calais, Gaſcoigne, Guicone, &c. while they were ſubjects of the King, and in like manner are obedient under the Admiral of England concerning any thing done upon the High-Seas, and alſo a writ of error of judgement given in Ireland (is cognizable) in the King's Bench here in England.

Anno ſecundo Rich. III. p. 12. Omnes Juſticiarii (but we muſt except Huſſy) aſſociati fuerunt in Camera Scaccarii, et ibi quoad primam queſtionem dicebatur, quod terrae Hiberniae inter ſe habent Parliamentum et omnimodo Curias prout in Anglia, et per idem Parliamentum faciunt leges et mutant leges, et non obligantur per ſtatuta in Anglia, qui non hic babent Milites Parliamenti; ſed hoc intelligitur de terris et rebus in terris ill' tantum efficiendo, ſed perſonae illae ſunt ſubjectae Regis, et tanquam ſubjecti erunt obligati ad aliquam rem extra terram illam faciendam contra Statutum, ſicut habitantes in Caleſia, Gaſcoignie, Guien, &c. dum fuerunt ſubjecti; et ſimiliter obedientes erunt ſub Admirall' Angliae, de re facta ſuper altum mare: et ſimiliter breve de errore de judicio reddito in Hibernia in Banco Regio hic in Anglia, &c.

; which accounts for the remark of the Reporter, that this opinion of Chief Juſtice Huſſy was not much denied by the other Judges, though ſome of them were of a contrary opinion the laſt term in his abſence. But, by the expreſſion, that it was not much denied, it is apparent, that the other Judges did not receive the doctrine of Chief Juſtice Huſſy, entirely and abſolutely, without ſome demur; which could only conſiſt in their adding that due diſtinction before-mentioned: for it plainly appears (notwithſtanding the aſſertion of the Reporter) that they were not, really, of a contrary opinion in the former term, with reſpect to the caſe before them; which related to an external tranſaction, the ſame that, in their former opinion, they declared to be ſubject to the controul of England; and, therefore, there was no reaſon why they ſhould much deny the opinion of Chief Juſtice Huſſy, ſince the particular caſe before them did not require it.

But the like excuſe cannot be made for Sir Edward Coke, who, in Calvin's caſe, ſeems to have adopted the opinion of Chief Juſtice Huſſy, and yet has not conſidered the nature of the caſe on which the ſame was delivered, having declared a ſimilar opinion in an indiſcriminate general ſenſe That albeit Ireland was a diſtinct Dominion, yet the title thereof being by conqueſt, the ſame, by judgement of law, might by expreſs words be bound by Act of Parliament of England. Calvin's Caſe, 7th Rep. p. 444. , without paying the leaſt regard to that juſt diſtinction between the external and internal Government of Ireland, which the other Judges had before ſo clearly laid down and confirmed by an unanſwerable reaſonSee the former note in p. 56. Quia non hic habent Milites Parliamenti. why the Iriſh ſhould not be bound in the latter by any other laws than thoſe to which their own Parliament had aſſented, viz. Quia non hic habent Milites Parliamenti: which Doctrine was agreeable alſo to what had long before been declared by that celebrated conſtitutional Lawyer, the great Judge Forteſcue on Pilkington's

—et auxi la terre de Ireland eſt ſevere del' Roiaume d' Angleterre: car ſi un diſme ou quinzime ſoit grante icy, ceo ne liera ceux d' Ireland meſ que le Roy manderoit m cel' eſtat (for eſtatute) en Ireland ſoubz ſon Grand Seel, ſinon que ils veul' en leur Parliament ceo approver mes s'ils veul allower ceo, donq ſera tenu la et ils ſeront liès par icel'. Year Book 19th Hen. VI. p. 8.

caſe, in the 19th of Hen. VI. which was readily admitted at the ſame time by Judge Portington, and (for any thing that appears to the contrary) agreeable alſo to the opinion of all the other Judges that were then preſent; for, Sir Richard Bolton remarks, that this was not denied by Markham, Yelverton, and Aſcough

The caſe is ſtated by Sir Richard Bolton, Chancellor of Ireland, in his Declaration, &c. printed in Harris's Hibernica, p. 15. as follows: That one John Pilkington brought a ſcire facias againſt one A. to ſhew cauſe, why Letters Patents, whereby the King had granted an office in Ireland to the ſaid A. ſhould not be repealed, whereas, the ſaid John Pilkington had the ſame Office granted him by former Letters Patents granted by the ſame King, to occupy to himſelf or his Deputy. Whereupon the ſaid A. was warned and appeared, and ſaid, 'That the land of Ireland, time beyond the memory of man, hath been a land ſeparated and ſevered from the Realm of England, and ruled and governed by the cuſtoms and laws of the ſame land of Ireland. And that the Lords of the ſame land, which are of the King's Council, have uſed, from time to time in the abſence of the King, to elect a Juſtice, which Juſtice, ſo elected, hath power to pardon and puniſh all felonies, treſpaſſes, &c. and to aſſemble a Parliament; and by the advice of the Lords and Commonalty to make Statutes; and he alledgeth further, that a Parliament was aſſembled, and that it was ordained by the ſaid Parliament, that every man who had any office within the ſaid land, before a certain day, and he puts the day in certain. ſhall occupy the ſaid Office by himſelf, or otherwiſe that he ſhall forfeit his office. And ſheweth further, how the ſaid John Pilkington occupied the ſaid office by a deputy, and that, inſomuch as he came not in proper perſon to reſide upon his office before the day, that his office was void, and that the King, by his Letters Patents, granted the ſaid office, ſo become void, to the ſaid A. and prayed that the ſaid Letters Patents ſhould be effectual, and not repealed.' And upon the plea the ſaid John Pilkington demurred in law. In the argument of which caſe, it was debated by the Judges, Yelverton, Forteſcue, Portington, Markham, and Aſcough, whether the ſaid preſcription were good, or void in law; Yelverton and Portington held the preſcription void; but Forteſine, Markham, and Aſcough, held the preſcription good, and that the Letters Patents made to A. were good and effectual, and ought not to be repeated: and in the argument of this caſe it was agreed, by Forteſcue and Portington, that if a tenth or fifteenth be granted by Parliament in England, that ſhall not bind them in Ireland; although the King ſend the ſame Statute into Ireland under his great ſeal: except they in Ireland will in their Parliament approve it; but if they will approve it, then it ſhall bind in Ireland. And Portington ſaid, that if a tenth be granted in the Parliament of England, that ſhall not bind in Ireland, becauſe they have not any commandment by writ to come to our Parliament; and this was not denied by Markham, Yelverton, or Aſcough. Upon this caſe theſe points following are to be obſerved, Firſt, that the Lords of the Council of Ireland had then power, in the abſence of the King, and vacancy of a Lieutenant or Deputy, to elect a Juſtice. and that is plainly proved by the preamble of the Statutes of 33d of Hen. VIII. chap. 2. in Ireland. The words are theſe; 'For as much as continually ſithens the conqueſt of this Realm of Ireland, it hath been uſed in this ſame Realm of Ireland, that at every ſuch time, as it hath chaunced the ſame Realm to be deſtitute of a Lieutenant, Deputy, Juſtice, or other head Governour, by death, ſurrender, or departure out of the ſaid Realm, or otherwiſe, the Council of this Realm of Ireland, for the time being have uſed, by the laws and uſages of the ſame, to aſſemble themſelves together to chooſe and elect a Juſtice, to be Ruler and Governor of this Realm, till the King's Highneſs had deputed and ordained a Lieutenant, Deputy, or other Governor for the ſame Realm; which Juſtice, ſo being elected, was, and hath been, always by the ancient laws and cuſtoms of this ſaid Realm of Ireland, authoriſed to do and exerciſe the ſaid roume of Deputy there, for the good rule and governance, and leading of the King's ſubjects within the ſaid Realm of Ireland, and in miniſtration of Juſtice, with divers other authorities, pre-eminences, and juriſdictions there; which uſage, election, and authority of the ſaid Juſtice, hath been many times ratified and confirmed by divers Statutes in this Realm provided and made. But this order of election of a Juſtice is now, by the laid Statute of 33d of Hen. VIII. altered; as by the ſaid Statute more at large may appear.

Sir John Forteſcue had declared, that, if a tenth or fifteenth were granted here, this ſhould not bind thoſe of Ireland, even though the King ſhould ſend the ſame Statute into Ireland under his great ſeal, except they will in their Parliament approve it; but, if they will allow it, (i. e.) then it ſhall be held there, and they ſhall be bound by it. And to this point Judge Portington expreſsly declared his aſſent — et auxi quant a ceo que Forteſcue ad dit, que ſi un Diſme ſoit grante en le Parliament icy, ceo ne liera ceux d' Ireland; Jeo veux bien pur ceo que ils n'ont commandment ove nous per breve de venir al' Parliament. Year Book, 19th Hen. VI. p. 8. , "Jeo veux bien" (ſays he) and then aſſigns the inconteſtible reaſon, "pur ceo," becauſe they (the Iriſh ſubjects) have no ſummons with us to come to Parliament.

But Lord Coke has unfortunately neglected to weigh the importance of this juſt Reaſon, and conſequently has been led to miſconſtrue the doctrine to which it has at different times been applied by the Judges; for, in Calvin's Caſe, (7th Rep. p. 447.) he cites the opinion of the Judges in 2d Rich. III. beforementioned, viz. That Ireland hath a Parliament, and they make laws, and our Statutes do not bind them: and he cites alſo their reaſon, viz. becauſe they do not ſend Knights to (our) Parliament; but he adds, in a parentheſis, that this is to be underſtood, unleſs they be eſpecially named

And 2d Rich. III. 12. (ſays he) Hibernia habet Parliamentum, et faciunt leges, et noſtra Statuta non ligant eos, quia non mittunt Milites ad Parliamentum, (which is to be underſtood unleſs they be eſpecially named) ſed perſonae eorum ſunt ſubjecti Regis ſicut habitantes in Caleſia, Gaſconia, et Guyan. &c. Calvin's Caſe, 7 Rep. p. 447.

. Thus he is ſo far from perceiving the weight of the Reaſon aſſigned by the former Judges, that he has ventured to ſet it aſide (as if it had no meaning at all) by the inſertion of an arbitrary parentheſis in the middle of the ſentence, without aſſigning a ſtronger Reaſon, or even any Reaſon at all for his authority; and therefore, we are certainly bound to prefer the Declaration of the other Judges, who founded their opinion on a clear legal Reaſon, that has never yet been diſproved; for the REASON of the Law is the Life of the Law "Ratio Legis eſt anima Legis." Jenk. Cent. p. 45. .

The naming or not naming Ireland, in our Engliſh Acts, cannot in the leaſt affect the argument of the former Judges; for, if it holds good to ſecure the Iriſh ſubjects from being bound, when not "eſpecially named," (which is allowed even by Sir Edward Coke himſelf,) it certainly is equally effectual when they are named; or rather, (I ought to ſay,) the Reaſon is much more forcible in the latter caſe, which apparently enhances the propriety and importance of it; becauſe, when the buſineſs relating to Ireland is debated, it is manifeſt that the Iriſh ſubjects ſtand moſt in need of a due repreſentation, which cannot therefore be denied them at ſuch a time, without the moſt flagrant violation of Juſtice and natunal Equity!

But, leſt any of my Readers ſhould ſtill retain any doubt concerning the groundleſs Doctrine broached by Sir Edward Coke, that Engliſh Statutes bind in Ireland when "eſpecially named," I have yet another Authority to add, which muſt needs turn the ſcale, being no leſs than the teſtimony even of Sir Edward Coke himſelf upon this very point! Let his own words judge him.

He informs us, in his 4th Inſt. cap. 76. p. 350. that ſometimes the King of England called his Nobles of Ireland to come to his Parliament of England, &c. and, after reciting the form of the Writ uſed on ſuch occaſions 10 Octobris Rex affectans pacificum Statum terrae Hiberniae, mandavit Richardo de Burgo Com. Ulton. et aliis nobilibus terrae predictae, quod ſint ad Parliamentum ſuum quod ſummoneri fecit apud Weſtm. in octabus ſancti Hillarii proxad tractand. ibid. cum proceribus, &c. regni ſui ſuper Statu terrae praedictae. Rot. Parl. 8. E. 2. m. 31. , he adds—"an excellent Preſident"—(ſays he) to be followed whenſoever any, Act of Parliament ſhall be made in England concerning the Statute of Ireland, &c.

But, if this be "an excellent Preſident," the ſame ſpirit of juſtice, which inclines us to approve it as ſuch, muſt needs force us to condemn the oppoſite notion, concerning mere Engliſh Statutes hinding Ireland, when "eſpecially named:" and conſequently it muſt appear, that Lord Coke was not ſufficiently upon his guard when he advanced this unjuſt Doctrine. And yet, alas! he has repeated the ſame in this very page, immediately after the Information, before quoted, concerning the Nobles of Ireland being ſummoned to the Parliament of England; for he adds,—"and by ſpecial words" (ſays he) the Parliament of England may bind the Subjects of Ireland; &c. but, it lucklly happens, that he is leſs reſerved in this place than in the other paſſage already is aſſerted; for here he has attempted to juſtify his opinion by an example, which, out of reſpect to ſo great an author, we may, of courſe, preſume to be the very beſt that could have been produced for that purpoſe; eſpecially ſince he mentions it as one example for many; and yet, happily for the truth, this "one example for many" proves nothing ſo much (when duly conſidered) as the direct contrary to his aſſertion, about binding Ireland by ſpecial words, &c. for it amounts to an implied acknowledgment, upon public record, of the injuſtice of pretending to "bind the Subjects of Ireland" without their expreſs conſent; being, in reality, a copy of the King's Writ (beforementioned) to ſummon the Nobles of Ireland to the Parliament at Weſtminſter, there to treat with the Nobles, &c. of his Kingdom upon the State of the ſaid Land, i. e. Ireland. Thus it is plain that the Engliſh Legiſlature, even ſo early as in the Reign of Edward II. (by whom the Writ was iſſued,) did not eſteem it equitable to debate "upon the State of the ſaid Land,"— ("ſuper ſtatu terrae praedictae,") without ſome legiſlative repreſentation thereof. But, beſides this one example for all, Sir Edward Coke has given us alſo, in the ſame page, a memorandum, from the Parliament Rolls of the 35th of Edw. III,

Rot. Parl. 35. E. 3. irrot. ſic. Anno 35, E. 3. de concilio fummonit. pro terr. habentibus in Hibernia. Maria Comitiſſa Norf. ad mittendum fide dignos ad colloquium. Aelianora Com. Orm. ad mittendum fide dignos ad colloquium. Jana la Deſpencer, ad mittendum fide dignos ad colloquium. Philippa Com. de la Marche, ad mittendum fide dignos ad colloquium. Johanna Fitzwater, ad mittendum fide dignos ad colloquium. Agnes Com. Penbroke, ad mittendum fide dignos ad colloquium. Margaretta de Roos, ad mittendum fide dignos ad colloquium. Matildis Com. Oxoniae, ad mittendum fide dignos ad colloquium. Catherina Com. Athol. ad mittendum fide dignos ad colloquium.

of Writs being iſſued even to Peereſſes, who, in their own right, held lands in Ireland, and of theſe no leſs than nine, to ſummon them to ſend Repreſentatives, or proper perſons, to confer with the Parliament; ad mittendum fide dignos ad colloquium. And conſequently if Lord Coke's Doctrine (for which he has cited theſe examples) had, in thoſe early times, been current, viz. that by ſpecial words the Parliament of England may bind the Subjects of Ireland, it is apparent, that the ſame could not have been underſtood in any other light than that of including a due repreſentation of the Iriſh Parliament within the Parliament of England; which the examples themſelves ſufficiently demonſtrate

In the ſame page likewiſe, (4th Inſt. p. 350.) Lord Coke has produced ſtill more evidence to prove the Parliamentary Rights of the Iriſh Subjects; for he cites the Parliament rolls of 10th of Edw. II.— De Parliamentis ſingulis annis in Hibernia tenendis, et de legibus, et conſuetudinibus ibidem emendandis; and he remarks thereupon,—"Hereby it appeareth," (ſays he) that there were Parliaments holden in Ireland before this time, and order taken at this Parliament, (ſays he,) that they ſhould be holden every year, and the like Acts were made in England, in 4th E. III. and 36th E. III. for Parliaments to be holden in England; ſo that regular annual Parliaments were eſtabliſhed in Ireland BEFORE they were in England!

: And that this was really the caſe, is clearly proved by ſome other Engliſh records, cited by Mr. Mollyneux, in his Caſe of Ireland, pp. 73, and 74. whereby it appears, that even Knights of the Shires, Citizens, and Burgeſſes, were elected in the Shires, Cities, and Boroughs, of Ireland, to ſerve in Parliament in England

"Formerly" (ſays Mr. Mollyneux) "when Ireland was but thinly peopled, and the Engliſh laws not fully current in all parts of the Kingdom, it is probable, that then they could not frequently aſſemble with conveniency or ſafety to make laws in their own Parliament at home; and therefore, during the heats of rebellions, or confuſion of the times, they were forced to enact laws in England. But then this was always by their proper Repreſentatives: For we find, that in the Reign of Edward the Third, and by what foregoes, it is plain it was ſo in Edward the Firſt's time; Knights of the Shire, Citizens, and Burgeſſes, were elected in the Shires, Cities, and Boroughs of Ireland, to ſerve in Parliament in England; and have ſo ſerved accordingly. For, amongſt the records of the Tower of London, Roe. Clauſ. 50. Edward the Third, Parl. 2. Memb. 23. we find a writ from the King at Weſtminſter, directed to James Butler, Lord Juſtice of Ireland, and to R. Archbiſhop of Dublin, his Chancellor, requiring them to iſſue writs, under the great Seal of Ireland, to the ſeveral Counties, Cities, and Boroughs, for ſatisfying the expences of the men of that land, who laſt came over to ſerve in Parliament in England. And, in another roll, the 50th of Edw. III. Membr. 19. on complaint to the King by John Draper, who was choſen Burgeſs of Cork by writ, and ſerved in the Parliament of England, and yet was denied his expences by ſome of the Citizens, care was taken to reimburſe him.

If, from theſe laſt mentioned records, it be concluded that the Parliament of England may bind Ireland; it muſt alſo be allowed, that the people of Ireland ought to have their Repreſentatives in the Parliament of England. And this, I believe, we ſhould be willing enough to embrace; but this is in happineſs we can hardly hope for.

This ſending of Repreſentatives out of Ireland to the Parliament in England, on ſome occaſions, was found in proceſs of time to be very troubleſome and inconvenient; and this we may preſume was the reaſon that, afterwards, when times were more ſettled, we fell again into our old track and regular courſe of Parliaments in our own country; and hereupon the laws afore-noted, page 64, were enacted, eſtabliſhing, that no law made in the Parliament of England ſhould be of force in Ireland, till it was allowed and publiſhed in Parliament here.

; which ancient privilege of the Iriſh Commoned has either been unknown, or alſo overlooked and forgot by Lord Coke; and indeed it is not probable that the Iriſh Parliament was ever ſummoned to England regularly, or as a matter of courſe, to meet the Engliſh Parliament, but only on extraordinary occaſions, wherein the Subjects of Ireland were particularly concerned, and could not, we may preſume, be "ſpecially named" and bound, (that is conſiſtently with natural equity and their own juſt rights) without their expreſs aſſent: for it is apparent that regular Parliaments were held in Ireland. both BEFORE, ſince, and even during the Reigns of thoſe very Princes who iſſued writs to ſummon them to England; which latter, therefore, can only be attributed to ſome extraordinary or peculiar circumſtances, (out of common courſe) which rendered it neceſſary.

In addition to the clear Precedents before cited, it may not perhaps be improper to take notice of a circumſtance quoted by the Honourable Mr. Juſtice Barrington, from Petyt, MSS. Vol. XXVII. p. 294. for though it is not a Precedent exactly to the point in queſtion, (i. e. the ſending Repreſentatives from Ireland to the Engliſh Parliament,) yet it tends to corroborate the ſame equitable Doctrine concerning the neceſſity of Repreſentation in general, which ought to be the baſis of all determinations either in the Privy Council, (to which the example particularly relates,) or elſewhere. There is a writ (ſays he) of Edward III. in the 50th Year of his Reign, to oblige the Inhabitants of Cork to pay the expences of John Droup, who is ſtated to have been choſen by the Community to attend the King's Privy Council in England "Obſervations on the more ancient Statutes," &c. p. 145.. The Buſineſs of his attendance, however, does not appear; but on whatever account he might attend the Privy Council, he was probably the ſame perſon that is mentioned in the record before cited from Mr. Mollyneux, by the name of John Draper, who was choſen Burgeſs of Cork by Writ, and ſerved in the Parliament of England; for, as the other circumſtances correſpond, both with reſpect to the place from whence he came, and the year of his being ſent, it is natural to conclude, that the ſmall diſagreement in the name may have been occaſioned by ſome accidental miſtake, viz. John Droup for John Draper, or vice verſa; and he might ſerve the Inhabitants of Cork in the double capacity of Repreſentative in Parliament, and Agent for them to the Privy Council; or perhaps his ſummons and attendance, even at the King's Privy Council, might have been in his parliamentary capacity; for if a due Repreſentation from Ireland was to attend the King here in his Privy Council, ſuch an Aſſembly might, without danger, I apprehend, be allowed all the powers of an effectual Legiſlative to bind Ireland, provided the reſpective branches of Iriſh Repreſentation be preſerved entire and diſtinct; for the Engliſh Privy Council could have no legal voice in ſuch a caſe, except that of adviſing the aſſent or diſſent of the Sovereign; and yet, whenever it was neceſſary to call a diſtinct Iriſh Parliament in England, it is not improbable, but that they might be ſummoned to meet the King in his Privy Council by way, of diſtinguiſhing their ſeparate Aſſembly from the joint-meeting of the Engliſh and Iriſh Parliaments before-mentioned. And that ſuch diſtinct Iriſh Parliaments have ſometimes been held in England appears by a record cited by Mr. Mollyneux There have been other Statutes or Ordinances, made in England for Ireland, which may reaſonably be of force here, becauſe they were made and aſſented to by our own Repreſentatives. Thus we find in the White Book of the Exchequer in Dublin, in the 9th Year of Edward the Firſt, a writ ſent to his Chancellor of Ireland, wherein he mentions Quaedam Statuta per nos de Aſſenſa Prelatorum Comitum Baronum & Communitates Regni noſtri Hibexniae, •• per upud Lincoln & quaedam alia Statuta poſtmodum papud Eborum facta. Theſe we may ſuppoſe were either Statutes made at the requeſt of the States of Ireland, to explain to them the Common Law of England: or if they were introductive of new laws, yet they might well be of force in Ireland, being enacted by the aſſent of our own Repreſentatives, the Lords Spiritual and Temporal, and Commons of Ireland; as the words afore-mentioned do ſhew: and, indeed, theſe are inſtances ſo far from making againſt our claim, that I think nothing can be more plainly for us; for it manifeſtly ſhews, (that the King and Parliament of England would not enact laws, to bind Ireland, without the concurrence of the Repreſentatives of this Kingdom. , wherein mention is made of Statutes made at Lincoln and at York in the 9th of Edw. I. by the expreſs aſſent of the Iriſh Parliament in all its branches of Legiſlature, (viz. per nos de aſſenſu Prelatorum, Comitorum et Communitates Regni noſtri Hibernioe) without the leaſt mention of the Engliſh Parliament. Thus it appears probable, that the Iriſh have been repreſented in England, as well in ſeparate as in joint Parliaments; and, upon ſuch equitable terms of Repreſentation in England, I preſume, no Iriſh Patriot will object to the binding of Engliſh Statutes

— "Add hereunto," (ſays Sir William Petty in his Political Survey of Ireland, p. 31.) that if both Kingdoms were under one Legiſlative Power and Parliament, the Members whereof ſhould be proportionable in power and wealth of each Nation, there would be no danger ſuch a Parliament ſhould do any thing to the prejudice of the Engliſh intereſt in Ireland; nor could the Iriſh ever complain of partiality when they ſhall be freely and proportionably repreſented in all Legiſlatures. The ſame author has alſo made a very ſtriking remark in p. 97, concerning the neceſſity of maintaining the independence of the Legiſlative Power, whether we apply the ſame to Ireland, or to any other part of the Britiſh Empire; for why ſhould men (ſays he) endeavour to get eſtates, where the Legiſlative Power is not agreed upon, and where tricks and words deſtroy natural Rights and Property?

whether Ireland be "eſpecially named" or not; becauſe the juſt reaſon of objection, before cited from the Judges in the 19th of Henry VI. and 2d Richard III. no longer ſubſiſts when a due Repreſentation is allowed.

How much later than the Reign of Edw. III. this practice was continued, of occaſionally ſummoning the Iriſh Parliament into England, does not appear; though we may be certain that it did not continue ſo late as the Reign of Hen. VI. becauſe the great Forteſcue and the other Judges, his cotemporaries, could not have declared (as has already been ſhewn) that a tenth or fifteenth, granted here, ſhould not bind thoſe of Ireland, if the practice of ſending Repreſentatives from thence had continued to that time: nevertheleſs, the proofs already produced are amply ſufficient to confute the obſervation of Judge Jenkins in his 4th Century, p. 164, viz. that the Statutes of England, which expreſsly name Ireland, bind them and their Lands and Goods. As the Statute of York (ſays he) made 12th E. II. and the 13th E. I. de Mercatoribus, and others: For, as I have produced ſufficient examples of the Iriſh Parliament being ſummoned to England in both the Reigns which he has mentioned, theſe Statutes cited by him can afford no teſtimony of what he ſuppoſes, becauſe the Iriſh might probably have been repreſented in thoſe very Parliaments; for which opinion (I have already ſhewn) there is ſome evidence, and I am not apprehenſive that any evidence at all can be produced to the contrary.

The ſame reply holds good alſo, againſt the moſt material examples cited in Serjeant Mayart's anſwer to Sir Richard Bolton's Declaration

The learned Editor of theſe two Tracts, (Mr. Harris,) who has publiſhed them in his Hibernica, (printed at Dublin in 1770,) ſuppoſes, that Sir Richard Bolton was not the author of this Declaration, and informs us, in his Preface, that he is inclined rather to give the honour of the performance to Patrick Darcey, Eſq an eminent Lawyer and an active Member of the Houſe of Commons in the Parliament aſſembled at Dublin in 1640, who was the author of a ſimilar argument delivered by him at a conference with a Committee of the Iriſh Lords in 1641, (printed in 1643.) "The conformity" (ſays Mr. Harris) between what is alledged in the Declaration, and in Darcy's Arguments, inclines me to think him the author of that paper. But a conformity in ſubſtance between two authors, upon one and the ſame national queſtion, is very far from affording ſo ſubſtantied a proof of the real author as the name of Sir Richard Bolton upon one of the manuſcripts: Probably the impeachment of Sir Richard Bolton (in the ſame year) of High-Treaſon, for betraying (in his capacity of Chancellor of Ireland) the Conſtitution of that country

Viz For having traiterouſly contrived, introduced, and exerciſed an arbitrary and tyrannical Government, againſt Law, throughout this Kingdom, (Ireland,) by the countenance, and aſſiſ ••••• e, of Thomas Earl of Strafford, then Chriſt Governor of this Kingdom. See the 1ſt Article of Impeachment againſt Sir Richard Bolton and others, with the Speech of Mr. Audley Mervi on that occaſion, taken from Nalſop's Collection, of Papers, and raprinted at Dublin in 1764, at the end of Darcy's Argument.

, might be another reaſon for Mr. Harris's ſuppoſition: but this very contrary behaviour, with which Sir Richard Bolton was charged, does not appear to have been ſo much the effect of his private opinion, as of him political time-ſerving, or yielding, with his brethren in Adminiſtration, to the arbitrary notions of Lord Strafford, the (then) Lord Lieutenant of Ireland: or perhaps the dangerous increaſing power of the papiſts at that time might occaſion his thus yielding to meaſures which were ſo diametrically oppoſite to his own juſt principles; though indeed no danger whatever can juſtify ſuch conduct, ſince "honeſty is always" (moſt certainly) "the beſt policy." Nevertheleſs, not only Serjeant Mayart's anſwer acknowledges Sir Richard as the author of the Declaration; but Mr. Mollyneux in p. 48, and 49, cites a marginal note of Sir Richard's, (when he was Lord Chief Baron of the Exchequer in Ireland,) which he had affixed in his Edition of the Iriſh Statutes, Stat. 10 Henry VII. c. 22. to the following purport; reſembling the ſubſtance of the Declaration, attributed to Sir Rich. Bolton, much more than the argument of Mr. Darcy, viz. That in the 13th of Edward the Second, by Parliament in this Realm of Ireland, the Statutes of Merton, made the 20th of Henry the Second, and the Statutes of Malbridge, made the 52d of Henry the Third; the Statute of Weſtminſter the firſt, made the 3d of Edward the Firſt; the Statute of Glouceſter, made the 6th of Edward the Firſt; and the Statute of Weſtminſter the ſecond, made the 13th of Edward the Firſt, were all confirmed in this Kingdom, (Ireland;) and all other Statutes which were of force in England were referred to be examined in the next Parliament; and ſo many as were then allowed and publiſhed, to ſtand likewiſe for Laws in this Kingdom. And in the 10th of Henry the Fourth, it was enacted in this Kingdom of Ireland, That the Statutes made in England ſhould not be of force in this Kingdom, unleſs they were allowed and publiſhed in this Kingdom by Parliament. And the like Statute was made again in the 29th of Henry the Sixth. Theſe Statutes are not to be found in the Rolls, nor any Parliament Roll of that time: but he (Sir Richard Bolton) had ſeen the ſame exemplified under the great Seal, and the exemplification remaineth in the Treaſury of the city of Waterford. Mollyneux's Caſe of Ireland, pp. 48 & 49.

, ſetting forth how, and by what means the Laws and Statutes of England from time to time came to be of force in Ireland; and it is undeniable, that the Iriſh Parliament have in general thought it neceſſary to examine, and to authenticate by the expreſs aſſent of their own aſſemblies, ſuch Engliſh Statutes as they judged proper to be admitted as Law within their own Iſland; of which Sir Richard Bolton has produced a great variety of examples

But ſuch Statutes, as have been made in England ſince the 11th of King John, and are introductory and poſitive, making new Laws, or any ways altering, adding unto, or diminiſhing the ancient Common Laws, have not been binding or any ways of force in Ireland, until ſuch time as they have been enacted, allowed, and approved of, by Act of Parliament in Ireland; as may appear by the judgements of nine Parliaments holden there, viz. in the 13th of Edward II. in a Parliament in Ireland, the Statutes of Merton and Marlebridge, made in the time of Henry III. and the Statutes of Weſtminſter 1ſt, and of Weſtminſter 2d, and the Statute of Glouceſter, made in the time of Edward I. were confirmed and approved to be of force in Ireland; and all other Statutes, which were of force in England, were then referred to be examined in the next Parliament, and ſo many of them, as ſhould be then allowed, and publiſhed, to be accepted for Laws in Ireland. And afterwards, in a Parliament holden in Ireland in 19th of Edward II. it was enacted that the Statutes made in England ſhould not be of force in the Kingdom of Ireland, unleſs they were allowed and publiſhed in that Kingdom by Parliament; and the like Statute was made again in 29th of Henry VI.—But theſe Statutes are not to be found in theſe parliament rolls, nor any parliament rolls at that time, but the ſame are exemplified under the great Seal, and the exemplifications were remaining in the Treaſury of the city of Waterford. And it is moſt certain, that not only theſe parliament rolls, but alſo many other rolls and records miſcarried in thoſe troubleſome and diſtempered times, which have been in Ireland: For in all the times of Edw. III.—Rich. II.—Hen. IV.—and Hen. V. which is almoſt an hundred years, there is not any parliament roll to be found; and yet it is moſt certain, that divers Parliaments were holden in thoſe times. Moreover in 28th of Edw. I.—5th of Edw. III.—14th of Edw. III.—25th of Edw. III. —34th of Edw. III.—and 7th of Rich. II. divers good laws were made in England by ſeveral Acts of Parliament againſt the extortions and oppreſſions of Purveyors; which laws were never received, nor put into execution in Ireland, untill the 18th of Hen. VI. chap. 1. that it was enacted, agreed, and eſtabliſhed by Parliament in Ireland, that all Statutes made againſt Purveyors within the Realm of England ſhould be holden and kept in all points, and put in execution in Ireland. — Afterwards in the time of Edward IV. a doubt was conceived, whether the Statute made in England in 6th of Rich. II. chap, 5. concerning Rape, ought to be of force in Ireland, without a confirmation thereof by Parliament: for the clearing of which ambiguity and doubt, in 8th Edward IV. chap. 1. in Ireland, it was enacted, by authority of Parliament, that the ſaid Statute of 6th of Richard II. be adjudged and proved in force and ſtrength; and that the Statute may be of force in this land of Ireland from the 6th day of March then laſt paſt, and from thenceforth the ſaid Act, and all other Statutes and Acts made by the authority of the ſaid Parliament, within the Realm of England, be ratified and confirmed, and adjudged by the authority of Parliament, in their force and ſtrength from the ſaid 6th Day of March."—So as until the ſaid Statute of 8th Edw. IV.—the ſaid Statute of 6th Rich. II. was not wholly of force in Ireland; and that may appear by the words of the ſaid Statute of the 8th of Edward IV.—For by the words thereof the ſaid Statute of 6th Rich. II. was to be of force from the 6th of March then laſt paſt, whereas, the ſaid Statute of 6th Rich. II. had been but a declaration or explanation of the Stature of Weſtminſter 2. chap. 34. it would have been of force at all times ſince the making of the Statute of Weſtminſter 2d. which was in 13th Edw. I.—But afterwards, 10th Hen. VII. c. 22. it was enacted in a Parliament in Ireland, (this is one of the Acts commonly called Poining's Acts,) that all Statutes then lately made within the ſaid Realm of England, concerning or belonging to the common or public weale of the ſame, from thenceforth ſhould be deemed good and effectual in the law, and over that accepted, uſed, and executed within the land of Ireland at all times requiſite, according to the tenor and effect of the ſame; and over that by the authority aforeſaid, that they, and every of them, be authoriſed, proved, and confirmed in the ſaid land of Ireland.

By all which Statutes, made from time to time in Ireland, it plainly appeareth, that all Statutes made in England before 10th Hen. VII. concerning or belonging to the public and commonwealth of England, are made to be of force, and to become laws in Ireland. — In 21ſt Hen. VIII. chap. 7. an Act was made in England, that makes it felony in a ſervant that runneth away with the goods of his maſter or miſtreſs; and this Act was not received in Ireland until the ſame was enacted by a Parliament holden in Ireland in 33d Hen. VIII. Seſſ. 1. chap. 5.—In 21ſt Hen. VIII. chap. 19.—There was a law made in England, that all Lords might diſtrain upon the lands of them holden for their rents and ſervices, and to make their avowries, not naming the tenant, but upon the lands: but this law was not received in Ireland until it was enacted there in 33d Hen. VIII. Seſſ. 1. chap. 7.—An Act was made in England in Anno 31. Hen. VIII. chap. 1. that joint tenants, and tenants in common, ſhould be compelled to make partition; which Act was not received in Ireland until it was enacted there in 33d Hen. VIII. Seſſ. 1. chap. 10.—In 27th Hen. VIII. chap. 10. the Statute of Uſes was made in England, for transferring of Uſes into poſſeſſion; which Statute was never received, nor of force in Ireland, till the ſame was enacted in Ireland, 10th Car. 1. chap. 1.—So likewiſe, 32d Hen. VIII. chap. 1. a Statute was enacted in England, whereby it is directed, how lands and tenements may be diſpoſed by will, and concerning wardſhip, and primer ſeizins; which Statute was never received, nor of force in Ireland, until it was enacted by parliament in Ireland, in 10th Car. I. chap. 2.—In Anno 1ſt Eliz. chap. 5. there was an Act made in England for the uniformity of the Common-Prayer, and Adminiſtration of the Sacraments; which Act was not received in Ireland, until the ſame was confirmed and eſtabliſhed by Parliament in Anno 2d Eliz. c. 2.—In Anno 5th Eliz. c. 9. there was an Act of Parliament made in England for the puniſhment of wilful perjury; which Act was not of force in Ireland until the ſame was enacted by a Parliament in Ireland, in 28th Eliz. chap. 1.—Another Act was made in England in Anno 3d Eliz. chap. 12. for the puniſhment of witchcraft and ſorcery, and another Act in the ſame year, chap. 14. for the puniſhment of forgery; which Acts were not of force in Ireland until the ſame were enacted by Parliament there in 28th Eliz. chap. 2, 3.—In 28th Hen. VIII. chap. 15. there was an Act made in England for the puniſhment of piracy; which Act was not of force in Ireland until the ſame was enacted in Ireland in 12th of James, chap. 2.—In 27th of Eliz. chap. 4. an Act was made in England againſt fraudulent conveyances, which Act was not of force, nor received in Ireland, until the ſame was enacted in Ireland, 10th Car. I. chap. 3.— Beſides many other Acts made in the ſeveral reigns of Henry VIII.—Edward VI.—Queen Elizabeth,— King James,—and the King's Majeſty who now is. —In 24th Hen. VIII. chap. 12. &c. an Act was made in England concerning appeals made to Rome, which Act doth by expreſs words extend to all his Majeſty's dominions; yet the ſame was not received, nor of force in Ireland, until it was enacted by Act of Parliament there in 28th Hen. VIII. chap. 6.—Alſo the Statute of 28th Hen. VIII. chap. 8. made in England concerning the firſt-fruits of the Clergy, extended by expreſs words to any of the King's dominions; yet the ſame was not received, or of force in Ireland, until it was enacted there by Parliament in 28th Hen. VIII. chap. 8.—Likewiſe the Act of faculties made in England 25th Hen. VIII. chap. 21. extended by expreſs words to all the King's dominions; yet the ſame was not received, or of force, in Ireland, until it was enacted by Parliament in Ireland, 28th Henry VIII. chap. 19.

, ſome general, and ſome particular, made at different periods of time, from the 13th of Edward II. to the Reign of King Charles I. the time when he wrote, and of theſe examples not leſs in number than eighteen, which ſurely are ſufficient to prove the uniform ſenſe of the Iriſh Parliament upon this point in every age ſince they received the Engliſh Law.

Of the general examples which he has cited, that in the 10th of Hen. VII. (one of Poining's Acts) whereby all the Engliſh Statutes then in force were adopted by the Iriſh, is the moſt remarkable; and it is neceſſary to take particular notice of this Act, becauſe the effect of it is frequently miſunderſtood; for ſome have ſuppoſed, that hereby all the Statutes, made in the Parliament of England concerning the public, ſhould be obſerved in Ireland, without obſerving any farther diſtinction

In this indiſcriminate manner Monſieur Rapin has expreſſed himſelf, and has thereby given a wrong Idea of the Iriſh Legiſlature to ſuch of his readers as do not care for the trouble of ſecking better information; for, in ſpeaking of the two Statutes, commonly called Poining's Acts, (after having mentioned that Act relating to the King's permiſſion for aſſembling the Parliament,) he adds, Un autre portoit que tous les Actes faits dans le Parliament d'Angleterre, concernant le Public, ſeroient obſervez on Irlande. Ces deux Statuts font encore en force aujourdui. Tome 4. p. 469.

; as if they thought the Statute capable of including, not only all the Engliſh Acts then made, but, likewiſe, all ſuch as ſhould be ordained in future: and, if this had really been the caſe, it would have been in vain to have contended for the Liberties of Ireland; but the Act itſelf is not capable of ſuch a conſtruction, notwithſtanding that ſome have thought it doubtfully worded. The tenor of it is recited by Lord Coke, in his 4th inſtit. p. 351. as follows: That all Statutes, late made within the Realm of England, concerning or belonging to the common or public weal of the ſame, from henceforth be deemed good and effectual in the Law, and over that be accepted, uſed, and executed, within this land of Ireland, in all points, &c. And though the word late was afterwards deemed a doubtful expreſſion, with reſpect to the extent of its effect, yet it ſufficiently reſtrains the Act to the introduction of ſuch Engliſh Statutes only as were of prior date; which effect is confirmed alſo by a reſolution of the Judges, in the 10th of James, cited by Lord Coke in the ſame page And, Hil. 10. Jacobi Regis, it was reſolved, by the two Chief Juſtices and Chief Baron, that this word, (late,) in the beginning of this act, had the ſenſe of (before), ſo that this Act extended to Magna Carta, and to all Acts of Parliament made in England before this Act of 10. H. 7. But it is to be obſerved, that ſuch Acts of Parliament as have been made in England ſince 10. H. 7. wherein Ireland is not particularly named or generally included, extend not thereunto; for that, albeit it be governed by the ſame law, yet is it a diſtinct Realm or Kingdome, and (as hath been ſaid) hath Parliaments there. 4. Inſt. p. 351. ; and he has likewiſe ſtated the true effect of that Act in his iſt Inſtitute, 141 b. Viz.

By an Act of Parliament (called Poining's Law), holden in Ireland (ſays he) in the 10th yeare of Henry the 7th, it is enacted, That all Statutes, made in this Realme of England BEFORE THAT TIME, ſhould be of force, and be put in uſe, within the Realme of Ireland, &c.

This Act of Poining's, therefore, ſufficiently proves what Sir Richard Bolton intended by citing it, viz. that the Iriſh did not eſteem the Engliſh Laws binding in that Kingdom until allowed by the Authority of their own Parliament, otherwiſe the Act itſelf had been nugatory, as alſo the other Iriſh Acts which he has cited for the ſame purpoſe; in ſome of which, it ſeems, the Parliament itſelf expreſſly aſſerted the Doctrine for which he contends; as in that of the 19th of Edw. II. wherein it was enacted, That the Statutes, made in England, SHOULD NOT BE OF FORCE in the Kingdom of Ireland, unleſs they were allowed and publiſhed in that Kingdom by Parliament. See Sir Richard Bolton's Declarations, &c. in Harris's Hibernica, p. 15. Sir Richard Bolton alſo informs us, that a like Statute was made again in the 29th of Henry VI. and therefore, notwithſtanding that Serjeant Mayart has taken great pains, and filled many pages with citations of precedents from old Records of Law Caſes, Writs, &c. (in order to prove that Engliſh Acts of Parliament have been referred to, and allowed in judicial Proceedings, before the ſame were confirmed in Ireland,) yet all his labour has been beſtowed in vain; for (beſides that he ought firſt to have proved the Acts in queſtion to have been made by the Engliſh Parliament alone, without any ſuch repreſentation of the Iriſh Parliament jointly therewith, as I have already ſhewn to have been frequently practiſed in thoſe early days) let it be alſo remarked, that, though we ſhould allow that the Iriſh Courts of Juſtice might, perhaps, in ſome particular caſes of difference between individuals, but of indifference to the general Liberties of Ireland, have followed the directions of ſome mere Engliſh Acts of Parliament, as eſteeming them wholeſome regulations of Juſtice, proper to be adopted for the determination of the Caſes before them, yet the Confirmation of ſuch Acts afterwards, at different periods, clearly proves the irregularity of ſuch premature proceedings in the Courts, and that the higheſt Court of that Kingdom, the Court of Parliament, did not eſteem the Engliſh Acts of ſufficient legal Authority till confirmed by themſelves; for, otherwiſe, the Confirmation would have been unneceſſary, ſince the Acts (if Serjeant Mayart's examples are admitted) were already received into uſe; and, therefore, all ſuch Court-Precedents, as are cited by the learned Serjeant, are clearly Precedents of Irregularities and not of Law; ſo that they are not intitled to any conſideration at all; eſpecially as the Iriſh Legiſlature itſelf (which has certainly a better right to determine what ſhall be eſteemed Law in Ireland than any of the inferior Courts) has poſitively declared, by the expreſs Acts of the 19th of Edward II. and the 29th of Henry VI. before cited, that Engliſh Statutes ſhall not be of force in Ireland, unleſs allowed by the Iriſh Parliament! And agreeable to this is the Declaration of the Iriſh Houſe of Commons in 1641, Article the firſt: That the Subjects of this his Majeſty's Kingdom of Ireland are a free people, and to be governed only according to the common Law of England, and Statutes made and eſtabliſhed by Parliament in this Kingdome of Ireland, and according to the lawful Cuſtomes uſed in the ſame. p. 133.

Now, though the Conviction by theſe weighty Authorities will probably deſtroy the credit of Serjeant Mayart, as a writer, in the opinion of every honeſt Iriſhman, yet the Iriſh are more obliged to this Author than he himſelf, perhaps, intended they ſhould be; for he clearly proves that a Charter of Liberties

For the only miſtake of Lord Coke is, that he conceived (ſays he) that Magna Charta was not of force in Ireland 'till the 10th of Hen. 7. which is only a miſtake of a matter of fact: for in truth we find (continues the Serjeant) that ſtatute was given to them of Ireland in the firſt year of Hen. 3. and all the Chapters thereof (except three or four of the laſt Chapters) are entered in the Red Book of the Exchequer of Ireland, where, in the beginning, after the King's ſtile recited, he ſaith, Imprimis conceſſimus Deo, et hac praeſenti Chartâ noſtrâ confirmamus pro nobis & haeredibus noſtris in perpetuum, quod Hibernica Eccleſia libera ſit, &c. — Firſt, we have granted to God, and, by this our Charter, confirm, for us and our heirs for ever, that the Church of Ireland be frec. — Sir John Davis cites a Record in the Tower, 1ſt of Hen. 3. Memb. 13. of the like Charter of Liberties granted by Hen. 3. to his Subjects in Ireland, as himſelf and his Father had granted to the Subjects of England; but yet this miſtake is only for that Coke was not informed of that matter of fact. Harris's Hibernica, pp. 226, 227.

, agreeing in all the Chapters with our Magna Charta, was ſeparately granted to the King's Subjects of Ireland, without diſtinction, in the firſt year of King Henry III. ſo that all the Subjects of Ireland, (the conquered Iriſh not excepted,) from that very early period, and even ſooner

For, the Engliſh Settlers carried their Rights with them, and the native Iriſh gladly accepted the Engliſh Common Law, as ſoon as it was tendered to them by the Engliſh Conquerors, of which I have produced ample teſtimony in a Note on page 108. ſo that their juſt title to Engliſh Liberty and all the legal Immunities of the Conquerors was clearly eſtabliſhed and confirmed by this Iriſh Magna Charta. — They were very ſoon afterwards, indeed, wickedly excluded from theſe equitable Privileges by the inconſiderate Engliſh Settlers; many of whom, for the ſake of tyrannizing over their poor neighbours, even degenerated (as Sir John Davies informs us in p. 32.) into the lawleſs Iriſh manners themſelves, adopting the old Iriſh oppreſſions of Taniſtry, Coſherings, Cuttings, Seſſings, Coigne and Livery, &c. under which moſt wicked

Theſe moſt wicked oppreſſions originally ſp ang from the undue Power and unlimited Sway of the antient Iriſh Chieftaine, or Lords, over their poor brethren; but I muſt refer my Readers, for a particular deſcription of them, to Sir John Davies, who has emply ſet forth the groſa injuſtice and pernicious effects of ſuch unlimited power in men: nevertheleſs I am tempted to cite, by way of ſample, what he has men ioned in on place concerning the wickedneſs of Coigne and Livery in particular: for, in ſhewing the ill effects of Engliſh Degeneracy, he remarks in p. 33. "By this" (ſays he) it appeareth why the extortion of Coigne and Livery is called, in the old Statutes of Ireland, A DAMNABLE CUSTOME, and the impoſing and taking thereof made High-Treaſon. And it is ſaid, in an antient Diſcourſe (ſays he) of the Decay of Ireland, that, though it were firſt invented in Hell, yet, if it had been uſed and practiſed there as it hath been in Ireland, it had long ſince deſtroyed the very Kingdom of Beelzebub. The ſame bad effects are produced, in ſome degree, by every kind of Vaſſalage; ſo that the bad Policy of eſtabliſhing Seigneuries in Canada. or eltewhere, is but too apparent.

pretences they devoured the poor Natives as well as the poorer ſort of Engliſh Settlers, and thereby occaſioned almoſt continual Wars for ſeveral ages; which, in the end, turned out to their own great peril and diſadvantage, according to the never-failing maxim, or rather warning, of the Apoſtle Paul; If ye bite and devour one another, take heed that ye be not conſumed one of another. Gal. v. 15. But, though the Iriſh were, by this wretched Policy of the Engliſh, long deprived of the Benefit of the Engliſh Common Law, yet this by no means deprived them of their juſt Right or Claim to it, which muſt neceſſarily be acknowledged to have been due from the time that the Engliſh firſt ſettled in that Country.

, were as much entitled to Engliſh Liberty, and all the Immunities and Benefits of the Engliſh Common Law, as the Inhabitants of England themſelves: and yet Lord Coke himſelf, it ſeems2d Inſt. p. 2., was not aware of this Circumſtance, but "Conceived" (ſays Serjeant Mayart, p. 226.) that Magna Charta was not of force in Ireland till the 10th of Hen. 7. which is only a miſtake (ſays he) of a matter of fact; for in truth we find (ſays he) that Statute was given to them of Ireland in the firſt year of Hen. 3. &c. But though this was only "a miſtake of a matter of fact," yet it was ſuch a miſtake as might probably, in great meaſure, have occaſioned the erroneous opinions ever after, of that great and worthy man, concerning the Conſtitution of Ireland.

But Serjeant Mayart has not profited ſo much as might have been expected by this knowledge that the Subjects of Ireland were honoured with a diſtinct Charter; for, after pointing out (in page 227) the ſeveral Chapters of the Charter, wherein (as he ſuppoſes) that Law differs from the antient common Law, he adds them triumphantly to his Collection of Precedents for binding Ireland by Statutes made in England; as if a Charter of Liberties, freely given and gladly accepted, could afford any Evidence againſt Liberty! For this undiſtinguiſhing man did not conſider that the King, by this Charter of Liberties, binds and reſtrains himſelf (rather than his People) in all the moſt dangerous points of Prerogative, wherein the Rulers of other Countries are left too much unlimited; and therefore that the Subjects of Ireland might accept the ſame (which they moſt willingly did) without the leaſt Derogation from their juſt and natural Rights.

And, as this Charter was granted to the "King's Subjects in Ireland" without diſtinction, it affords the moſt ample proof that even the conquered Iriſh were entitled to all the Immunities, Protection, and Benefits, which the Engliſh Conquerors themſelves enjoyed by it: for even Serjeant Mayart himſelf proves (in p. 67.) that the Engliſh Laws were given at firſt tam ANGLIS QUAM HIBERNICIS, as well to ENGLISH AS IRISH

Serjeant Mayart alſo informs us, That the whole Realm of Ireland was antiently reduced into Counties, and that the Engliſh Laws had paſſage throughout the ſame, as appears" (ſays he) "by ſeveral Pipe-Rolls of the Time of Hen. 3. in the Exchequer of Ireland, where there are accounts (ſays he) made for fines, paid by the mere Iriſh, for Diſſeiſins, and many other kinds of Treſpaſſes, committed by them in thoſe places, which the Author calls Iriſh Territories; though ſome of the Iriſh, with their poſterity after them, being always averſe to the Engliſh Laws, could not digeſt them, but hid themſelves in the bogs, mountains, &c. But this averſion of "ſome of the Iriſh" to the Engliſh Laws is eaſily accounted for, ſince it appears very clearly, from Sir John Davies's Book, that the Iriſhry had much more experience and woful knowledge of Engliſh Oppreſſion than of the Engliſh Laws; for, when any of them wore driven from their Lands and Poſſeſſions through the avarice, and by the unlawful power, of the great Engliſh Lords, who found their intereſt in treating them as enemies, it was very natural for them to attempt to diſſeize, and recover their former Rights and Poſſeſſions: and again, when they found no Protection from the Engliſh Laws, nor other exertion thereof than that of ſining and puniſhing them for ſuch "Diſſeizins," &c. which were mere Re-entries, it was equally natural for them to imbibe prejudices againſt the Engliſh Laws, and to fly to their Bogs, &c. Thus the Engliſh Oppreſſions were apparently the cauſe why ſome of the Iriſh were averſe to the Engliſh Laws; which I have expreſſed more at large in a Note on p. 108.

. The Iriſh Nation are alſo obliged to Serjeant Mayart for ſome other Proofs in their favour, which he intended againſt them: for, amongſt his Precedents of giving Law, he informs us, in p. 219. that, in the Reign of King Henry II. the common Law and lawful Cuſtoms of England were received, planted, and eſtabliſhed, in this his Majeſty's Kingdom of Ireland; a Point which every Iriſh Patriot is zealous to maintain! And he has favoured us, in page 220, with another notable Example of binding the Iriſh by Engliſh Laws: this, it ſeems, was in the Reign of King John, of whom, (ſays he triumphantly,) in that reſpect, it may be well ſaid, that, Statuit et praecepit Leges; he appointed and eſtabliſhed the Laws; as alſo becauſe he put them in writing, and left them in his Court of Exchequer for their better directions: but he happily informs us at the ſame time, (which ſpoils his own application of the Precedent,) that all this was done "at the inſtance" (ſays he) of the Iriſh, (as the Record ſaith,) or of the Engliſh who accounted themſelves Iriſh, &c. And therefore, as theſe Engliſh Laws and Cuſtoms are clearly acknowledged by himſelf to have been introduced at the inſtance of the Iriſh, it muſt manifeſtly appear, that this antient example excludes the Doctrine which he meant to ſupport by it, in oppoſition to Sir Richard Bolton; and therefore, if all theſe points are duly conſidered, I think we may very fairly retort his own words (which he exultingly applied to Sir Richard Bolton) upon himſelf! viz. Whereupon it muſt needs alſo follow, that the Author's Diſcourſe FALLS ALL IN PIECES, and is nothing to the purpoſe that he would have it.

Serjeant Mayart has alſo taken a great deal of needleſs pains to prove Ireland to be annexed to the Crown of England, and that the King and Parliament of England have Power over Ireland, and he cites ſeveral Acts of Parliament, and other Authorities, in pages 64 and 65 of his Anſwer, in the Hibernica, which clearly prove, indeed, the former part of the Aſſertion, (that Ireland is annexed to the Crown of England;) a point which the Iriſh themſelves are ſo far from denying, that they are rather deſirous to maintain it

Caſe of Ireland, p. 96. It has ever been acknowledged that the Kingdom of Ireland is inſeparably annexed to the Imperial Crown of England The obligation that our Legiſlature lies under by Poining's Act, 10 Hen. VII. c. 4, makes this Tye between the two Kingdoms indiſſoluble. And we muſt ever own it our happineſs to be thus annexed to England; and that the Kings and Queens of England are, by undoubted Right, ipſo facto, Kings and Queens of Ireland. And from hence we may reaſonably conclude, that, if any Acts of Parliament made in England ſhould be of force in Ireland, before they are received there in Parliament, they ſhould be more eſpecially ſuch Acts as relate to the Succeſſion and Settlement of the Crown, and Recognition of the King's Title thereto, and the Power and Juriſdiction of the King. And yet we find, in the Iriſh Statutes, 28 Hen. VIII. c. 2, an Act for the Succeſſion of the King and Queen Anne; and another, chap. 5, declaring the King to be ſupreme Head of the Church of Ireland; both which Acts had formerly paſſed in the Parliament of England. So likewiſe we find, amongſt the Iriſh Statutes, Acts of Recognition of the King's Title to Ireland, in the reigns of Henry VIII. Queen Elizabeth, King James, King Charles II. King William and Queen Mary. By which it appears, that Ireland, though annexed to the Crown of England, has always been looked upon to be a kingdom complete within itſelf, and to have all Juriſdiction to an abſolute Kingdom belonging, and ſubordinate to no legiſlative authority on Earth: Though, it is to be noted, theſe Engliſh Acts, relating to the ſucceſſion, and recognition of the King's Title, do particularly name Ireland.

See alſo page 33, where the ſame author ſpeaks of Ireland's being annexed to, and, as it were, united with, the imperial Crown of England, by ſeveral Acts of Parliament, both in England and Ireland, ſince King John's time. But how far this operates, I ſhall enquire more fully hereafter; I ſhall only, at preſent, obſerve, that I conceive little more is effected, by theſe ſtatutes, than that Ireland ſhall not be aliened or ſeparated from the King of England, who cannot hereby diſpoſe of it otherwiſe than in legal ſucceſſion along with England; and that whoever is King of England is, ipſo fucto, King of Ireland, and the ſubjects of Ireland are obliged to obey him as their liege Lord.

. But none of his Authorities afford the leaſt ſhadow of Evidence for the latter part of his Aſſertion, viz. the Power of the Engliſh Parliament over Ireland. And, becauſe Sir Richard Bolton had allowed that ſuch Laws, made in England, as are declaratory of the Common-Law, do bind Ireland without any confirmation there; (ſee Hibernica, p. 27, &c.) Serjeant Mayart hopes to avail himſelf of the circumſtance, and obſerves thereupon, It muſt neceſſarily follow (ſays he, p. 76) that the Parliament of England hath ſtill an influence upon Ireland, &c. And a little farther he adds, But if it ſhould happen (ſays he) that the Parliament of England ſhould make an expoſition of a Law in force in Ireland, and the Parliament there ſhould make another, and that it may be different or contrary to that of England, certainly (ſays he) Ireland muſt be bound (by the Author's own Rule, meaning Sir Richard Bolton) by the declaratory Statute of the Parliament of England.

But Sir Richard Bolton's Rule includes no ſuch Doctrine. For there is nothing unreaſonable in ſuppoſing that the Iriſh ſubjects, without prejudice to their natural Rights and the Privileges of their own Parliament, might receive the declaratory Statute of the Parliament of England as the beſt Expoſition of the Common-Law, which they before acknowledged, and freely accepted by their own expreſs aſſent and deſire.

Sir Edward Coke himſelf bears ample teſtimony to this. — "Our ſtudent muſt know," (ſays he,) that King John, in the 12th year of his reign, went into Ireland, and there, by the advice of grave and learned men in the Lawes, whom he carried with him, BY PARLIAMENT, DE COMMUNI OMNIUM DE HYBERNIA CONSENSU, ordained and eſtabliſhed, that Ireland ſhould be governed by the Laws of England, which, of many of the Iriſh-men, (for the common conſent before mentioned muſt mean that of the Engliſh ſettlers) according to their own deſire, was joyfully accepted and obeyed, and of many the ſame was ſoon after abſolutely refuſed, preferring their Brehen Law before the juſt and honourable Lawes of England. 1ſt Inſt. p. 141.

But this ſubſequent refuſal, and preference given to the Brehen Law, muſt not be charged to the native Iriſh in general; for Sir John Davis, in his Diſcoverie of the true cauſes why Ireland was never entirely ſubdued, &c. demonſtrates that the Engliſh Settlers were principally to be blamed for this. He ſhews, (p. 135,) that the ſcopes of land, which were graunted to the firſt adventurers, were too large, and the Liberties and Royalties, which they obtained therein, were too great for ſubjects. — And, in p. 144, that theſe Grants of whole provinces and petty kingdoms, thoſe few Engliſh Lordes pretended to be proprietors of all the land, ſo that there was no poſſibility left of ſettling the natives in their poſſeſſions, and, by conſequence, the conqueſt became impoſſible, without the utter extirpation of all the Iriſh; which theſe Engliſh Lordes were not able to doe, nor perhaps willing, if they had been able. This he afterwards explains, ſhewing that falſe notions of private intereſt, among the Engliſh Lords, prevented both the conqueſt, and the introduction of the Engliſh Law: They hoped to become Lords of thoſe lands which were poſſeſſed by the Iriſh, whereunto they pretended title by their large Grants, &c. (p. 144,) and that therefore they perſuaded the King of England (p. 145) that it was unfit to communicate the Lawes of England unto them; that it was the beſt policie to holde them as aliens and enemies, and to proſecute them with a continual warre. Hereby they obtained (ſays he) another royal Prerogative and power; which was, to make Warre and Peace at their pleaſure, in every part of the kingdom: which gave them an abſolute command over the bodies, lands, and goods, (even) of the Engliſh Subjectes heere; meaning in Ireland, where he wrote. And he adds, in the ſame page, "And beſides" (ſays he) the Iriſh inhabiting the lauds fully conquered and reduced, being in condition of ſlaves and villaines, did render a greater profit and revennew, than if they had been made the King's free ſubjects. They alſo feared (as he declares in the preceding page) that, if the Iriſh were received into the King's protection, and made liegemen and free-ſubjectes, the State of England woulde eſtabliſh them (or rather re-eſtabliſh them) in their poſſeſſions by Graunts from the Crown, &c. And "The troth is," (ſays he, in p. 146,) that thoſe great Engliſh Lords did, to the uttermoſt of their power, croſſe and withſtand the enfranchiſement of the Iriſh, for the cauſes before expreſſed.— And he rightly lays the fault upon the pride, covetouſneſs, and ill-counſell of the Engliſh planted heer, which in all former ages (ſays he) have bin the chief impediments of the final conqueſt of Ireland.

On the other hand, he clearly exculpates the native Iriſh from the charge of wilfully refuſing to be ſubject to the Laws of England. "But perhaps" (ſays he, in p. 115) the Iriſhry in former times did wilfully refuſe to be ſubject to the Lawes of England, and would not be partakers of the benefit thereof, though the Crown of England did deſire it; and therefore they were reputed Aliens, Out-lawes, and Enemies. ASSUREDLY THE CONTRARIE DOTH APPEARE, as wel by the Charters of Denization, purchaſed by the Iriſh IN ALL AGES, as by a petition preferred by them to the King, anno 2 Ed. III. deſiring that an Act might paſſe in Ireland, whereby ALL THE IRISHRIE might be inabled to uſe and injoy the Lawes of England, without purchaſing of particular Denizations.

And, in p. 117, he adds: — I am well aſſured, that the Iriſhrie DID DESIRE to be admitted to the benefit of the Law, not only in this petition exhibited to King Edw. III. but by all their ſubmiſſions made to King Richard II. and to the Lord Thomas of Lancaſter, before the warres of the two Houſes; and afterwards to the Lord Leonard Gray and Sir Anthony St. Leger, when K. Henry VIII. began to reform this kingdom. In particular, the Birnes of of the Mountaines, in the 34th of Hen. VIII. deſire that their countrey might be made Shire ground, and called the County of Wicklow: And, in the 23d of Hen. VIII. O. Donnel doth covenant with Sir William Skeffington, Quod ſi Dominus Rex velit reformare Hiberniam, (whereof, it ſhould ſeem, he made ſome doubt,) that hee and his people would GLADLY bee governed by the Lawes of England.

Theſe quotations ſufficiently demonſtrate the willingneſs of the native Iriſh to adopt the Engliſh Laws and Conſtitution, and that the denial of ſuch a reaſonable deſire was the juſt cauſe of their almoſt continual rebellions and bloody wars againſt the Engliſh Settlers. However, in the reign of King James I. the Iriſhry were reſtored to their juſt Rights, and the benefit and protection of the Law of England communicated TO ALL, AS WELL IRISH AS ENGLISH, WITHOUT DISTINCTION OR RESPECT OF PERSONS, &c. (p. 264.) And Sir John Davies himſelf was one of the judges employed in that moſt grateful buſineſs to a benevolent man; I mean the Viſitations of Juſtice, whereby the juſt and HONOURABLE LAW OF ENGLAND was imparted and communicated to all the Iriſhry. (P. 265.) And he informs us, in the ſame page, that the common people were taught, by the Juſtices of Aſſiſe, that they were FREE SUBJECTS to the Kings of England, and not Slaves and Vaſſals to their pretended Lords: That the Cuttings, Coſheries, Seſſings, and other extortions of their Lords, were UNLAWFUL, and that they ſhould not any more ſubmit themſelves thereunto, ſince they were now under the protection of ſo juſt and mighty a Prince, as both would and could protect them from al' wrongs and oppreſſions. They gave (ſays he) A WILLING EAR unto theſe leſſons; and thereupon the greatneſſe and power of thoſe Iriſh Lords over the people ſodainly fell and vaniſhed, when their oppreſſions and extortions were taken away, which did maintain their greatneſs, &c. In p. 262, he informs us, that Sir Edmund Pelham and himſelf were the firſt Juſtices of Aſſiſe that ever ſat in thoſe countries; (ſpeaking particularly of Tyrone and Tirconnell;) "and in that circuit" (ſays he) we viſited all the ſhires of that province: beſides which, viſitation, though it were ſomewhat diſtaſtfull to the Iriſh Lords, was ſweet and moſt welcome to the common people; who, albeit they were rude and barbarous, yet did they quickly apprehend the difference betweene the tiranny and oppreſſion under which they lived before, and the juſt government and protection which we promiſed unto them for the time to come.

Thus the common people of the Iriſhry were at length reſtored to that equality, in the eye of the law, to which they were juſtly entitled (though ſhamefully deprived of it) from the earlieſt time that the Engliſh began to be known in that kingdom, even from the firſt eſtabliſhment of the Engliſh Conquerors; for Sir John Davies ſhews, from Matthew Paris's Hiſtory, that King Henry II. before his return out of Ireland, held a Counſell, or Parliament, at Liſſemore, where the Laws of England were, by all, willingly received; ubi leges Angliae AB OMNIBUS ſunt gratanter receptae, et juratoria cautione praeſtita confirmatae: p. 100. And he informs us, in the next page, that King Henrie the Third did graunt and tranſmit the like Charter of Liberties to his ſubjects of Ireland, as himſelf and his Father had graunted to the Subjects of England, as appeareth (ſays he) by another Record in the Tower, 1 Hen. III. Pat •• m. 13. And he cites alſo a writ of the 12th year of the ſame King, commanding the Lord Juſtice of Ireland to cauſe the Charter of King John to be read and confirmed by Parliament; and again, that the ſame King, by Letters Patent under the Great-Seal of England, did confirme the eſtabliſhment of the Engliſh Laws made by King John, and that all Writs of the Common Law ſhould have courſe there as in England Quod OMNIA BREVIA de COMMUNI JURE, quae currunt in Anglia, ſimiliter currant in Hibernia, &c. Thus it appears, that all Iriſh Subjects, without diſtinction, are entitled, according to the cleareſt and moſt unqueſtionable teſtimony, to all the Rights, Immunities, and Advantages, of Magna Charta and the Engliſh Common Law.

But let us ſuppoſe that, in ſome ſuch declaratory Act, they had reaſon to think the Engliſh Expoſition improper, and ſhould therefore chooſe to confirm their own ſenſe of it by the Authority of their own Parliament, ſurely the latter would be binding in Ireland, and not the Engliſh Statute, as Serjeant Mayart ſuppoſes; for there is no example of an Iriſh Act of Parliament being ſet aſide by the Authority of the Engliſh Parliament, which Serjeant Mayart allows: Neither is it to be imagined" (ſays he in p. 199) that the Kings and Parliaments in England will ever avoid any Laws made in Ireland without a good and juſt cauſe, ſince they have not done any ſuch things for about four hundred years, which is time enough to have experience of their honour and juſtice, &c.

And he afterwards uſes this plea concerning the Honour and Juſtice of the Engliſh Parliament, as an inducement for the Iriſh to be bound by it; "and ſeeing" (ſays he in p. 191) that, for above 400 years, they have never done hurt to Ireland, &c. therefore we may well truſt them hereafter, &c. And again, in p. 192, "But we all know" (ſays he) with what great conſultation, deliberation, and knowledge of things, and the circumſtances of them, the Kings and Parliaments of England have ſtill ordered their affairs, &c. And we may, (ſays he,) as all our anceſtors have done, truſt to their wiſdom, juſtice, and judgement, as a ſufficient hedge and ſecurity for us. But, ſurely, no People, who have the uſe of reaſon or commonſenſe, would be induced by ſuch an argument to ſubmit themſelves implicitly to a Parliament, in which they have no Share of Power or Repreſentation; though, indeed, it may be alleged, in behalf of this writer and his argument, that Parliaments, before his time, were, in general, leſs corrupt than they have been ſince, if we except the Parliaments of Richard II. and Queen Mary; but, in theſe latter times, we all know with what great conſultation, deliberation, and knowledge of things, &c. &c. &c.

If it had been poſſible for the Iriſh Subjects to have given up to Serjeant Mayart this conteſted point, concerning the neceſſity of a due Repreſentation in the Legiſlature, without giving up, at the ſame time, all due Limitation of Government, and conſequently all pretenſions to their natural Freedom, this advice of his might have been eſteemed excuſable!

But it is Repreſentation alone which forms the Baſis, the ſuperiority, and the eſſential difference, of the Engliſh Conſtitution of State, from all others! For, in countries where this is wanting, or where it is become totally corrupted, it makes but little difference, to the bulk of the people, whether the executive part of government be in the hands of one, of a few, or of many; viz. of an Emperor, of a Triumvirate, or of a Senate of Nobles or proud Patricians, (as among the Romans, at different periods of time). The adminiſtration of each of theſe orders of power, reſpectively, is almoſt equally arbitrary, uncertain, and dangerous to the community; to which the Hiſtories of all monarchical as well as ariſtocratical Governments (I mean thoſe that are merely or too nearly ſuch) bear ſufficient teſtimony: ſo that the Repreſentation of the people is the grand point of diſtinction, the fundamental principle, whereby the equity and ſafety of the Engliſh Government is to be meaſured, when we compare it with ſuch Governments as either that of France, or that of Poland.

I have already given ſome ſpecimens of French Government and French Law in my Preface, it being neceſſary that Britiſh Subjects ſhould be well aware of the Nature and Tendency of that Law which has ſo lately received the ſolemn Sanction even of our own Legiſlature,

The late Act for eſtabliſhing the Laws of France in the moſt extenſive Province of the Britiſh Empire muſt indeed ſeem very ſtrange and unnatural to the genius of Engliſhmen in general; eſpecially when we conſider that even the French Inhabitants of that Province themſelves are zealous for the "Privileges of Engliſh Subjects;" which plainly appears by ſome Expreſſions in their late Addreſs to the Governor on that occaſion: and we may, therefore, reſt aſſured that they are not, in general, ſo ignorant, and void of common-ſenſe, as really to prefer the Laws of France to the equitable Conſtitution of England, howſoever they may have been miſrepreſented. We muſt, nevertheleſs, except a few French Seigneurs, who, having already been allowed greater excluſive Privileges than are conſiſtent with the ſafety and freedom of their poor neighhours and fellow-ſubjects, would rather wiſh to promote the French Laws and Cuſtoms (which permit ſuch an unjuſt Vaſſalage) than the equitable Laws of England: and we may likewiſe except the Prieſts, and ſome other abſolute Bigots to the Romiſh Religion, who, being entangled in the Slavery of antichriſtian Principles and "the Doctrines of Devils," are ready to ſubmit to any temporal conditions whatſoever for the ſake of that ſpiritual, or rather Satanical, Bribe, which was wickedly thrown out to them on this occaſion: I mean the ſetting up their adultecated Religion as the eſtabliſhed Church of that Province (with a legal Right to collect Tythes, &c.) by national authority. This was the more unjuſt and inexcuſable, becauſe the Romaniſts had no reaſon to complain of that Toleration which they ſo freely enjoyed before. In a note on p. 125, where I have occaſion to mention the defects of ſome ſuppoſed Statutes, I have added ſome examples (which naturally occurred thereupon) concerning the abominable Tyranny and Wickedneſs of the adulterous Church of Rome; and theſe, I truſt, will ſufficiently juſtify the ſeverity of my expreſſions againſt that antichriſtian Church. See alſo my Remarks on ſeveral very important Prophecies, part 2, p. 18, and part 4, p. 34.

as being proper to be renewed and enforced in a certain Province of the Britiſh Empire! And the Hon. Mr. Juſtice Barrington, in his Obſervations on the ancient Statutes, has alſo, in juſt abhorrence of the French Law, cited ſeveral "Fundamental Maxims"

"Si veut le Roy. ſi veut le Loi." The King's Will is Law! Some of the pernicious effects of this deteſtable maxim I have already ſhewn in my Preface.

of it, upon which the King's Prerogative is founded, which (as he juſtly remarks) may not only be matter of ſome curioſity to an Engliſhman, but, by compariſon, may make him thankful for the noble Conſtitution to which he is happily born. A Cappadocian (ſays he) ;may indeed refuſe, from cuſtom and long uſage, to exchange a deſpotic for a more free Government; but I can never be perſuaded (ſays this benevolent Gentleman) but that there is a neceſſary connexion between Slavery and Miſery, and between Freedom and Happineſs. Seneca (ſays he) nobly inforces the communication of Liberty to the Subject, from the Safety it procures to the King:

This was the uniform Doctrine of all the antient conſtitutional Lawyers of England, and eſpecially of the great Chancellor Forteſcue, whoſe opinion I have expreſsly quoted, and added ſome farther obſervations upon the ſame point, in a Note on page 7 of this Declaration, Part 1.

Errat ſi quis exiſtimat tutum eſſe ibi Regem, ubi nihil a Rege tutum eſt; ſecuritas ſecuritate mutuâ paciſcenda eſt. p. 179.
Now, this neceſſary mutual ſecurity can only be inſured by a free Repreſentation of the People in the Legiſlature; and therefore the learned Author of this excellent remark will readily allow, (I truſt,) when he comes to conſider theſe arguments, that he himſelf was not ſufficiently upon his guard, in another part of his uſeful work, (p. 141,) where he had occaſion to mention the Iriſh Laws; having there unfortunately adopted the miſtaken doctrine of Lord Coke, about binding the Subjects of Ireland by Engliſh Statutes, "if Ireland is mentioned." But it is certainly very natural for a gentleman regularly bred to the profeſſion of the Law to be leſs circumſpect when he follows ſo great an authority as Sir Edward Coke, who is generally, and for the moſt part juſtly, eſteemed the Oracle of the Engliſh Law.

Mr. Barrington is commenting on the Ordinance of 17 Edw. I. pro ſtatu Hiberniae; and, after informing us that it is not found in the Collection of Iriſh Statutes, which begin only with the Ordiance of Kilkenny, in the 3d of Edw. II. he adds, "There can be no doubt," (ſays he,) however, that this Law extends to Ireland, if not repealed by ſome Iriſh Act of Parliament;

This Sentence contains an implied acknowledgement that a Law made in England, relating to the Government of Ireland, may be repealed by an Iriſh Act of Parliament; and if this be allowed, (which it certainly ought to be,) there can be no room to ſuppoſe the Iriſh Subjects bound by an Engliſh Act if Ireland is mentioned; for, wherein is the force or binding of the Engliſh Act if the Iriſh are allowed a Right to repeal it? Such binding amounts to nothing: we may as well ſay that an Engliſh Act binds the Emperor of Morocco and his Subjects, or the wild Anabs, "when eſpecially named," ſince it can bind no longer than while they ſhall be willing to ſubmit to it! But, that the Iriſh Subjects really have a Right to repeal an Engliſh Act relating to their own internal Government, (if we may with propriety apply the word repeal to Acts that were originally defective and void for want of the Iriſh aſſent,) is clearly proved by Mr. Mollyneux, in his Caſe of Ireland, page 76.

as by Poining's Law, in the time of Henry the Seventh, all PRECEDENT

Here the Hon. Mr. Barrington confirms what is before laid down in pages 91 and 92, concerning the effect of Poining's Law.

ENGLISH STATUTES are made to bind in Ireland. And he remarks thereupon, in a note, that ſubſequent Statutes only bind if Ireland is mentioned; as for Wales, (continues he,) all Statutes are now made to extend to it, whether mentioned or not, by a clauſe inſerted in the middle of 20 Geo. II. cap. xlii. &c. But the true reaſon why this doctrine may be applied to Wales with propriety and juſtice, (and yet not to Ireland without injuſtice,) is, becauſe the Welchmen give their aſſent to the Engliſh Laws by their Repreſentatives in the Engliſh Parliament, whereas the aſſent of the Iriſh, which is equally eſſential, cannot be known, in a legal manner, but by the voice of their own parliamentary Repreſentatives; ſo that the very reaſon why all Engliſh Statutes "extend to Wales, whether named or not" forbids the application of the like Doctrine to Ireland: and, as the opinion of the Judges, in the 19th of Hen. VI. and in the 2d of Rich. III. before cited, in favour of Ireland, was founded on this very reaſon, (quia non hic habent milites parliamenti,) I hope the ſame will be thought ſufficient to juſtify my diſſent, as well from Mr. Barrington as from the great Author whom he ſeems to have followed in this matter, I mean Lord Coke himſelf, whoſe aſſertion I propoſe to examine ſtill more cloſely, before I conclude this 2d part of my Declaration.

The Hon. Mr. Juſtice Barrington alſo obſerves, in p. 145, that there have been great and learned controverſies between Molyneux and others, with regard to an Engliſh Act of Parliament binding in Ireland; and Molyneux, (ſays he,) who contends it ſhould not, hath argued ſtrongly from an Engliſh Statute's not being ſuppoſed to extend to Ireland before Poyning's Act in the reign of Henry the Seventh, &c. — and a very ſtrong argument it is! which, I hope, hath already been ſhewn. But the Hon. Mr. Barrington proceeds to cite; from the Parliament-Rolls of the 21ſt of Edw. I. a memorandum of a very unwarrantable exertion of Royal-Prerogative, by that monarch, viz. his ſending a copy of the Ordinance

The Hon. Mr. Barrington, in p. 41, very juſtly remarks, concerning the Statute of Merton, in the 20th year of Hen. III. that the ſaid Statute, as well as many others of this century, ſeems to be only an Ordinance; the difference" (ſays he) "between an Ordinance and Statute (according to Sir Edward Coke) conſiſting in this, that the Ordinance wants the conſent of one component part of the Legiſlature, which is, in all inſtances, that of the Commons. Now, this ſeems to be exactly the caſe of the Act in queſtion, of the 21ſt of Edw. I. de malefactoribus in Parcis; for, though the Act itſelf declares that it was ordained by the King "at his Parliament,"

Our Lord the King, at his Parliament after Eaſter, the 21ſt year of his reign, at the inſtance of the Nobles of his realm, hath granted and commanded to be from henceforth firmly obſerved, &c.

and "at the inſtance of the Nobles of his realm," yet the aſſent of the Commons is not expreſſed; which was very well known, even at that time, to be neceſſary, as the aſſent expreſſed in the Acts of the preceding year ſufficiently demonſtrates; viz. Our Lord the King, in his full Parliament, and by his common Council, hath ordained, &c. Statute de defenſione juris, 20 E. 1. Again, in the Statute of Vouchers, By his common Council hath ordained, &c. Again, in the Statute of Waſte, Our Lord the King, in his full Parliament, holden, &c. by a general Council hath ordained: ſo that a proper Form of declaring the Aſſent of the Commons, even at that time, was very well eſtabliſhed, notwithſtanding that many Statutes are deficient therein, and conſequently are exceptionable in point of authority; as for inſtance, the Statute de Eſcheatoribus, of the 29th year of this reign, ſeems to be thus defective; for though it is dated very ſpeciouſly, (like the Act in queſtion, de malefactoribus in parcis,) at the Parliament of our Lord the King at Lincoln, &c. yet it ſeems only to have been agreed to by the Privy-Council, or the King's Council;by his Council it was agreed, and alſo commanded by the King himſelf ( per Conſilium Regis concordatum eſt coram Domino Rege, ipſo Rege conſentiente et illud extunc fieri et obſervari precipiente, &c.) — ſo that it was apparently enacted and ordained only by the King and his Council, without the leaſt mention of the Conſent of the Parliament, or of the common Council of the Kingdom, and ſeems therefore to have been a mere Order in Council, though artfully dated, "at the Parliament," in order to give it the appearance of Law. Sir Edward Coke, in his 4th inſt. p. 51, gives ſeveral inſtances of ſuppoſed Statutes that had been repealed or diſaffirmed, (wanting the Aſſent of the Commons,) which were nevertheleſs publiſhed and enforced as real Statutes; viz. 5 R. II. c. 5. ſtat. 2, touching enquiries of Hereſies, and 2 H. IV. c. 15, againſt pretended Hereticks, giving power to the Biſhop, or Ordinary, to convent before him or impriſon any perſon ſuſpected of Hereſie;s and ordaining (contrary to the Laws of God) that "an obſtinate Heretick" (or any perſon whom an ignorant popiſh Enthuſiaſt was pleaſed to call ſo) ſhall be burned before the people; both which, as Sir Edward Coke remarks, were diſavowed by the Commons, and (yet) the pretended Acts printed (4 inſt. p. 51, and 3 inſt. p. 40 and 41). Alſo 2 Hen. V. cap. 7, (which Sir Edward Coke, by miſtake, calls cap. 6,) againſt Preachers (was) diſavowed the next Parliament by the Commons, for that they never aſſented, and yet the ſuppoſed Act (was) printed. (4 Inſt. p. 51.) By ſuch notorious treachery and diſhoneſty did the Zealots of the Romiſh Church introduce the papal Tyranny into England.

Sir Edward Coke, in his 3d Inſt. (pages 40 and 41,) clearly proves, from the Parliament-Rolls and other Records, the fraudulent introduction of the above-mentioned Act, in the 5th of Rich. II. by a popiſh Prelate

Sir Edward Coke calls him "John Braibrook," 3 Inſt. p. 41; but, according to Biſhop Godwin, his name was "Robert Braybrook;" (De Praeſulibus Angliae Com. p. 186.) but both of them teſtify that he was Biſhop of London, as well as Lord Chancellor. Among the bleſſed effects of his pious fraud the following are repo ted by Sir Edward Coke, 3d Inſt. p. 40. — By colour of this ſuppoſed Act, (5 Rich. II.) certain perſons that held that Images were not to be worſhipped, &c. were holden in ſtrong priſon, until they (to redeem their vexation) miſerably yielded before theſe Maſters of Divinity to take an Oath, and did ſwear to worſhip Images; which was againſt the moral and eternal Law of Almighty God! This and many other ſuch inſtances of hardened Apoſtacy in popiſh Profeſſors ſufficiently juſtify our applying to the papal Tyranny, in general, that Prophecy of the Apoſtle Paul concerning the "Man of Sin," that was to be revealed, the Son of Perdition, who oppoſeth and exalteth himſelf above all that is called God, or that is worſhipped; ſo that he, as God, ſitteth in the temple of God, ſhewing himſelf that he is God (2 Theſſ. ii. 3 to 6) ; and whom the Lord ſhall conſume with the Spirit of his mouth, and ſhall deſtroy with the brightneſs of his Coming; (verſe 8.) — O! that all thoſe perſons, whoſe hearts are not yet entirely ſeared with the hot iron of popiſh Enthuſiaſm, may duly conſider theſe glaring inſtances of popiſh craft in oppoſition to the Laws of God, and conſequently the apparent danger of adhering to that church which has ſo notoriouſly perverted the Doctrines of the Goſpel; leſt they ſhould be found in communion with the Enemjes of Chriſt at his glorious Coming!

, who at that time was Lord-Chancellor: And the ſame learned author thereupon directs us to mark well the manner of the penning the Act: for, ſeeing (ſays he) the Commons did not aſſent thereunto, the words of the Act be, It is ordained and aſſented in this preſent Parliament, that, &c. And ſo it was, being but by the King and the Lords.

The ſame rule enables us to judge concerning the authenticity of many other ancient Acts, wherein the Aſſent of the Commons is not particularly mentioned, and yet they are publiſhed. The conſtitutions called Statutum de Bigamis, for inſtance, are declared to have been "ſet forth in the Parliament after Michaelmas," &c. Editae fuerunt apud Weſtm. in parliamento poſt feſtum ſancti Michaelis, &c. (Mag. Char. cum ſtatutis quae antiqua vocantur, &c. p. 104, b. Ed. 1556.) But when we mark will the manner of the penning the Act, according to Sir Edward Coke's rule, it appears to be very deficient in parliamentary Authority, though he himſelf has taken great pains to prove its authenticity. He remarks, that theſe words in the 1ſt chapter (concordatum eſt per juſticiarios et alios ſapientes de Concilio Regni) prove it to be by Authority of Parliament; for Concilium Regni, (ſays he) is the Lords and Commons, LEGALLY CALLED COMMUNE CONCILIUM REGNI. 2d Inſt. p. 267. But, even according to this argument, the word "COMMUNE" is apparently wanting, to make up what he himſelf allows to be the LEGAL expreſſion for THE LORDS AND COMMONS; and, if we duly conſider the words which immediately follow, it muſt appear, that the "ſapientes de Concilio Regni," &c. here mentioned, were only ſuch particular ſapientes as held judicial places, (qui conſuetudines et uſum judiciorum hactenus habuerunt); ſo that the expreſſion cannot, with propriety, be ſuppoſed to include the whole repreſentative Body of the Commons, as well as the Lords, &c. but merely the Judges, and ſuch Lords, Prelates, and others, as held judicial places, and were of the King's Council, mentioned in the preamble, viz. In praeſentia, &c. quorundam epiſcoporum Angliae, et aliorum, de Concilio Regis, which Sir Edward Coke (by what authority I cannot gueſs) is pleaſed to call a Committee of both Houſes, though it can mean nothing more than a meeting of the King's Privy-Council; and the ſame may be ſaid of that ſecond meeting, afterwards mentioned, "coram Domino Rege et Concilio ſuo," wherein the ſaid Conſtitutions were again read (auditae et publicatae) and ordered to be ingroſſed and obſerved; quod in ſcripturam redigerentur ad perpetuam memoriam, et quod firmiter obſerventur: which (be pleaſed to remark) is the principal enacting or enforcing clauſe of this Act: And, therefore, when we conſider that the ſame was agreed to, or ordained, by THE JUDGES as well as others, (tam Juſticiarii quam alii concordaverunt quod in ſcripturam, &c.) we may be aſſured that the meeting was not the Parliament, (in which the Judges, as ſuch, have not any vote or voice at all, except that of adviſing,) but merely the King's Privy-Council: and therefore Judge Shard, as cited by Lord Coke, had, ſurely, reaſon on his ſide, when he, "beholding the manner of the penning of this Act," (compare this with Lord Coke's own Rule, to the ſame purpoſe, abovementioned,) was of opinion that it was no Act of Parliament. though Sir Edward Coke was pleaſed to cenſure him, ſaying, that the contrary is holden by many expreſs Authorities, both before and after him. (2d Inſt. p. 267.) But what Authorities can be equal to the internal evidence of the Act itſelf, according to his own rule, Mark well the manner of the penning P &c. For, though it may have been allowed the force of an Act, in judicial proceedings, as well as in the writings of ſome reſpectable commentators, yet this is nothing but the natural conſequence of its having been publiſhed and printed, without remarks, among the other Acts,

The undue Authority, acquired by ſuch impoſitions, was ſtill more notorious, in the credit that has been given, even by the Legiſlature itſelf; to the three other falſe Statutes before-mentioned againſt (what the Papiſts-call) Hereſy: Two of them are expreſsly recited, and formally repealed by an Act of Parliament in the the 1ſt of Edward VI. (cap. 12 §. 3.) as if they had really been Statutes ordained by the Authority of the whole Legiſlature; and all the three falſe Statutes together are recited, acknowledged, and revived, by another Act of Parliament, in the 1. & 2. P. & M. (cap. 6.) and are yet again expreſsly intitled Statutes, and as ſuch are formally repealed by a third Act of Parliament in the 1ſt of Eliz. c. 1. §. 15. But yet theſe ſeveral great Authorities by no means invalidate the Evidence which Sir Edward Coke has produced, to prove that the ſaid three wicked Ordinances were really no Statutes.

agreeable to the intention of thoſe who unlawfully promoted it. But Lord Shard declared from the Bench, in the Aſſiſes at Wincheſter, (anno 30th E. 3.) that this never was a Statute. Lib. Aſſiſarum, p. 173. Shard. Negativa nihil implicat. Et ceo que vous parles del' Statut de Bigamis, ceo ne fuit unquam aſcun Statut.

Another objection againſt this ſuppoſed Statute is the apparent evil intention of the 5th Article, de Bigamis, (from whence it has acquired its title,) which was, to acknowledge a foreign popiſh Law, as if it were already (without interpoſition of Parliament) of legal force in England, and needed only ſome ſmall explanation, with reſpect to the manner of putting it in execution; an idea this, which all free Engliſh Parliaments, even in popiſh times, moſt zealouſly oppoſed! But, above all, the Iniquity of the foreign Decree itſelf, which is introduced by this 5th Article, affords the moſt ample argument againſt the whole Statute, as it ſeems to have been drawn up principally for purpoſe of enforcing, and ſmuggling in, amongſt other articles, that diabolical popiſh Decretal of Pope Gregory IX. for diſcouraging lawful Marriages of Widows or Widowers! The Marriages of the Clergy had been abſolutely forbid

As the "forbidding to marry" is ranked by the apoſtle Paul amongſt the "Doctrines of Devils," (1 Tim. iv. 1.) ſo the papal Antichriſt, in very early times, began to diſcourage the Marriages of the Clergy: but Pope Gregory VII. alias Hildebrand, a Monſter in Iniquity, (to prove which Dr. Cave has cited unexceptionable authorities, Hiſt. Liter. p. 535.) more openly revealed the man of ſin in the 11th Century, and, amongſt other notorious manifeſtations of moſt impious Tyranny, "made a Decree" (in 1074) that, from that time forward, it ſhou'd no more be lawfull for Prieſtes to marrye, &c. Recon's Reliques of Rome, p. 32 b. This was apparently a contrary Doctrine to what St. Paul preached, and conſequently it ſubjects the Roman See to the Anathema of that Apoſtle! Though we, or an Angel from Heaven, preach any other Goſpel unto you than that which we have preached unto you, let him be accurſed. Gal. i. 8 & 9. The Marriage of the Clergy had never before been forbidden except among the worſt of Heretics, but had been allowed by the whole Church of Chriſt, from the time of the Apoſtles, for above 1000 years, down to this unhappy Century: and, with reſpect to Ireland in particular, Sir Edward Coke informs us, that, at a Synod holden in Ireland, by St. Patrick, their Apoſtle, it was unanimouſly agreed that Iriſh Prieſts ſhould have Wives. 4 Inſt. p. 356.

about 200 years before, and thoſe who were already married forcibly ſeparated from their wives,Becon's Reliques of Rome, p. 32 b. (in open contradiction to the Laws of God,) by a Decree of Pope Gregory VII. which was ſtill further enforced by his ſucceſſors; and the Clergy were compelled at length to ſubmit to that unnatural Tyranny, by a variety of the moſt unjuſt and cruel laws and oppreſſions

See, for inſtance, the ſeveral Decrees of a Council, held at London by Anſelm, Archbiſhop of Canterbury, in 1108, upon this ſubject, to oblige the Clergy to forſake their lawful wives, who were mentioned by the Council as Concubines, and were ordered to be delivered up to the Biſhops as Adultereſſes, together with all the goods of thoſe unfortunate huſbands, who perſiſted in their natural affection! Tenth and laſt Article: Omnia vero mobilia lapſorum poſthac Preſbyterorum, Diaconorum, &c. (meaning the goods of thoſe who continued to viſit their wives,) tradentur Epiſcopis, et Concubina, cum rebus ſuis, velut Adultera. Howel's Synopſis Canonum, &c. vol. 1. p. 88.

that ſatanical malice could poſſibly deviſe, in the ſeveral eccleſiaſtical Synods of that and the following century.

But the Decree againſt Bigamy was aimed at the Laity as well as Clergy; ſince every Layman that could read was (before) entitled to the Benefit of Clergy, when convicted of ſome particular offences; which privilege was by this Decree taken away from all perſons called bigami, or who had been twice married ſucceſſively,

Bigamie (ſays Sir William Staunford, in his "Plees del Coron." p. 134) "eſt un counterplee a Clergie," (Lambard calls it an ungodly and popiſh Counterplea, Eiren. p. 555, ) s. a dire, que ceſtui, qui demaunde le privilege de ſon Clergy, ſuiſt eſpouſe a un feme, a tiel lieu, deynz tiel dioces, et que le dit feme moruſt, et ad eſpouſe auter feme, &c.

the principal purpoſe of this new popiſh Ordinance being to caſt an odium and reſtraint upon lawful ſecond marriages, and confound them with the real Felony of having two wives at one time. Thus the intention of the Romiſh Church was apparently diabolical; under a falſe pretence of extraordinary purity, to diſcourage lawful Marriages, and thereby enſnare mankind, through their natural frailties, into real pollutions: and it is notorious that the popiſh tenet of "forbidding to marry" is one of the diſtinguiſhing ſcriptural marks of ANTICHRIST!

(for I cannot properly call it a Statute) de malefactoribus in Parcis into Ireland, with an order to the Chief-Juſtice of Ireland, to enforce it: and he remarks thereupon: — This note fully proves (ſays he) that it was ſuppoſed the King, by his ſole authority, could then introduce any Engliſh Law; and will that authority (ſays he) be leſſened by the concurrence of the two Houſes of Parliament? But this by no means invalidates the juſtice of Mr. Molyneux's argument, while the injuſtice, of which he complains, is ſtill continued; viz. the inequitable pretenſion to bind the Subjects of Ireland by Laws made without their Aſſent, and this even without any exception or juſt diſtinction concerning external or internal Government; for the Iriſh themſelves do not deny the propriety of the pretenſion in the former caſe. The exertion of royal Prerogative, above-mentioned, was certainly illegal, and therefore muſt be eſteemed a bad precedent; for Mr. Barrington himſelf, who cites it, does not pretend to juſtify it; and I know that he will as readily allow, that one bad precedent cannot juſtify another; ſo that his adding ſtill more precedents of the ſame kind adds no weight to his argument, becauſe the authority of Precedents muſt always be weighed and governed by Firſt-Principles and conſtitutional Law; otherwiſe we ſhould be liable to adopt the moſt dangerous doctrines, ſince there is nothing ſo bad but that a Precedent may be found for it!

The ſecond precedent of this nature, which he has produced for the ſame purpoſe, ſtill helps to confirm my obſervation on the other ſide of the queſtion: for this precedent is nothing leſs than the Order of King Charles the Firſt, in the 3d year of his reign, to the Treaſurers and Chancellors of the Exchequer, both of England and Ireland, by which they are directed to increaſe the duties upon Iriſh exports; which ſhews (ſays he) that it was then imagined, the King could tax Ireland by his Prerogative, without the intervention of Parliament. — Now, the precedent "ſhews" indeed (as Mr. Barrington juſtly remarks) that it was then imagined, &c. that is, it ſhews that this falſe doctrine was then imagined by the King and thoſe wretched Courtiers, who, either through ignorance, or wickedneſs, or both, betrayed him with their unlawful counſels; but it by no means "ſhews" that ſuch an arbitrary proceeding was really Law at that time, any more than it is at preſent! for the very ſame volume of Rymer's Foedera, (viz. tome xviii.) that contains the above-mentioned precedent, contains alſo other precedents of the like authority, which equally ſhew that it was then imagined the King could tax EVEN ENGLAND ITSELF by his Prerogative, without the intervention of Parliament. — See A Declaration of his Majeſty's cleere intention in requiring the ayde of his loving ſubjects in that way of Loane

The compulſive means, uſed on this occaſion, to extort money from the people, ſufficiently demonſtrate that "the way of Loane, which" (was then) "intended by his Highneſs," amounted to an exaction of the moſt notorious nature! Many people were impriſoned, and many others preſſed into the land and ſea ſervice, for refuſing to contribute. See Ruſhworth's Collection, vol. 1, p. 426. Sir Thomas Wentworth (afterwards Lord Strafford) was one of the ſufferers on this occaſion, for he was impriſoned by the Lords of the Council, for refuſing the royal Loan. Supplement to the new and general Biographical Dictionary, p. 474. His Majeſty demanded of the City of London the loan of an hundred thouſand pounds. Ruſhworth's Collection, vol. 1, p. 419. If ſuch precedents were to be admitted, or allowed any weight at all, in this argument, the very ſame reign would afford precedents ſufficient to render the King of England as deſpotic as the Emperor of Morocco! In the fourth year of this reign, "the King's Commiſſion" was iſſued to the Lord-Treaſurer and Barons of the Exchequer, and to the Cuſtomers of the Ports, to collect Tonnage and Poundage without authority of Parliament. — "Know ye, that we, by advice of our Lords," (that is, the Lords of his Council, mentioned in the beginning of the Commiſſion,) declare our Will, that all thoſe duties be levied and collected as they were in the time of our father, and in ſuch manner as we ſhall appoint: and, if any perſon refuſe to pay, then our Will is, that the Lord-Treaſurer ſhall commis to priſon ſuch, ſo refuſing, till they conform themſelves: and we give full Power to all our officers, from time to time, to give aſſiſtance to the farmers of the ſame, AS FULLY AS WHEN THEY WERE COLLECTED BY AUTHORITY OF PARLIAMENT. Ruſhworth, vol. 1, p. 669. Here the Neglect of the Authority of Parliament is openly avowed, though the forgetful Monarch was bound under a ſolemn oath, at his coronation, to maintain the Laws of the land!

which is now intended by his Highneſs. Tome xviii. p. 764. Nay, "it was then imagined," (it ſeems,) by thoſe diſloyal perſons who falſely called themſelves "the King's Friends," that the King could not only tax his Engliſh Subjects by his Prerogative, but that he could alſo ſeize, impriſon, try, and even HANG them, by martial Law, without Judge or Jury!

The very ſame volume of Rymer's Foedera (tome xviii.) affords ſeveral authentic precedents for delegating ſuch unlimited Power by the King's Commiſſion! viz one for the county of Suſſex, p. 751; another for the whole county of Kent, p. 763; and a third for the town and county of Southampton, p. 804:

The Commiſſioners were impowered not only to uſe martial Law "againſt ſoldiers or mariners," but alſo againſt OTHER diſſolute perſons, joining with them, or any of them; whereby, under the latter denomination, a way was opened to render all other perſons (beſides ſoldiers and mariners) liable to the uncertain deciſions and haſty rigour of martial Law! Any man whatever might be unjuſtly charged as a diſſolute perſon, &c. and the accuſation alone, whether true or falſe, was ſufficient to diveſt the perſon accuſed of all the privileges of an Engliſh ſubject, at the very time when he ſtood moſt in need of them! So that, if the King's Commiſſioners ſhould happen to diſlike any particular perſon, within the county, or limits of the juriſdiction, expreſſed in their Commiſſion, it was poſſible for them to promote ſuch an accuſation, and thereby render themſelves Judges in their own cauſe; ſince the King's Commiſſion (contrary to his Majeſty's moſt ſolemn engagement, before God, at his coronation) deprived the accuſed ſubject of a legal Trial and the due Proceſs of the Law, the only defence of the innocent, by ſubſtituting an illegal Proceſs in lieu of it! And the horror of this monſtrous uſurpation of power was much increaſed by the following circumſtance, that the Commiſſioners were expreſsly authorized, by their Commiſſions, to erect Gallowes or Gibbetts, and in ſuch places as they ſhall think fit!

and therefore, as it would be partial to admit an arbitrary precedent as an evidence on one ſide of the queſtion, (i e. againſt Ireland,) without weighing, at the ſame time, the ſimilar precedents in the ſame unfortunate reign, which equally affect the other ſide of the queſtion, (I mean the Privileges of the Engliſh Legiſlature,) we muſt neceſſarily exclude, from the preſent enquiry, the moſt diſtant idea that Mr. Barrington's 2d Precedent, for taxing Ireland by Prerogative, can poſſibly afford the leaſt evidence againſt the juſt Rights of the Subjects in Ireland; for, if ſuch Precedents are admitted to prove any thing at all, they prove too much; for they equally "ſhew that it was then imagined the King could tax" and oppreſs even England itſelf, as well as Ireland, by his Prerogative, without the intervention of Parliament; and I am very ſure that the worthy writer, who unguardedly cited from Rymer the above-mentioned Precedent againſt Ireland, would be as zealous to oppoſe any ſuch doctrine as myſelf.

His 3d Precedent is ſtill more deſtitute, if poſſible, of legal evidence. — What would have been the anſwer of the Engliſh Legiſlature, (ſays he,) in the year 1650, to the late claim of Independency in the Colonies, will appear by the preamble to an Ordinance of the 3d Oct. of that year:Whereas in Virginia, and the Iſlands of St. Chriſtopher's, Nevis, Montſerrat, and divers other iſlands and places in America, which were planted at the coſt, and ſettled by the people and authority, of this nation, which are and ought to be ſubordinate to, and dependent upon, England, and hath ever ſince the planting thereof, and ought to be ſubject to ſuch Laws, Orders, and Regulations, as ſhall be made by the Parliament of England; p. 146.

But, though this was indeed the opinion of what Mr. Barrington calls the Engliſh Legiſlature in the year 1650, yet no juſt argument can be drawn from thence with reſpect to the preſent queſtion, (viz. the pretenſion to bind Ireland without Repreſentation or Aſſent;) becauſe it affords as good an argument, as the others above-mentioned, for binding even England itſelf, without any Repreſentation or Aſſent at all, ſince the ſaid Legiſlature (as it is called) was totally defective in every point that is eſſentially neceſſary to conſtitute an Engliſh Legiſlature; for (beſides the total ſuppreſſion of the legal Rights of the Crown to a Share in the Legiſlature) even the neceſſary Aſſent of the whole body of the People was alſo excluded, ſince it is evident that neither the Lords nor the Commons of England were repreſented in that packed junto of Hypocrites which was then called the "Engliſh Legiſlature!" for, after the violent ſeizure of 41 Members of the Houſe of Commons

In Ruſhworth's Collection, 4th part, vol. 2, p. 1355, we read the names of the Members impriſoned by the Army, which were inſerted in the Propoſals and Deſires of the Army, preſented that day to the Parliament by Colonel Whaley and other officers; and in Mr. Ruſhworth's Diary for the next day, Dec. 7, we find the following Memorandum relating to that tranſaction: viz. The Members ſeized on by the Army were this day removed from Mr. Duke's houſe, (commonly called Hell,) in Weſtminſter, WHERE THEY WERE ALL LAST NIGHT, to two inns in the Strand, viz. the King's-Head and the Swan, and there have a guard upon them; p. 1356.

by the Army, on the 6th of December, 1648, and the forcible excluſion of about 〈◊〉 more, Le 7 de Decembre les Membres des Communes, en ſe rendant à leur Chambre, y trouverent à la porte en dehors et en dedans une garde qui en empêcha un grand nombre d'entrer. Le Comte de Clarendon dit qu'il y en eut environ cent à qui on refuſa l'entrée. Rapin, tom. 8, liv. 21, p. 707. by the ſame unlawful power, on the following day, (preparatory to the illegal trial and murder of the King in 1648-9,) the Long-Parliament no longer repreſented the nation, but was merely the Repreſentative of a moſt dangerous ſtanding Army; for ſuch the national Militia was then become; the ſeveral individuals thereof having, by a conſtant military Service for a few Years

The orders of the Lords and Commons for raiſing the militia to oppoſe the King's commiſſions of array were dated in 1642. See Ruſhworth's Collection, part 3. vol. 1. p. 678, 679, 684, 685, 689, and 765.

(viz. from four to ſix Years) acquired a fixt diſlike and contempt for thoſe uſeful employments by which they were formerly enabled (whilſt a mere militia) to earn their bread, ſo that they now acknowledged no profeſſion but that of arms, and conſequently were now become a regular ſtanding army of mercenaries, with a ſeparate intereſt of their own from the reſt of the nation

— Les officiers et les ſoldats comprenoient bien qu'on vouloit ſe defaire d'eux, (that is, the war being at an end, the Parliament was inclined to reduce the number of regular troops by degrees,) et que la plûpart n'etoient gueres en état d'aller reprendre leur profeſſions, après avoir été quatre ou cinq ans occupez à faire la guerre. Il y avoit dans Parnrée un grand nombre d' officiers qui n' étoient avant la guerre que dis artiſans et qui ne voyoient qu' avec peinc qu'ils alloient être reduits à quitter leur emplois qui leur donnoient de l'autorité, et à reprendre leurs anciens mériers. pour ſe mêler, comme auparavant, dans la foule du petit peuple. Ces gens là, le même que ceux que les independans avoient attirez dans leur parti, étoient diſpoſez à tout entreprendre, pour n'être pas obligez à changer la manière de vie qu'ils avoient menée depuis quelques années. Cromwell donc, et les officiers de ſon parti, profitant de cette diſpoſition, s' attachèrent à inſpirer à l'armée un eſprit de mécontentement contre les deux chambres, en quoi ils ne réuſſirent que trop bien. Rapin, Tom. VIII. p. 579.

; and a ſtanding army, by whomſoever paid, muſt ever be dangerous to conſtitutional Liberty and Law.

The army were, indeed, the nominal ſervants of the Parliament, but were nevertheleſs the abſolute Lords and ſovereign Directors of the ſame, having ejected whomſoever they thought proper, and thereby modelled the national Reprepreſentative into a repreſentation only of their own body and party, (as has been ſaid,) ſo that it ceaſed from that time to deſerve the Name of a Parliament or "Legiſlature," being a mere tool of military power, which was permitted to ſit for no other purpoſe than that of lending a pretended parliamentary Authority to the arbitrary meaſures and wicked reſoſolutions of an illegal Council of War; as if the mere Name of a Parliament without the thing itſelf (a due Repreſentation of the people) was ſufficient to authorize and juſtify the moſt deteſtable Deſpotiſm! The whole proceedings of the Council of War, from the time the King was feized at Holmby, (though he himſelf was deceived by their temporizing diſſimulation,) clearly proves their fixed intention to proceed to extremities, contrary to the declared ſentiments

See the Votes of the Commons on the 28th of April, 1648, viz. 1. That the Government of the Kingdom ſhould be ſtill by King, Lords, and Commons. 2. That the ground-work for this Government ſhould be the propoſitions laſt preſented to the King at Hampton-Court; and, 3dly, That any Member of the Houſe ſhall have leave to ſpeak freely to any Votes, Ordinances, or Declarations, concerning the King, &c. Ruſhworth's Collect. part 4. vol. 2. p. 1074.

of the former Parliament, as well as of the citizens of London

Tueſday June 27, 1648. This day a Petition from the Lord Mayor, Aldermen, and Common Council of the City of London was preſented to both Houſes of Parliament; the ſubſtance thereof, for ſatisfaction of thoſe that have not ſeen the Petition, take briefly thus:—That a perſonal treaty may be obtained betwixt his Majeſty and both Houſes, in the City of London, or ſome other convenient place, where it may be moſt for the honour of his Majeſty's royal perſon, and preſervation of the Parliament, as their honours thought fit; unto which treaty they humbly deſire our brethren of Scotland may be invited; that ſo according to the duty of our allegiance, proteſtation, ſolemn league, and Covenant, his Majeſty's royal perſon, honour, and eſtate, may be preſerved; the power and privilege of Parliament maintained; the juſt Rights and Liberiies of the Subjects reſtored; Religion and Government of the Church in purity eſtabliſhed; all differences may be the better compoſed, and a firm and laſting peace concluded; and the union between the two Kingdoms continued, according to the covenant; ALL ARMIES DISBANDED; and all your ſoldiers juſt arrears ſatisfied; the Kingdom's burthens caſed, and the laudable Government thereof, by the good and wholeſome Laws and Cuſtoms, happily advanced. For this, both Lords and Commons, reſpectively, thank the petitioners for their good affection to the Parliament, and ſignify their concurrence in the ſame ſentiments. Ruſhworth, part 4. vol. 2. p. 1167, and 1168.

in general, and of almoſt the whole preſbyterian party, (including at that time a very great majority of the people,) who were earneſtly deſirous to maintain the ancient conſtitution of State, by reſtoring the King to ſuch a ſhare of limited Power as they thought conſiſtent with their own ſafety: But, alas! the ſtanding Army was now become the ruling Sovereign of the Kingdom, and was not leſs zealous to maintain an unlimited Authority than the former ruling Sovereign, whom they had ſo lately fought againſt and impriſoned for the like unlawful pretenſions; ſo that the arbitrary proceedings and injuſtice of the King, in the beginning of his Reign, were ſeverely repaid in kind by proceedings equally arbitrary, illegal, and unjuſt; as Oppreſſion is generally puniſhed by Oppreſſion, that even the injuſtice of mankind may demonſtrate the juſtice of an all-ruling Providence in the Government of the World!

This mock Parliament, ſupported by the ſtanding Army, held the nation in ſlavery J'ai déja dit, que le Parliament n' avoit d' autreappui que l' Armée. C' étoit par le moyen de l' Ar qu'il tenoit la nation dans la ſervitude. Rapin, tom. 9. p. 57. from December, 1648, to April, 1653, including the year referred to, as above, for the ſenſe of the then "Engliſh Legiſlature" concerning the authority of Parliament over Virginia and the other Colonies.

In the beginning of 1653, the artful Cromwell found himſelf ſo well eſtabliſhed in his military poſt of General, or Imperator, of the ſtanding Army, (for ſuch is the original root both of the name and power of Emperors,) that he ventured, by dint of his military authority, to turn the deſpicable mock Legiſtature out of the Parliament-Houſe

Cromwell, — après avoir concerté toutes choſes avec les principaux officiers, ſe rendit au Parliament le 20/30 Avril, accompagné d'un petit nombre d'officiers et de ſoldats, et ſans autre préambule il dic aux Membres du Parliament, qu'il venoit mettre fin à leur autorité dont ils avolent fait un mauvais uſage, et, que ſans deliberer, ils euſſent à ſe diſſoudre ſur le champ. En même temps les officiers et les ſoldats. entrêrent, et ſe tinrent à la porte, pendant que les Membres ſe retiroient hors de la Chambre. A mêſure qu'ils ſortoient, Cromwell diſoit à l'un, qu'il étoit un yvrogne, à un autre, qu'il etoit un voleur, ſans en epargner aucun de ceux qu'il connoiſſoit pour ſes ennemis. Enſuite, il donna à garder la Maſſe, qu'on porte devant l' Orateur, à un de ſes Officiers, et ferma les portes à la clef. Cette action étoit extraordinaire, mais elle ne l' étoit pas plus que celle que le General Fairfax avoit fair peu d'années auparavant, lors qu'il avoit fait chaſſer de la Chambre et empriſonner les Membres QUI N'ETOIENT PAS AGREABLES à l'Armée. Ibid. p. 59.

, and, by the ſame redoubtable authority, choſe another junto, conſiſting of 144 Members, without conſulting the Nation at all, that the new nominal Parliament might be ſtill more obedient in repreſenting and fulfilling the Will and Pleaſure of its military Conſtituents: This wretched Aſſembly, though in the higheſt degree deſpicable in itſelf, was nevertheleſs inveſted with ſovereign AUTHORITY Ces nouveaux Souverains s'étant aſſemblez au jour marqué, Cromwell les harangua, et, après avoir fini ſon diſcours, il leur delivra un inſtrument en parchemin, ſigné par lui même et par les principaux officiers de l' Armée, par lequel on leur deſéroit l' Autorité Souveraine. Cet ecrit portoit, que tous les Sujets d' Angleterre, d' Ecoſſe, et d' Irlande, étoient tenus de leur obéir, juſqu'au 3-13 de Novembre de l'année ſuivante 1654, c'eſt à dire pendant un an et quatre mois, &c. Ibid. 61. over England, Scotland, and Ireland, by an inſtrument drawn up expreſſly for that purpoſe, and ſigned by the General (Cromwell) and the principal Officers of the Army; ſo that we have here an undeniable precedent for governing England, Scotland, and Ireland, without the Repreſentation and Aſſent of the People of any of theſe Kingdoms; and yet no one will pretend to ſay, that the ſame can juſtify any future attempts to deprive either the people of England, Scotland, or even of Ireland, of their juſt right to a free and frequent Repreſentation in Parliament. Now, "the Engliſh Legiſlature" of 1653, (for the Title is not leſs due than it was in 1650,) having continued their ſittings for about five months, diſſolved themſelves, and returned the inſtrument of their Sovereignty to the General and his military Council. On the 1 /22 of December, 1653. Ibid. p. 63. And, two days afterwards, the Council of Officers, by virtue of this devolved authority, which the ſham Parliament (of their own creating and appointing) had re-delivered into their hands, were pleaſed to declare, that, for the future, the Government of the Republick

Deux jours après, le Conſeil des Officiers, en vertu de l'autorité que le précédent Parlement (meaning the junto of 144 perſons, conſtituted and choſen merely by the General, or by the Army) venoit de lui deferer, declara, qu'à l'avenir, LE GOVERNEMENT DE LA REPUBLIQUE reſideroit DANS UNE SEULE PERSONNE, ſavoir, dans celle d'Olivier Cromwell, General des Armées d'Angleterre, d'Ecoſſe, et d'Irlande; et qu'il auroit le tître de Protecteur des trois Royaumes, et qu'il ſeroit aſſiſté d'un conſeil de 21 perſonnes. Rapin, Tome ix. p. 64.

(plainly meaning, as appears by the event, not only the ſovereign executive Power, but alſo the full and ſupreme legiſlative Power of the Republic, or three united Kingdoms, for a certain time)

Viz. from the 16/26 Dec. 1653, to the 3/13 Sept. 1654, as appears by the 1ſt and 8th Articles of what this military Council were pleaſed to call "an Act of "Government," thereby proving their own uſurpation of the ſupreme legiſlative Authority; which Authority they were afterwards pleaſed to lodge in the ſingle perſon of their General, by the 7th and 8th Articles of the ſaid "Act of Government." Ibid. p. 64.

ſhould reſide in one ſingle perſon, namely, their own military Commander, General Cromwell, whom they inveſted with the title and power of Protector of the three Kingdoms. I have thus far purſued the hiſtory of thoſe arbitrary times, as well to ſhew the danger of keeping a ſtanding Army,

I might have ſaved myſelf much trouble, upon this point. had I been aware, when I wrote the foregoing pages, that the danger of keeping ſtanding Armies had been ſo well enforced by Mr. Quincy, in his Obſervations on the Boſton Port Bill. That ingenious and ſenſible Writer has very judiciouſly collected a number of unqueſtionable examples upon the ſubject, which, together with his own pertinent obſervations upon them, demand the moſt ſerious attention not only of every loyal Engliſh Subject, at this time, but of all friends to mankind in general.

and of permitting a national Militia to become ſuch,

The example of military Tyranny, which I have already recited, demonſtrates the great danger of permitting any part of a national Militia to be abſent, longer than is abſolutely neceſſary, from the particular county or diſtrict to which it properly belongs; for, as ſoon as Militia-Men begin to depend upon their Pay. or "Solde," "Dictionnaire militaire," p. 417. inſtead of their induſtry and the regular daily employments which they followed at home, they ceaſe to be the conſtitutional defenders of their country, and become mere Soldiers ("Soldats") or Mercenaries: and therefore, as it is now reported that great pains are, at this time, taken, in the ſeveral American Colonies, to renew the ancient diſcipline of the Militia, in their reſpective provinces, it is a matter of great conſequence, (as well for their own internal happineſs and liberty, as for the preſervation of peace and union with the mother-country, and a continuance of that due conſtitutional ſubjection, to the Crown of Great-Britain, which is the true intereſt of all parties, as it connects every branch of the empire, and inſures mutual confidence and protection againſt foreign enemies,) that no perſons whatever be allowed the rank of Officers, in any of their provincial Regiments of Militia, unleſs they have a competent fortune, either in Land or Money, to enable them to live comfortably, without military pay, leſt they ſhould ever entertain a ſeparate Intereſt from that of the Public, and, like the degenerate Militia under Cromwell, enſlave their country! Even a common Militia-Man is not properly qualified for that public Truſt (for ſuch it is) unleſs, from his ſituation in life, or as the maſter of a family, he has ſome permanent intereſt in the welfare of the community.

as to demonſtrate the inſufficiency and illegality of the Precedents which have been cited to juſtify the fatal pretenſion of England to govern Ireland, and the other Colonies, without the Repreſentation and Aſſent of the reſpective inhabitants; for we might as well enquire what would have been the anſwer of the Engliſh Legiſlature in the year 1653, (when the whole Legiſlature was compriſed within the narrow compaſs of Cromwell's own doublet,) as "in the year 1650," to which this learned writer has referred us; ſince the authority of the nominal Legiſlature in 1650 was entirely illegal, as well as that in 1653, both of them having been ſet up and maintained by the ſame unconſtitutional arbitrary power; and both of them totally void of the indiſpenſable Repreſentation of the people: for though the wretched remains of the Long-Parliament in 1650 (being about 80 Repreſentatives or Members, inſtead of 513 that had been elected Ainſi ce Parlement, qui dans ſon commencement avoit été compoſé du Roi, d'une Chambre d'environ ſix-vingts Seigneurs, et d'une Chambre des Communes, où il y avoit cinq cens treize Députez, ſe vit reduit à une Chambre des Communes compoſée d'environ quatre-vingts Membres, dont il y en avoit très peu qui, au commencement de ce Parlement, euſſent cinq-cens livres ſterling de rente. Cependant ces membres, quoiqu'en ſi petit nombre, s'attribuoient le nom de Parliament, et agiſſoit comme ayant réuni, dans leur corps, le pouvoir qui avoit auparavant reſidé dans le Roi, dans los Seigneurs, et dans les Communes. Cela pourroit paroître fort étrange, ſi on n'étoit pas déja inſormé de ce qui s'étoit paſsé, et de la terreur que L'ARME'E inſpiroit à tout le monde. Rapin, tome ix. p. 4. at the beginning of that Parliament) were indeed choſen by a ſmall part of the people of England, yet the legal Repreſentation, even of that ſmall part, was out of date and void, from the length of time that the ſaid Repreſentatives had continued without Re-election, which was about ten years; whereas it is well known that the due effect, or virtue, of popular Repreſentation, was formerly ſuppoſed to be incapable (like ſome annual fruits) of being ſo long preſerved in uſeful purity, without a ſeaſonable renewal,

The ſenſible and patriotic author of the Letters from a Farmer in Pennſylvania to the Inhabitants of the Britiſh Colonies (1774), remarks, in a note on page 103, that, the laſt Iriſh Parliament continued thirty-three years, that is, (ſays he,) during all the late reign. The preſent Parliament there has continued from the beginning of this reign, and probably will continue (ſays he) to the end!

This is indeed, as he juſtly calls it, a moſt pernicious particularity, it being a greater defect in the conſtitutional Liberties of Ireland than any other that I ever heard of; and, as it is apparently contrary to the intention and legal conſtitution of Parliaments, muſt neceſſarily reflect the greateſt diſhonour on thoſe perſons, whoever they are, that have introduced this monſtrous infringement on the natural Rights of the Iriſh Subjects.

Theſe excellent Letters, which contain much ſeaſonable inſtruction, are ſaid to be written by John Dickinſon, Eſq. the ſame eminent Author to whom thanks were moſt deſervedly given, by the Committee for the Province of Penſylvania, on the 21ſt of July laſt, for the great aſſitance they had derived from the application of his eminent abilities to the ſervice of his country, in (another) "performance," ſince publiſhed, intitled, "A new Eſſay" (by the Pennſylvanian Farmer) on the conſtitutional Power of Great-Britain over the Colonies in America, &c. And the ſaid Committee, with great juſtice and propriety, recommended that performance, as highly deſerving the peruſal and ſerious conſideration of every friend of liberty, &c.

from time to time; ſo that our more prudent Anceſtors (imitating nature) required alſo an annual

Sir Edw. Coke, in his 4th Inſt. p. 9, ſpeaking of "the matters of Parliament," informs us of the reaſons uſually expreſſed in the writs for calling a new Parliament; as pro quibuſdam arduis urgentibus negotiis, nos ſtatum, et deſenſionem regni noſtri Angliae, et Eccleſiae Anglicanae concernentibus quod dam parliamentum noſtrum, &c. teneri ordinavimus, &c. And he adds, in the next paragraph, "Now, for as much" (ſays he) as divers Laws and Statutes have been enacted and provided for theſe ends aforeſaid, and that divers miſchiefs in particular, and divers grievances in general, concerning the honour and ſafety of the King, the State, and defence of the Kingdome, and of the Church of England, might be prevented, an excellent Law was made, anno 36 Edw. III. c. 10. which, being applied to the ſaid Writs of Parliament, doth, in a few and effectual words, ſet down the true ſubject of a Parliament in theſe words: For the maintenance of the ſaid articles and ſtatutes, and redreſs of divers miſchiefs and grievances, which daily happen, A PARLIAMENT SHALL BE HOLDEN EVERY YEAR, as another time was ordained by a ſtatute. Which Statute, here referred to, was made in the 4th year of the ſame reign, cap 14. Item, it is accorded, that a Parliament ſhall be holden EVERY YEAR ONCE, and more often if need be. But Sir William Blackſtone ſuppoſes that the King never was obliged, by theſe Statutes, to call a new Parliament every year; but only to permit a Parliament to ſit annually for the redreſs of grievances, and diſpatch of buſineſs, if need be. (1 Com. c. 2, p. 153.)

It is too true, indeed, that our Kings, in general, did not think themſelves "obliged, by theſe Statutes," (as they ought in conſcience to have been, for the ſafety of their ſouls,) "to call a new Parliament every year:" nay, it is certain that many of them would never have called a Parliament at all, had they not been "obliged" by neceſſity and the circumſtances of the times. But by what authority could a repreſentative in one Parliament take his ſeat in the next annual Parliament, without reelection, before any laws were made for lengthening the duration of Parliaments? And beſides, if the King did "only permit a Parliament to ſit annually," &c. by what authority could the Parliament be convened at all, under ſuch a circumſtance, ſeeing that a mere permiſſion to ſit excludes the idea of a prorogation from year to year? However, the learned Commentator himſelf very juſtly obſerves, in a preceding page, (150,) concerning "the manner and time of aſſembling" that the Parliament is regularly to be ſummoned by the King's Writ or Letter, iſſued out of Chancery. And it is well known that theſe Writs are not addreſſed to the knights, citizens, and burgeſſes, elected for any former Parliament, but to the Sheriffs alone, to cauſe Kinghts, Citizens, &c. to be elected; for, when the ſaid Acts were made, ſuch an abſurdity in politics had never been conceived in England, as that of entruſting the Repreſentation of the people, for a term of years, (as at preſent,) to the perſons elected! On the contrary, when the buſineſs of each Seſſions was finiſhed, the Parliament, of courſe, was at an end; and therefore Lord Coke did not ſpeak in vain, when he mentioned "the excellent Law" (viz. the Act for annual Parliaments) "being applied to the ſaid Writs of Parliament," &c. before recited.

A man of ſo much good-ſenſe, learning, and judgement, as Sir William Blackſtone is maſter of, muſt be well aware of the pernicious effects of inveſting the Repreſentatives of the people with a legiſlative power, beyond the conſtitutional term of A SINGLE SESSION, without Re-election; and therefore I cannot but be ſurprized at the unguarded manner in which he has expreſſed himſelf in his Comment on the two excellent Statutes of Edward III. for annual Parliaments; viz. that the King is not,or ever was, obliged by theſe Statutes to call a new Parliament every year, &c. He has cauſed the word new to be printed in Italies, as if he meant thereby to inſinuate, that the Legiſlatures of thoſe early times were not unacquainted with our modern idea of conferring on the popular Repreſentatives a kind of continued ſenatorial dignity, without Re-election, for ſeveral years together; whereas he certainly muſt have known that this corrupt modorn practice has produced a new order of men amongſt us a moſt dangerous increaſe of ariſtocratical power, which was entirely unknown to our Anceſtors in the glorious reign of Edward III. If he could ſhew that there ever was a Parliament, in thoſe times, that was not a NEW Parliament, his Comment might be juſtified! But it is notorious that Writs were iſſued to the Sheriffs, for new Elections, almoſt every year during that whole reign: The Writs, for the moſt part, are ſtill preſerved with the Returns upon them. In the catalogue of Election-Writs, which Prynn has given in his Brevia Parliamentaria Rediviva, p. 4 to 6, there is an account of Writs iſſued for new Elections in every year of that King's reign, between his 34th (when the laſt Act for annual Parliaments was made) and his 50th year, except 3, viz. the 40th, 41ſt, and 48th years; in which years the Records of Summons to the Prelates and Lords of Parliament are alſo wanting, as appears by Sir William Dugdale's perfect Copy of Summons to Parliament, of the Nobility, &c.

And yet this affords no abſolute proof that Parliaments were not held in thoſe very years for which the Writs are wanting; becauſe the bundles of Writs for the ſaid years may have been loſt or miſlaid. The only wonder is, that more have not been abſolutely loſt, when we conſider the very little care that had been taken of them; for Prynne found many of theſe Writs diſperſed amongſt a vaſt miſcellaneous heap of other records on various ſubjects, (as he himſelf relates in his Epiſtle-Dedicatory to King Charles II. of his Brevia Parliamentaria Rediviva,) calling the ſaid heap a confuſed Chaos, under corroding, putrifying cobwebs, duſt, and filth, in the darkeſt corner of Caeſar's Chapel in the White Tower, as mere uſeleſs Reliques not worthy to be calendred, &c. And, in page 103 of that ſame work, he ſpeaks of 117 Bundles of Writs, whereof 97 had only been then lately diſcovered, filed, and bundled, by himſelf: "But many of theſe 117 Bundles" (ſays he) are not compleat, above half or three parts of the Writs being either rotted, conſumed, maymed, torn, or utterly loſt, through careleſſneſs, wet, cankers, or other caſualties; and ſome of them have not above two, three, or four Writs, and one or two but one Writ and Retorn remaining.

But that there were really Writs for Parliaments, even in thoſe three years, which appear to be wanting, at leaſt in two of them, is very certain; becauſe it was in the 40th year of this reign, as Sir Edward Coke informs us, (4 Inſt. p. 13,) that the Pope demanded homage for the kingdoms of England and Ireland, and the arrears of revenue granted by King John to Pope Innocent III. whereupon the King, in the ſame year, calleth his Court of Parliament,

In this Parliament it was unanimouſly agreed, by the Prelates, Dukes, Counts, Barons, and the Commons, ("et la Common," and again, "at Communes,") that the ſaid King John, nor no other, could put himſelf, nor his Realm, nor his People, in ſuch Subjection, without their Aſſent, ('ſans aſſent de eux;') and, if it was done, it was done without their Aſſent, (that is, without the Aſſent of the Commons, for the Aſſent of the Barons was expreſſed in the Charter,) "and contrary to his Oath at his Coronation" P. 14. Whereupon Lord Coke remarks, in the margin, that no King can put himſelf, nor his Rea'm, nor his People, in ſuch Subjection, without Aſſent of the Lords and Commons in Parliament, &c.

&c. as Sir Edward Coke proves from the Parliament-Rolls of that year, No. 8, remarking, at the ſame time, that the Act then made was "never yet printed." See the margin, 4th Inſt. p. 13.

And it appears that a Parliament was held alſo in the 48th year of this reign, becauſe ſupplies were in that year granted to the King by Parliament, as related by Sir Richard Baker, in his Chronicle, p. 173, viz. in his eight and fortieth year, IN A PARLIAMENT, is granted him a 10th of the Clergy, and a 15th of the Laity. So that there is but one year, out of ſo many, in which we cannot trace the meeting of the annual Parliaments: And annual Writs for new Elections were regularly iſſued for the firſt 18 years of the following reign, (as appears by Prynn's 2d part of a brief Regiſter and Survey of the ſeveral kinds and forms of parliamentary Writs, pages 116 and 117,) till Richard II. (that wretched perjured monarch) had rendered himſelf abſolute.

His arbitrary proceedings very ſoon afterwards occaſioned his own loſs of Power, and total Ejectment from the Throne; ſo that, notwithſtanding his boaſted Firmneſs in executing his favourite Meaſures, he was at laſt reduced to the moſt abject acknowledgements of his own unworthineſs to reign.

After conſidering theſe unqueſtionable evidences of the iſſuing Writs annually for new Elections, it will be difficult to comprehend the meaning of Sir William Blackſtone's Comment on the ſaid two Acts for annual Parliaments: Not that he (the King) is, or ever was, obliged by theſe Statutes to call a new Parliament every year; but only to permit a Parliament to ſit annually for the redreſs of grievances and diſpatch of buſineſs, if need be. — Theſe laſt words (ſays he) are ſo looſe and vague, that ſuch of our monarchs as were enclined to govern without Parliaments, neglected the convoking them, ſometimes for a very conſiderable period, under pretence that there was no need of them, &c.

But "theſe laſt words" are not ſo looſe and vague as either to juſtify his own explanation of the ſaid Statutes, (viz. not to call a new Parliament every year, but only to permit a Parliament to ſit, &c.) or to excuſe, in the leaſt degree, the criminal neglects of thoſe depraved monarchs who were inclined to govern without them: for the words, "if need be," cannot, according to the moſt obvious ſenſe of the Act wherein they are found, be applied to the main purpoſe of the Act, (the holding annual Parliaments,) but merely to the remaining part of the ſentence, viz. and more often: that is, "and more often, if need be." The Order, that a Parliament ſhall be holden EVERY YEAR ONCE, is abſolute, and the diſcretionary power, expreſſed in the words "if need be," relates apparently to the calling Parliaments "more often:" for, if the ſaid diſcretionary words, "if need be," could, with any propriety, be applied to the whole ſentence, the Act itſelf would have been nugatory; which could never be the intention of the Legiſlature: but the true meaning and ſenſe of the Legiſlature is very clearly proved by the hiſtories of thoſe times: for it is manifeſt, not only that new Repreſentatives were elected every year (with only one exception) for a conſiderable number of years after the laſt of the ſaid Acts was made, (which confirms the main purpoſe of the Acts, viz. the holding annual Parliaments,) but it is alſo manifeſt, that Parliaments were frequently held "more often" than once a year;

Writs were iſſued for electing 3 new Parliaments in the 6th year of Edw. III. 2 in his 11th year, 3 in his 12th year, and even 4 in his 14th year; and there appear to have been 2 new Parliaments in the 7th of R. II. See Prynne's Brevia Parliamentaria Rediviva, p. 5 & 6.

which amply confirms alſo what I have before ſaid, concerning the meaning of the diſcretionary power, expreſſed in the ſaid Act, by the words "if need be."

Theſe very frequent Elections (ſometimes two, three, and four, times IN ONE YEAR) ſufficiently prove that the power, delegated by the people to their Repreſentatives, continued no longer in force than during the Seſſion of the particular Parliament to which they were ſummoned; which being "once determined," (ſays Prynne, 1ſt part of Brief Regiſter, &c. of Parl. Writs, p. 334.) they preſently ceaſed to be Knights, Citizens, Burgeſſes, Barons, in any ſucceeding Parliaments or Councils, unleſs newly elected and retorned to ſerve in them, by the King's NEW Writs, as our Law-Books (referring to 4 Ed. IV. f. 44. Brook, Officer, 25. 34 Hen. VIII, c. 24.) and experience reſolve, &c. And therefore Judge Blackſtone's inſinuation, againſt the calling of a new Parliament, has no real foundation: for, if it was the intention of the Legiſlature, in the two Acts abovementioned, that the King ſhould ever ſummon any Parliament at all, they muſt neceſſarily be underſtood to mean a new Parliament on all occaſions; i. e. not only that the regular Parliaments, which they ordained to be holden every year once, ſhould be new Parliaments, but thoſe alſo that ſhould be ſummoned upon any extraordinary unforeſeen occaſions; which is ſufficiently expreſſed in the 1ſt of the ſaid Acts, by the words, and more often, if need be. The meaning of the Act is unqueſtionably proved by the actual iſſuing of writs, to the Sheriffs, for electing Knights, Citizens, &c. for two, three, and ſometimes four new Parliaments, in one year, as mentioned above: And if any perſon ſhould object, that ſuch very frequent Elections muſt be attended with inſuperable difficulties and inconveniences, we may quote the experience of all ancient times, as affording ample and ſufficient proofs to the contrary; there being not above two or three caſes of elections queſtioned, or complained of, from 49 Hen. III. till 22 Edw. IV. (that is, more than 200 years.) for ought that appears by the Retornes or Parliament-Rolls, and NOT SO MUCH AS ONE DOUBLE RETORNE OR INDENTURE, wherewith all the late Bundles; or Writs, are ſtored, and the Houſe of Commons and late Committees of Privileges peſtered, perplexed, to the great retarding of the more weighty public affairs of the King and Kingdom. Prynne, Brevia Parl. Rediv. p. 137. This enormous evil, the retardment of buſineſs, by undue Returns, will not (I may venture, without the ſpirit of prophecy, to aſſert) be remedied by the new Regulation for that purpoſe. The Commons were never (in ancient times of Freedom) eſteemed the proper Judges of their own Elections, but the King alone, that is, in his limited judicial capacity, by his Juſtices and his ſworn Juries, in the Courts of Common-Law. If my countrymen will ſeriouſly conſider all theſe points, they muſt be convinced that the only ſure method of healing the alarming diſtempers of our political Conſtitution

Viz. the enormous national Debt; the numerous Penſions; the ſecret parliamentary Influence; a ſtanding Army of near 100 Battalions of Foot, beſides Caval y, in time of Peace I &c. &c. &c. which muſt render the Eſtates and Property of individuals precarious and inſecure, or finally EAT THEM UP with growing burtbens, if theſe fatal ſymptoms of the moſt dangerous political conſumption are not ſpeedily checked and thrown off, by the wholeſome preſcriptions of a free and equal Repreſentation of THE PEOPLE.

is to reſtore to the people their ancient and juſt Right to elect a new Parliament, "every year once, and more often if need be," whatſoever Judge Blackſtone may think of it!

No Parliament could have any right to deprive the people of this ineſtimable Law, unleſs the Repreſentatives had expreſsly conſulted their reſpective conſtituents upon it; as the alteration was of too much moment to be intruſted to the diſcretion of any Repreſentatives or Deputies whatſoever, being infinitely more important than any new devi e, moved on the King's behalf, in Parliament, for his aid, or the like; for the moſt eſſential and fundamental Right of the whole body of the Commons (I mean the Principals, not the Deputies or Agents) was materially injured by the fatal change, and the people's power of controul, for the general good of the kingdom, was thereby apparently diminiſhed! ſo that, if it is the duty of Repreſentatives (even in "any new device" of mere aid, or the like, ) to conſult their Conſtituents, how much more, upon the propoſal of ſo material an alteration in the Conſtitution, ought they to have anſwered, that, in this new device, they DARE NOT AGREE WITHOUT CONFERENCE WITH THEIR COUNTRIES! Theſe are the words of Lord Coke, who mentions them as the proper anſwer, when any new device is moved, &c. and he adds, whereby it appeareth" (ſays he) "that SUCH CONFERENCE is warrantable by the Law and Cuſtome of Parliament, 4 Inſt. p. 14 ; ſo that no Repreſentative can be juſtified (according to "the Law and Cuſtome of Parliament") who refuſes to receive the Inſtructions of his Conſtituents, notwithſtanding that ſeveral very ſenſible, worthy, and (I believe) ſincerely patriotic gentlemen have lately declared themſelves to be of a contrary opinion; but, when they peruſe the ſeveral authorities which I have cited, concerning the abſolute neceſſity of a very frequent appeal to the ſenſe of the whole body of the people, I truſt, in their candour and love of truth, that they will alter their ſentiments.

renewal of their parliamentary Repreſentation, as being neceſſary for the maintenance of public virtue.

Thus the third Example, given by this learned gentleman, for taxing Ireland and Virginia, &c. without the aſſent of the reſpective inhabitants, is manifeſtly illegal; ſince it muſt appear, that what he calls the Engliſh Legiſtature, in the year 1650, was totally void of every eſſential and legal qualification to, render it worthy of ſo diſtinguiſhing a title: but, ſuppoſing that the Engliſh Legiſtature, in the year 1650, had been a legal and conſtitutional Parliament, yet the Reſolutions he has mentioned would have been totally illegal, and amount to no more than a mere vain aſſertion, as void of Law and Reaſon as it was really of Effect; which is proved by the ANSWER of the Engliſh Legiſlature, at Virginia, (then repreſenting the People of that province,) to the unreaſonable pretenſions, beforementioned, of the mock Legiſlature at London; for otherwiſe, if we were to conſider what would have been THE ANSWER (or rather what really were THE CLAIMS) of the one Legiſlature, without conſidering, at the ſame time, the real ANSWER of the other, to ſuch vain and unjuſt pretenſions, we ſhould lay ourſelves open to the charge of partiality!

The judicious Author of a late Apppeal to the Juſtice and Intereſts of the People of Great-Britain, in the preſent Diſputes with America, has reported the Anſwer of the Virginian Legiſlature on that occaſion. Upon the diſſolution of the Monarchy, (ſays he,) the Commonwealth diſpatched a Governor, WITH A SQUADRON, to take poſſeſſion of Virginia. He was permitted to land, upon Articles, of which the following is one, and deciſively ſhews what were their original ideas of their Rights. Article 4th. VIRGINIA ſhall be free from all taxes, cuſtoms, and impoſitions, whatſoever, and none ſhall be impoſed on them WITHOUT CONSENT OF THE GENERAL ASSEMBLY. An Appeal,

This little tract contains a great dear of intelligence and ſound reaſoning concerning the natural Rights of mankind, and is highly worthy the peruſal of every good citizen who deſires information concerning the preſent differences with the Britiſh Colonies: and, upon the ſame occaſion, the clear and unanſwerable arguments of another able writer alſo, who ſigns himſelf "Free Swiſs," muſt not be forgot: The title of the work, laſt mentioned, ſeems indeed to be the only exceptionable part of it; viz. Great-Britain's Right to tax her Colonies, placed in the cleareſt light, by a Swiſs; for a Right, without a juſt foundation, cannot with propriety be intituled "a Right," nevertheleſs he has, moſt certainly, placed in the cleareſt light the impropriety of any ſuch claim upon the Colonies.

&c. p. 29.

I have dwelt much longer upon theſe three Precedents (cited by the Honourable Mr. Barrington) againſt Ireland, than I at firſt intended; but the ſeveral different ſubjects, to which I was naturally led in the examination of them, are of ſo much conſtitutional importance, and ſo neceſſary to be known to every Engliſhman, that I hope I may be excuſed for having, as they occurred, enlarged upon them, in the ſeveral Notes which I have added to my Text.

And, with reſpect to the three Precedents themſelves, I flatter myſelf that every impartial Reader, who carefully conſiders what has been already ſaid upon them, will freely pronounce them illegal, and totally unworthy of being allowed the leaſt weight or conſideration, as Precedents, againſt the Independence of Ireland, ſince they are equally capable of being retorted as Precedents for enſlaving even England itſelf: but I muſt therefore repeat what I have before declared, in p. 141 and elſewhere, that I am very ſure the worthy Writer, who unguardedly cited them, will be as zealous to oppoſe any ſuch doctrine as myſelf; and I believe that I may farther aſſure myſelf, that this learned Author will not be diſpleaſed or offended with the freedom of theſe remarks upon his Work; for, though I have not the honour to be perſonally acquainted with him, yet I am ſufficiently acquainted (by other parts of his Writings) with the general benevolence and rectitude of his intentions, and alſo that he is an admirer and faſt friend to our conſtitutional Liberty (which plainly appears in many other parts of his uſeful Work) as well as myſelf; ſo that any corrections, on that ſide of the queſtion, will be taken (I dare ſay) by him as they were meant by me, that is, in good part, and without the leaſt ill will: and his Work (I ſpeak of it in general) has very deſervedly acquired ſo much eſteem and credit in the world, that I could not, without great injuſtice to the ſubject before me, permit any arguments therein, upon the point in queſtion, to remain unanſwered.

The ſame obſervation, I am inclined to think, is equally applicable, as well to the candour and diſpoſition, as to the writings, of Sir William Blackſtone, whoſe very learned and uſeful Commentaries muſt alſo be ſtrictly examined, upon this point, before I conclude my Declaration: and, had the other great and eminent writers (Lord Coke, Lord Chief Juſtice Vaughan, Judge Jenkins, &c.) whoſe opinions, upon the preſent ſubject, I am obliged alſo to call in queſtion, been ſtill alive, I ſhould have thought myſelf equally ſure of their benevolence and forgiveneſs, if I except Serjeant Mayart; becauſe the undeſerved contempt, with which he has treated Sir Richard Bolton, (the learned Author whom he attempted to anſwer,) prevents my entertaining ſo charitable and friendly an opinion of him as I do of the reſt.

Though I have now drawn theſe remarks concerning the Conſtitution of Ireland to a much greater length than I at firſt propoſed, yet I muſt not conclude whilſt any material aſſertions of great authority remain unanſwered. Several of Sir Edward Coke's objections, on this head, have already, towards the beginning of this 2d part, been proved (I hope) to want foundation: but there ſtill remains to be conſidered a further doctrine, on the ſame point, advanced by him in Calvin's Caſe, which, I truſt, will appear to be equally unjuſt, though founded on the opinion of all the Judges in England!

"In Anno 33 Reg. El." (ſays he) it was reſolved, by all the Judges in England, in the caſe of Orurke, an Iriſhman, who had committed. High Treaſon in Ireland, that he, by the Stat. of 33 Hen. VIII. c. 23. might be indicted, arraigned, and tried, for the ſame, in England, according to the purview of the Statute. 7 Co. 448.

But this doctrine, notwithſtanding the great authority with which it is here delivered, is obnoxious to a fundamental Right of the Subject, the Trial by a Jury of the VICINAGE, or of Neighbours to the Fact, which is due to every private perſon in the Britiſh Dominions, according to the ancient Laws and Cuſtoms of this realm; otherwiſe the government would ceaſe to be limited, and thereby would ceaſe to be lawful! So that if Sir Edward Coke had been as much upon his guard, when he quoted this ("Reſolution of all the Judges," as he was when he made his Remarks on that wicked Act of Parliament, in the reign of K. Hen. VII. by which alſo the fundamental Right of Trial by Juries was violated, he would neither have mentioned that Reſolution of "all the Judges," or even the Act itſelf, without guarding againſt the pernicious effects of ſuch an unconſtitutional doctrine, by a proper cenſure, as he did in the former caſe.

"It is not almoſt credible to foreſee" (ſays he) when any when any maxim or fundamental Law of this realm is altered, (as elſewhere hath been obſerved,) what dangerous inconveniences do follow; which moſt expreſely appeareth by this moſt unjuſt and ſtrange Act of 11 Hen. VII. for hereby not only Empſon and Dudley themſelves, but ſuch juſtices of peace, (corrupt men,) as they cauſed to be authorized, committed moſt grievous and heavy oppreſſions and exactions, grinding of the face of the poor ſubjects by penal laws, (be they never ſo obſolete or unfit for the time,) by information only, without any preſentment or Trial by Jury, being the antient Birthright of the Subject, but to hear and determine the ſame by their diſcretion, inflicting ſuch penalty as the Statutes not repealed impoſed, &c. 4th Inſt. c. 1. p. 41.

And afterwards he adds: This Statute of 11 H. VII. we have recited, and ſhewed the juſt inconvenience thereof, to the end, that the like ſhould never hereafter be attempted in any Court of Parliament. And that others might avoid THE FEARFUL END OF THESE TWO TIME-SERVERS, Empſon and Dudley. Qui eorum veſtigia inſiſtunt, eorum exitus perhorreſcant. (ibid.)

But, though theſe two wretched Judges were hanged for their time-ſerving, yet it appears, by this account of Lord Coke, that, when they preſumed to diſpenſe with the interpoſition of Juries, they acted by the expreſs Authority of a Statute, or Act of Parliament; and, though they were Time-ſervers, ſo far as to acquieſce (contrary to their Duty, as Judges) in enforcing that wicked and unconſtitutional Statute, (which exceeded the due bounds to which the Engliſh Legiſlature is neceſſarily limited,) yet, it ſeems, they adjudged no penalties, in conſequence thereof, but ſuch as the Statutes, not repealed, impoſed. And it is plain, therefore, that the crime of thoſe two Judges (againſt which Lord Coke mentioned the FEARFUL END of thoſe two time-ſervers, as a warning to all future JUDGES) conſiſted in allowing the force of Law to a wicked unconſtitutional Act of Parliament, by which a FUNDAMENTAL LAW of this realm (was) "altered;" ſo that their crime was exactly parallel to the (equally criminal) reſolution of "all the Judges in England," in the caſe of Orurke the Iriſhman, heforementioned, (which was, in like manner, founded on an expreſs Act of Parliament, viz. 33 Hen. VIII. c. 23.) and parallel alſo to the crime (for it muſt be ſo eſteemed) of all the Judges of England, when they "reſolved," in Sir John Perrot's Caſe, that, for a Treaſon done in IRELAND, the offender may be tried, by the Statute 35 Hen. VIII. IN ENGLAND, becauſe the words of the Statute be, All Treaſons, committed out of the Realm of England, — and IRELAND is out of the Realm of England, &c. 3d Inſt. p. 11. But the Judges, in both theſe caſes, were quite as inexcuſable as the two time-ſervers, Dudley and Empſon; for, if the real Intention of the Legiſlature, by the ſaid Acts of 33 and 35 Hen. VIII. had been ſo general as to include all places whatever, out of the REALM of England, without leaving room for pleading a legal exception, in behalf of thoſe territories wherein the laws, liberties, and conſtitution, of the Realm of England were already eſtabliſhed, the ſaid Judges ought to have known that a fundamental Law of this Realm was thereby "altered," and conſequently that they incurred the riſk of being HANGED, by ſome future adminiſtration, (like their time-ſerving predeceſſors,) for preſuming to enforce ſuch unconſtitutional Acts of Parliament, by which, (according to the juſt Remark of the ſame great Reporter on a former Act, viz. 11 H. 7.) a fundamental Law of the Realm (was) altered; whereas, they really might have attributed a conſtitutional meaning to the ſaid Acts, by duly diſtinguiſhing thoſe

They might have alledged, that if an ambaſſador, ſent from this kingdom to France, Spain, or to any other foreign State, out of the Dominions of the imperial Crown of Great-Britain, ſhould notoriouſly betray his King and Country, and plot their Deſtruction, he might legally and conſtitutionally be puniſhed according to the letter and meaning of the ſaid Acts of Parliament; and alſo that any other Britiſh Subject whatſoever, that is, in like manner, guilty of Treaſon to his King and Country, during his reſidence in a foreign realm, may be treated accordingly; becauſe all men certainly are accountable to their country for any ſuch Treaſon; and, as they cannot be tried in the foreign realms, where the offences were committed, it is reaſonable and juſt to ſuppoſe, that they may be tried in England, by an impartial Jury, though the ſame a e not "neighbours to the fact," nor impannelled de vicineta, that is, from the neighbourhood where the offence was committed; for, though this circumſtance is eſſentially neceſſary to the Legality of a Jury in every other caſe, yet the law does not require impoſſibilities, and it may therefore (perhaps) be legally diſpenſed with, when it is apparent, from the nature of the caſe, that ſuch an unexceptionable Jury cannot be obtained, and yet that an exemplary puniſhment is manifeſtly due to the Traitor or Traitors: but when Treaſons and other offences are committed in any country under the dominion of the Crown of England, where the criminals might have a legal Trial according to the laws of this realm, (as in Ireland,) the ſaid moſt eſſential formality of being tried by a Jury de vicineto cannot be diſpenſed with; becauſe this would deprive the Subject of an unalienable Right, and alter a fundamental Law of this realm; ſo that any Judge, who ſhould venture to enforce the ſaid Act, IN SUCH CASES, would manifeſtly DESERVE TO BE HANGED, as much as Dudley and Empſon!

The examination of this point gives ſome general idea how far the Power of the high Court of Parliament (notwithſtanding that imaginary "omnipotency" which ſome men have ignorantly attributed to it) may be allowed to extend; for, the more high and abſolute the juriſdiction of the court is, the MORE JUST and HONOURABLE it ought to be in the proceeding, and to give example of Juſtice to inferior courts. 4th Inſt. p. 37. Which is moſt ſtrictly true; for, whenever the ſupreme temporal powers exceed the honourable limits of natural Juſtice and Truth, they leſſen their own dignity, and, in proportion to their errors, forfeit that reſpectful conſideration and eſteem, which would otherwiſe be due from their ſubjects. And we muſt remember, likewiſe, that the being "juſt and honourable" in mere profeſſion of words, without the reality, will have very little weight with the body of the People, who are endued with common-ſenſe, as well as their ſuperiors, to diſcern what is juſt and honourable from that which is merely called ſo; and that a pretence to juſtice and honour, in a bad cauſe, is only an aggravation of injury and iniquity! The moſt wicked ordinances have ſometimes been uſhered into the world under the moſt ſanctified titles and ſpecious pretences! The abominable Act beforementioned, of Hen. VII. was expreſsly ſaid to be againſt "great enormities and offences, which" (have) been committed, and have daily, contrary to the good Statutes, for many and divers behoovefull conſiderations, ſeverally made and ordained, to the diſpleaſure of Almighty God, and the great let of the common Law and wealth of the land.

Now, notwithſtanding this FAIR FLATTERING PREAMBLE, as Sir Edward Coke calls it, yet "THE PURVIEW of that Act" (as he juſtly remarked) tended, in the execution, contrary EX DIAMETRO, viz. to the high diſpleaſure of ALMIGHTY GOD, the great LET, nay, the UTTER SUBVERSION, of the COMMON LAW, and the GREAT LET of the Wealth of this Land; ibid. p. 40 , as, indeed, every other Act of Parliament muſt inevitably do, which perverts the due courſe of the Law, and robs the ſubjects of any fundamental Right.

As for inſtance, let us ſuppoſe, (1ſt,) that an Act is made, to ſtop up or proſcribe the paſſage to any ſea-port town, or any haven, ſhore of the ſea, or great river, without the Conſent, and to the great Detriment, of all the neighbouring inhabitants; ſuch an Act would be "FUNDAMENTALLY WRONG," as being contrary to the firſt or moſt eſſential Right of mankind, the Law of Nature: for it is clearly laid down by Bracton, that all ports, havens, ſhores of the ſea, and great rivers, are free to all peaceable paſſengers, (but more particularly, we may add, to the neareſt inhabitants.) by the Law of Nature and of Nations: NATURALI VERO JURE communia ſunt omnia haec, aqua profluens, aer, et MARE, et LITTORA MARIS, quaſi maris acceſſoria. NEMO enim ad lit us maris accedere prohibetur, dum tamen a villis et aedificiis abſtineat, quia littora ſunt DE JURE GENTIUM COMMUNIA, ſicut et mare. &c. And again: Publica vero ſunt OMNIA FLUMINA et PORTUS, &c. RIPARUM etiam uſus publicus eſt DE JURE GENTIUM, ſicut ipſius ſluminis. Itaque naves ad eas applicare, funes arboribus ibi natis religare, ONUS ALIQUAE in eis reponere CUIVIS LIBER EST, ſicuti por ipſum fluvium naviga e: ſed proprietas earum eſt illorum quorum praediis adbaerent, &c. lib. 1, c. 12, p. 7 & 8. So that ſuch an Act would be mainifeſtly contrary to the Law of Nature and Nations, and conſequently is ſuch as NO LEGISLATURE ON EARTH can render valid or legal, becauſe natural Rights and the Laws of Nature are immutable, "Jura enim naturalia ſunt IMMUTABILIA:" And again, Jura enim naturalia dicuntur IMMUTABILIA, quia non poſſunt ex toto ABROGARI VEL AUFIRRI, &c. Ib. c. 5, p. 4. And beſides, it muſt be remembered, that to proſcribe the paſſage or highway to any city or town (eſpecially if it is done with an avowed deſign to diſtreſs the inhabitants thereof in their lawful occupations) is an intolerable nuiſance, which is clearly adjudged, in Law, to be ſuch a "MALUM IN SE" as can never be made lawful! But MALUM IN SE the King NOR ANY OTHER can diſpenſe; Mes MALUM IN SE LE ROY NE NUL AUTRE poit diſpenſer, ſicome le Roi yeut pardonner a occire un autre, ou lui licence A FAIRE NUSANCE IN LE HAUT CHEMIN, CEO EST VOID, &c. 11 Hen. VII. p. 12. "Wherefore it is generally true" (as Judge Vaughan remarks) that MALUM PER SE cannot be diſpenſed with, &c. Rep. p. 334.

Or, 2dly, ſuppoſe an Act ſhould be made, to impower the Governor of a Province, "without the conſent of the Council," to appoint Judges and other Law-Officers, who ſhall hold their Commiſſions DURING THE PLEASURE OF the Crown, inſtead of the approved and eſtabliſhed legal condition, "quamdiu ſe bene geſſerint;" thereby ſetting up WILL AND PLEASURE ABOVE LAW AND JUSTICE, which are the firſt and moſt eſſential Rights of the People! — Would not ſuch an Act tend to the great LET, nay the UTTER SUBVERSION of the Common-Law, &c.? Suppoſe likewiſe it ſhould be o dained, in ſuch an Act, that the Freeholders and Inhabitants of the ſeveral Townſhips, in any particular province, ſhall not be permitted (even when they are authorized to aſſemble together) to treat upon matters of the MOST GENERAL CONCERN except the buſineſs (be) expreſſed in the leave given by the Governor; which implies that one or a few individuals have a more equitable pretenſion to treat upon matters of the moſt GENERAL CONCERN than even the general Meeting, or whoſe collective Body of perſons themſelves who are concerned! — a principle which is ſubverſive of all "common Right and natural Equity;" and conſequently muſt tend "to the high Diſpleaſure of almighty God," as well as "the great LET of the wealth of the land." And, to compleat the iniquity of ſuch an imaginary Act, let us ſuppoſe a clauſe, whereby "it ſhall and may BE LAWFUL" (LAWFUL!) for the Juſtices, &c. in any Cauſe or Action which ſhall be brought to iſſue, to order the ſaid Cauſe or Action to be tried in ANY COUNTY, OTHER THAN THE COUNTY IN WHICH THE SAID CAUSE OR ACTION SHALL HAVE BEEN BROUGHT OR LAID, BY A JURY OF SUCH OTHER COUNTY, AS THEY SHALL JUDGE FIT, &c. — Such a clauſe muſt ſtrike at the very Foundation of Juſtice!

Or, 3dly, if this imaginary Act ſhould not be eſteemed ſufficiently injurious to the People, (though it is apparently calculated to rob them of that fundamental and unalienable Right, the Trial by a Jury DE VICINETO,) let us ſuppoſe an Act ſtill more PARTIAL (if poſſible) in the "adminiſtration of Juſtice!" and rendeted ſtill more aggravating and inſulting by bearing a title contrary EX DIAMETAO to the purport of it! — Let us (I ſay) endeavour to ſtretch that notorious Injuſtice to the utmoſt extent of inconvenience and injury that a wicked imagination can poſſibly conceive or expreſs! that is, to eſtabliſh a Power of removing the Cauſes and Trials (and even thoſe which are of the moſt importance, viz. for capital offences) not only to a neighbouring County, or to a more diſtant Colony, but even, if caprice ſhould require it, to the furthermoſt extent of the Globe, that is, (without aggravation,) as far as the Eaſt is from the Weſt!

Or, 4thly, if we may conceive the idea of an Act calculated to "fulfil the Meaſure of Iniquity," let us ſuppoſe an Act expreſsly for the purpoſe of eſtabliſhing the arbitrary Laws of France, ( Quod Principi placuit habet vigorem Legis, &c. ſee my Preface thereupon,) and, in order that it may be deſtructive to the Souls, as well as the Bodies and Property, of the wretched Subjects, (as I have already ſhewn,) let us ſuppoſe that ample proviſion is made therein for the Eſtabliſhment (not the mere Toleration) of downright Idolatry and Image-Worſhip! for the Toleration of the moſt notorious EXORCISMS ("Exorciſmus Aquae;" — "Exorciſmum Salis." — "Exorciſo te, creatura Salis;" — ſee the Miſſal) and SPIRITUAL WITCHCRAFT! In ſhort, let us ſuppoſe that ſuch an Act provides for the Eſtabliſhment of that adulterated Religion which has long been perplexed with all the Enthuſiaſm of heathen ignorance, (long Prayers, vain Repetitions, "as the Heathen do,") and bears the moſt apparent marks of Antichriſt, inſomuch that we might be certain; at leaſt, who was the firſt ſpiritual Inſtigator and Promoter of ſuch a Bill, though the bodily Propoſer of it ſhould be lucky enough to-remain undiſcovered! Who ſhall preſume to ſay, that any Power on Earth (whatſoever weak and ignorant men may think of the Omnipotence of Parliament) has Authority or Right, either to eſtabliſh ſuch notorious ſpiritual Abominations, or to render lawful ſuch groſs Iniquity and palpable Injuſtice!

And therefore, if any ſuch Act ſhould be made in our days, (howſoever ſpecious the preamble,) it is our duty, as good ſubjects, to remember that the ſame ought to be conſidered as null and void of itſelf, and that it cannot authorize or indemnify the Judges, or any other perſons, who preſume to enforce It; for all men (and Judges in particular) ought to take warning, (from the fearful end of thoſe two time-ſervers, Dudley and Empſon,) that ſuch an active obedience would, perhaps, endanger their own necks! For ſuppoſe, 2dly, that ſuch an Act was to be decked with the moſt flattering title; let us call it, for inſtance, An Act for the BETTER REGULATING the government of any particular province; or, 3dly, let it be called An Act for THE MORE IMPARTIAL ADMINISTRATION OF JUSTICE, in the caſes of Perſons queſtioned for any acts done by them IN THE EXECUTION OF THE LAW, or for the Suppreſſion

Though "the Suppreſſion of Riots and Tumults" is here included as one of "the fair flattering" PRETENCES in the Title of the above mentioned imaginary Act of Parliament, yet it it is apparent that the wicked Act itſelf would be the moſt effectual method that could poſſibly have been deviſed for THE PROMOTION, inſtead of "THE SUPPRESSION, of Riots and Tumults;" for which, conſequently, none but the Promoters and Makers of ſuch an unjuſt Law could, with any propriety, be eſteemed accountabled ſince it is true, even to a maxim, that He makes THE STRIFE (or "TUMULT") who firſt offends "Qui primum peccat, ille facit rixam," Prin. Leg. et Aequit. p. 92.

of Riots and Tumults,
&c. or, 4thly, ſuppoſe ſuch an injurious and unlawful Act ſhould be intitled An Act for making MORE EFFECTUAL PROVISION FOR THE GOVERNMENT OF any particular province, &c. yet, if "the Purview" (as Lord Coke juſtly remarked) of any ſuch imaginary Acts ſhould tend, in the execution, contrary EX DIAMETRO to all theſe ſpecious pretences, ſet forth in their titles and preambles, by eſtabliſhing principles whereby any fundamental Law of the Realm is altered, the ſame would manifeſtly endanger the necks (I muſt repeat it) of any Judges that were imprudent enough to enforce them, notwithſtanding that the expreſs Authority of King, Lords, and Commons, ſhould be alledged as their ſufficient warrant; becauſe we find that the like Authority afforded no juſtification or excuſe for poor Empſon and Dudley, in a ſimilar caſe, neither did the conſideration of their having acted by parliamentary Authority render their wretched fate more pitiable in the eyes of the public! And therefore I ſincerely wiſh that all modern Time-ſervers may have prudence enough to form (by that plain example) ſome reaſonable judgement concerning the imaginary "Omnipotence of Parliament," which cannot inſure its wretched votaries from the moſt ignominious puniſhment! nor ſecure even the Parliament itſelf from the juſt and laſting Cenſures of the Sages of our Law, ſuch as Lord Coke, for inſtance, who warned them in another place, alſo, expreſsly upon this point: — By colour of which Act, (ſays he, meaning the ſaid unjuſt Act of 11 Hen. VII.) ſhaking this FUNDAMENTAL LAW, (the Law of Juries,) it is not credible what HORRIBLE OPPRESSIONS, and EXACTIONS, to the undoing of infinite numbers of people, were committed by Sir Rich. Empſon, Knt. and Edm. Dudley, &c. and, upon this UNJUST and INJURIOUS ACT, (as commonly in like caſes it falleth out,) a new Office was erected, &c. And in the next paragraph he adds, — And the FEARFULL ENDS OF THESE TWO OPPRESSORS (ſays he) ſhould deterred others from committing the like and ſhould ADMONISH PARLIAMENTS, that, inſtead of this ordinary and pretious Trial PER LEGEM TERRAE, they bring not in abſolute and partial Trials by Diſcretion. 2d Inſt. p. 51.

particular caſes wherein they may LEGALLY be enforced, without thwarting any fundamental Law of the Realm.

From what has been ſaid, I hope it will appear ſufficiently clear to my Readers, that the ſevere cenſure, which Lord Coke ſo juſtly beſtowed on the two wicked Judges, Dudley and Empſon, for ACTING BY THE AUTHORITY OF AN UNCONSTITUTIONAL ACT OF PARLIAMENT, is equally applicable (for the very ſame reaſon) to the Reſolutions beforementioned, of ALL THE JUDGES IN ENGLAND, though Lord Coke himſelf (even the author of the former cenſure) has cited them without the leaſt animadverſion!

The Judges, in the 33d year of Queen Elizabeth, who gave their opinion in the caſe of Orurk, Or "Ornick." See 3d Inſt. p. 11, margin. the Iriſhman, are the more inexcuſable, for their Reſolution upon the Act of 33 Hen. VIII. c. 23. becauſe they had an excellent Example ſet them, but a few years before that time, by two very learned and reſpectable brethren, the Judges Wray and Dyer, (together with the ſaid Queen's Attorney-General,) concerning ſeveral ſimilar Acts of Parliament; which Example is worthy the moſt ſerious attention of all future Judges, that they may ever be careful to reſtrain, by a legal conſtruction, not only the ſaid Acts of King Henry VIII. and King Edward VI. but all others, likewiſe, that may happen to be equally liable to alter the free Conſtitution of the realm, and rob the ſubjects of any eſſential "fundamental Right," that ought to be eſteemed unalienable.

Judge Dyer himſelf has reported the circumſtances of it. He informs us Gerrarde, Chauncelor de Irelande, move ceſt queſtion al Counſel la Roygne, ſ. fi un Countee ou Seignior de Irelande, que commit Treaſon in Irelande per overt Rebellion, ſerra arraygne et mis a ſon tryall in Engleterre pour le offenſe, per l'eſtatute de 26 H. 8. cap. 13. — 32 Hen. 8. cap. 4. — 35 H. 8. — 2 ou 5 Ed. 6.11. — Et fuit tenus per Wray, Dyer, et Gerrarde, Atturney General, QUE IL NE POIT, car il ne poit aver ſon tryal ici PEESES PEERES, NE PER ASCUN JURY DE XII. pur ceo que il n'eſt ſubject d'Engleterre, mes de Irelande, et ideo LA SERRA SON TRYAL. Et dictum eſt, que le uſage la, d'attainder un Peere, eſt per Parliament, et nemy per Pares Dyer's Reports, p. 360 b. that Gerrarde, Chauncelor of Ireland, moved this queſtion to the Queen's Counſel, viz. Whether an Earl or Lord of Ireland, who commits Treaſon by open Rebellion, ſhall be arraigned and put to his Trial in England, for the offence, by the Statute 26 H. VIII. c. 13. — 32 H. VIII. c. 4. — 35 H. VIII. — and 2 and 5 Ed. VI. c. 11. And it was maintained, by Wray, Dyer, and Gerrarde, the Attorney-General, that HE COULD NOT; for he cannot have his Trial here BY HIS PEERS, NOR BY ANY JURY OF 12, becauſe that he is not a Subject of England, but of Ireland, and therefore his Trial ſhall be there, &c.

Theſe worthy Lawyers were not afraid, it ſeems, to maintain the weight of a LEGAL and FUNDAMENTAL REASON againſt the combined force of FOUR EXPRESS ACTS OF PARLIAMENT! And ſuch a reaſon, though it had been advanced only by a ſingle Judge, or even by a private perſon, is certainly of much more weight than the opinion of "all the Judges in England," when given contrary to reaſon, or againſt the tenor of any fundamental Law.

I never heard that this Reaſon, aſſigned by the Judges Wray and Dyer and the Attorney-General, againſt the force of the ſaid four Acts of Parliament, has ever been queſtioned or diſallowed as inſufficient in the caſe of an Iriſh Peer; and therefore a ſimilar reaſon is certainly as effectual in the caſe of any private Iriſh Subject, whoſe crime is parallel; becauſe true Juſtice is equal in all her ways, and has no reſpect to perſons. But if ye have reſpect to perſons, YE COMMIT SIN, and are convinced of the Law AS TRANSGRESSORS. James ii. 9. For the ſame Law, which entitles the Nobleman to a Trial by his Peers, "Per pares ſuos," (Magna Charta, c. 14.) or "per legale judicium PARIUM SUORUM." lb. c. 29. ſecures alſo, to every other perſon, his parallel Right to a legal impartial Trial, by a Jury of honeſt unexceptionable NEIGHBOURS:

Per ſacramentum proborum et legalium hominum DE VINCINETO. Mag. Charta, c. 14.

for a Trial can neither be eſteemed legal or impartial, if the Jury are not impannelled in THE NEIGHBOURHOOD where the offence was committed;

Juſticiarii per Breve Regis ſcribunt vicecomiti comitatus IN QUO FACTUM ILLUD FIERI SUPPONITUR, quod ipſe venire faciat coram eiſdem juſticiariis, ad certum diem per cos limitatum, duodecim probos et legales homines DE VICINETO ubi illud factum ſupponitur; qui neutram partium s;ic placitantium ulla aſſinitate attingunt. Forteſcue de Laud. Leg. Ang. c. 25. p. 54. b.

unleſs we may except the ſingle caſe beforementioned, concerning treaſonable practices againſt this Kingdom, carried on by a Britiſh Subject in the dominion of a foreign prince; where the Crown of England hath no juriſdiction: but, in all other caſes whatſoever, the Trial by a Jury of Neighbours to the Fact is the unalienable RIGHT of all Britiſh Subjects, according to the ancient LAW OF THE LAND: nay, this particular mode of Trial is ſo inſeparably annexed to the Law of the Land, that it is ſometimes expreſſed and known by that general term, "the Law of the Land," (Lex Terrae,) as if there was no other Law of the Land but this one: which emphatical expreſſion ſufficiently proves that this particular Law for the Mode of Trials is the firſt and moſt eſſential Law of the Conſtitution; for, otherwiſe, it could not be entitled to ſuch an eminent and peculiar diſtinction, in preference to all the other excellent Laws of the Land; and conſequently this principal or fundamental Law is ſo neceſſarily implied and comprehended, in that general term, the Law of the Land, that the latter may be conſidered as entirely ſubverted and overthrown, whenever the former is changed or ſet aſide; for ſublato fundamento cadit opus. Jenk. Cent. 106.

In the 29th Chapter of Magna Charta, "the Law of the Land" ſeems to be mentioned in this peculiar ſenſe: Nec ſuper cum ibimus, nec ſuper eum mittemus, niſi per legale judicium parium ſuarum, vel PER LEGEM TERRAS. Lord Cokereſers us, for the true ſenſe and expoſition of theſe words, to the Statute of 37 Ed. III. cap. 8. (meaning chapter the 18th,) where the words, by the Law of the Land, (ſays he,) are rendered, without due proceſs of law, &c. which he farther explains, towards the end of the ſame ſentence.— That is, (ſays he,) by indictment or, preſentment of good and lawful men, WHERE SUCH DEEDS BE DONE, in due manner, or by Writ-Original of the Common-Law.

Theſe laſt are the expreſs words of another Act of Edw. III. (viz. 25 E. III. c. 4.) Item, Whereas it is contained in the Great Charter of the Franchiſes of England, that none ſhall be impriſoned, nor put out of his Freehold, nor of his Franchiſes nor free Cuſtom, unleſs it be BY THE LAW OF THE LAND: It is accorded, aſſented, and ſtabliſhed, that from henceforth none ſhall be taken, by petition or ſuggeſtion made to our Lord the King, or to his Council, unleſs it be by Indictment or Preſentment of his good and lawful People OF THE SAME NEIGHBOURHOOD WHERE SUCH DEEDS BE DONE, in due manner, or by Proceſs made by writ-original at the Common Law. Nor that none be put out of his Franchiſes, &c. unleſs he be DULY brought in anſwer, and forejudged of the ſame BY THE COURSE OF THE LAW. And if any be done againſt the ſame, it ſhall be redreſſed and HOLDEN FOR NONE. 25 Ed. III. c. 4. wherein they are given as an explanation of the words, by the Law of the Land, mentioned in the Great Charter. And the Great Charter itſelf, as well as this particular Act, and many other excellent Acts of K. Ed. III. is expreſsly cited and confirmed in an Act of the 16th Cha. I. c. 10. whereby the "due Proceſs of the Law" (or the ordinary Courſe of the Law, ſee ſect. v.) is again re-eſtabliſhed, in oppoſition to the unlawful authority that had been uſurped by the King, Privy-Council, and Star-Chamber.

This "due Proceſs of the Law," therefore, can be no otherwiſe than by a legal Jury of 12 credible men,

In preſentia duodecim fide dignorum virorum FACTO VICINORUM, de quo agitur, et circumſtantiis ejus: qui et noſcunt eorundem teſtium mores, maxime ſi VICINI ipſi fuerint noſcunt etiam, et ſi ipſi ſint credulitate digni, &c. Forteſcue de Laud. Leg. Ang. c. 28, p. 64. See alſo the 25 and 26th chapters of that excellent little book.

who are Neighbours to the Fact, and unexceptionable to the parties concerned, according to the ancient Cuſtom or Law of the Land. Item per antiquam Legem, et conſuetudinem Regni, omnes exitus quae emergent in aliqua Curia de Recorde infra Regnum, niſi pauci de quibus non eſt hic neceſſe tractandum, debet triari per xii. liberos et legales homines DE VICINETO, &c. qui nulli partium ulla affinitati attingent. Doct. & Stud. c. 7. p. 26 b. And that the ſame is alſo a fundamental and eſſential Right of the Subject, every man, who pretends to doubt of it, may be informed by the feelings of his own breaſt, if he will only take the trouble, for a moment, to ſuppoſe himſelf in ſuch a ſituation, (through the falſe accuſations of his enemies,) that nothing but an impartial Trial, by a Jury of Neighbours, well acquainted with him and his caſe, and the malignity of his accuſers, can poſſibly ſave him from deſtruction! And farther, it is apparent, that the ſaid due Proceſs of the Law, by a Jury de vicineto, is now become an unalterable part of the Conſtitution, and muſt ever remain in force, not only againſt all contrary Reſolutions and Opinions of the Judges, (ſuch as I have mentioned,) but even againſt the expreſs authority of any Act of Parliament that happens (inadvertently) to have been made to the contrary, becauſe all ſuch muſt neceſſarily BE HOLDEN FOR NONE, according to the 42. Ed. III. c. 1. which is cited by Judge Jenkins for that purpoſe:Jenkinſius Redivivus, p. 65. and, though it may be alledged, againſt the authority of this Act of Parliament, that another Act may unbind what it has bound, according to the maxim, eodem modo quo quid conſtituitur, eodem modo diſſolvitur: yet a due conſideration of this very maxim will afford us a ſubſtantial argument to the contrary: for, at the time the ſaid Act was made, (viz. in the 42. Ed. III.) the Great Charter had been expreſsly confirmed by many Parliaments, not only in the reigns of that noble king's anceſtors, but alſo by at leaſt TWELVE preceding Parliaments

And Parliaments at that time were preſerved in purily and independence by a very frequent renewal of THE POPULAR REPRESENTATION, viz. every year once, and MORE OFTEN if (there was) need, &c. which I have already proved in pages 160 to 170 of this Declaration; ſo that there was not then the leaſt room even for the bare ſuſpicion of undue influence!

even in his own glorious reign; ſo that the Parliament, in his 42d year, had certainly ſufficient authority to add, to their confirmation of the Charters, that, if ANY STATUTE be made to the contrary, that ſhall be HOLDEN FOR NONE. And the reaſon is plain; for no Statute whatever (eodem modo conſtituitur) is ordained by ſo great Authority as that which Magna Charta has at length acquired, by the expreſs confirmation, from time to time, of ſo many different Kings and Parliaments:

In the time of Sir Edward Coke the Charters had been expreſsly confirmed by THIRTY-TWO DIFFERENT PARLIAMENTS, as he himſelf witneſſes in the Proeme of his 2d Inſtitute: The ſaid 2 Charters (ſays he) have been confirmed, eſtabliſhed, and commanded to be put in execution, by 32 ſeveral Acts of Parliament.

The wiſdom of ages has made it venerable, and ſtamped it with an authority equal to the Conſtitution itſelf, of which it is, in reality, a moſt eſſential and fundamental part; ſo that any attempt to repeal

Though ſome particular articles of Magna Charta are indeed rendered uſeleſs, at this day, by ſubſequent Statutes, yet this affords no argument againſt the general ſtability of the Charter, with reſpect to its main object, the Freedom of the People. It is a Charter of Liberties, and therefore the ſubſequent Statutes, which enlarged thoſe Liberties, (by annihilating the ſeveral oppreſſive cuſtoms which are mentioned therein and limited within certain bounds, as Knights Service, Eſcuage, Wards, and Liveries, &c.) cannot be ſaid to operate againſt the Charter, but rather in aid of it; for though the ſaid oppreſſive Tenures and dangerous Prerogatives are permitted by the Charter in a certain degree, yet the apparent intention of the ſeveral articles, wherein they are mentioned, was not to eſtabliſh, but only to reſtrain them, as much as the circumſtances, temper, and prejudices of thoſe early times would permit: ſo that the Statutes, which afterwards entirely removed the oppreſſion, cannot be eſteemed contrary to the purpoſe of the Charter, becauſe they enlarged thoſe Liberties and Franchiſes of the people, to which the Charter itſelf is ſo apparently dedicated.

it would be treaſon to the ſtate! This glorious Charter muſt, therefore, ever continue unrepealed: and even the articles, which ſeem at preſent uſeleſs, muſt ever remain in force, to prevent the Oppreſſions and Prerogatives, there named, from being extended beyond certain limits, in caſe the ſame ſhould ever hereafter be revived. No ſingle Act of Parliament can unbind or remove the limits here laid down: nothing leſs than the ſame accumulated Authority, by which the Charter is now eſtabliſhed, can poſſibly ſet it aſide, or any part of it, according to the Maxim before recited, eodem modo quo quid conſtituitur, eodem modo diſſolvitur: for no ſingle Act of Parliament, eodem modo conſtituitur, is ordained in the ſame manner. The many repeated confirmations of its authority were a work of ages; ſo that the ſaid authority cannot legally be ſet aſide, unleſs it be done eodem modo quo conſtituitur, that is, by the repeated ſuffrages of as many Parliaments againſt it as have already expreſsly confirmed it; and God forbid that any ſuch groſs depravity and corruption ſhould ever obtain ſuch a continuance in this kingdom, as to accompliſh ſo great an evil; for that could not be without a total national reprobacy, dangerous to us not only in this world, but alſo in the next!

It muſt, therefore, be obvious to every perſon, who duly conſiders all theſe circumſtances, that the Reſolutions of ALL THE JUDGES IN ENGLAND, in the caſes of Orurke, or Ornicke, the Iriſhman, and Sir John Perrot, were contrary to a FUNDAMENTAL LAW in the Great Charter, and conſequently ought to be "HOLDEN FOR NONE," according to the expreſs determination of the Parliament, in the 42d Ed. III. c. 1.

Viz. That the Great Charter, and the Charter of the Foreſt be holden and kept in all points; and if any Statute be made to the contrary, THAT SHALL BE HOLDEN FOR NONE.

and ought to be VOID IN THE LAW and HOLDEN FOR ERROUR, according to the ſecond chapter

It is aſſented and accorded, for the good governance of the Commons, that no man be put to anſwer, without Preſentment before Juſtices, or matter of Record, or by DUE PROCESS AND WRIT ORIGINAL, according to the OLD LAW OF THE LAND (which I have already proved to ſignify, in an eſpecial manner, the Trial by a Jury of the Vicinage); and if ANY THING, from henceforth, be done to the contrary, it ſhall be VOID IN THE LAW and holden for Error.

of the ſame excellent Statute; becauſe the two Acts of Parliament, of the 33 and 35 H. 8. on which they grounded their opinion, cannot have any legal force, (notwithſtanding the literal meaning of the general expreſſions therein,) when applied to offences committed in any country, province, or colony whatſoever, that is ſubject to the imperial crown of Great-Britain: ſo that even if Ireland had been eſpecially named therein, the ſaid Acts would have been ſo far from binding that kingdom, (according to the effect ſuppoſed by Lord Coke, Judge Vaughan, Judge Blackſtone, and others,) that the very NAMING Ireland, for ſuch purpoſes as were intended by the ſaid Acts, would have rendered them abſolutely "NULL AND VOID," and to be "HOLDEN FOR NONE," becauſe they would, in that caſe, have been directly contrary to the Great Charter; whereas, at preſent, there are ſome particular caſes (as I have before remarked) wherein they may, perhaps, be allowed a legal force.

Now, though what I have already remarked will probably be thought a ſufficient Anſwer to the two Reſolutions of all the Judges in England, cited by Lord Coke as precedents againſt the Liberties of our brethren, the ſubjects of IRELAND, I am nevertheleſs inclined to add one more teſtimony againſt the ſaid Reſolutions, which has no leſs authority than that even of Lord Coke himſelf (in another part of his writings) againſt all ſimilar Reſolutions and Opinions!

Let him now bear witneſs both againſt the ſaid Judges and himſelf!And albeit, Judgements in the King's Courts (ſays he) are of high regard in Law, and judicia are accounted as juris-dicta, yet it is provided, by Act of Parliament, that if any Judgement be given contrary to any of the points of the Great Charter or Charta de Foreſta, BY THE JUSTICES, or by any other of the King's Miniſters, &c. it ſhall be undone and HOLDEN FOR NOUGHT. Proeme to his 2d Inſtitute.

If Lord Coke, when he mentioned the BINDING IRELAND in the Parliament of England, "BY SPECIAL WORDS," (4th Inſt. p. 350.) and BY BEING ESPECIALLY NAMED, (Calvin's Caſe, 7th Rep. p. 447.) had meant nothing more than what is clearly proved by his one example for all, beforementioned, (viz. that a Repreſentation of the Subjects in Ireland ought to be ſummoned to the Engliſh Parliament, whenever an Act of Parliament ſhall be made in England (eſpecially) concerning the Statute of Ireland,) there would have been no eſſential difference between his Opinion and that natural Juſtice for which I contend: but, alas! that great man has confirmed his error upon that ſubject in another part of Calvin's Caſe, (p. 446,) wherein he declares that albeit IRELAND was a diſtinct dominion, yet, THE TITLE THEREOF BEING BY CONQUEST, the ſame by judgement of law might by expreſs words be bound by Act of the Parliament of England. Here he has luckily given us another reaſon, which leads us to the detection of his error. — "Yet" (ſays he) THE TITLE THEREOF BEING BY CONQUEST, &c. Now, it is very remarkable, that ſo many of the moſt eminent law writers ſhould have copied and adopted this erroneous opinion, without examining the force of it; as if the authority and real worth of this learned Writer, in other reſpects, were ſufficient to render valid a miſtaken and groundleſs argument! Judge Jenkins, indeed, has adopted the opinion without quoting the reaſons; but Judge Vaughan, who has alſo adopted the opinion, refers us expreſsly to Lord Coke's reaſon againſt Ireland, viz. the title by conqueſt. That it is a CONQUERED KINGDOM (ſays he) is not doubted, but admitted IN CALVIN'S CASE, ſeveral times, &c. Vaughan's Rep. p. 292. And, upon the ſtrength of this reaſon, he proceeds very confidently to determine what things the Parliament of Ireland cannot do, and to give inſtances of Laws made in the Parliament of ENGLAND binding IRELAND; p. 293. of which neither the firſt

A Law concerning the Homage of Parceners, called, "Statutum Hiberniae," 14 Hen. III. — "Mr. Cay" (ſays the Hon. Mr. Barrington) very properly obſerves, that 'IT IS NOT AN ACT OF PARLIAMENT,' and cites the old Abridgement, title Homage. He allows it a place, however, in his edition of the Statutes, not to differ from former editors. This, in ſome meaſure, gives the authority of Legiſlation (ſays this learned Gentleman, ironically) to the King's Law-Printers: and yet, if ſuch an ordinance is inſerted in every edition of the Statutes, for near 3 centuries together, by printers known to print under the authority of the King's Patent, and the Parliament permits this for ſuch a length of time, it becomes a queſtion of ſome difficulty to ſay what force it may have acquired. No ſuch queſtion fortunately can ever ariſe upon this Statute, as it is merely a RESCRIPTUM PRINCIPIS to certain Milites (Adventurers, probably, in the Conqueſt of Ireland, or their Deſcendants) who had doubts with regard to the Tenure of lands holden by Knights Service and deſeending to Co-parceners within age, &c. Obſervations on the more ancient Statutes, p. 39.

nor the ſecond

A Statute of Nottingham, called Ordinanatio pro Statu Hiberniae, 17 E. I. — Upon which the Hon. Mr. Barrington remarks: It is very ſingular (ſays he) that, though this Ordinance hath found a place amongſt the Engliſh Acts of Parliament, the Collection of Iriſh Statutes, printed by authority at Dublin, begins only with the Ordinances of Kilkenny, in the 3d year of Edward the 2d. There can be no doubt, however, that this Law extends to Ireland, if not repealed by ſome Iriſh Act of Parliament; as, by Poyning's Law, in the time of Henry the Seventh, all precedent Engliſh Statutes are made to bind in Ireland. Ib. p. 141 . Nevertheleſs I muſt beg leave to obſerve, that this is neither an Engliſh nor an Iriſh Statute, but a mere Letter-Patent of the King, by the Aſſent of his Council (though it might be dated, perhaps, during the ſittings of a Parliament at Nottingham): — Edward, par la grace de Dieu, Roy Dengliterre, Seignor Dirland, &c. — a toutes ceux, que ceux Letters verront ou oiront, ſalutes. Saches que a le mendement de gulement de noſtre terre Dirlande, a pluis grand peax et tranquill. de noſtre people en cel terre a Notin. as octaves del St. Martin, &c. par aſſent de noſtre Counſell illonques, &c. This is not the ſtile of an Act of Parliament; neither is the Aſſent of the common Council, or general Council expreſſed, but only "by the Aſſent of OUR COUNCIL," that is, the King's Council, which is always underſtood to ſignify the Privy-Council, and not the national Council. Beſides, the King expreſsly calls this Ordinance, OUR LETTERS-PATENT, and witneſſed it as ſuch, in the uſual form, viz. En teſmoignance de quel choſe nous avons fait faire CESTES NOUS LETTERS OVERTES. Done a Notyngham le 24 jour de Novembre, lan de noſtre reigne dix ſeptiſme. Secunda Pars Veterum Statutorum, printed ann. 1555, p. 68 & 69.

are in the leaſt intitled to the name of Laws made in the Parliament of England, though they are printed in the Statute-Books.

This ſeems alſo to be the caſe with the 3d voucher which he has produced for his aſſertion, viz. Laws for IRELAND, made by E. 3, per adviſamentum Concilii noſtri, &c. That is if he meant the Laws contained in the Ordinance of that King's 31ſt year, viz. Ordinatio facta pro Statu Terrae Hiberniae; becauſe this Ordinance is no more intitled to the name of a Law, or Act of Parliament, than the two former; for, long before this period, the neceſſity of expreſſing the Aſſent of the Commons, in order to render an Act valid, was well underſtood, as the Hon. Mr. Barrington remarks, on the 14th of Ed. III. "The Statutes now begin to appear" (ſays he) in a new, and more regular form; &c. whilſt the Preamble, IN EVERY INSTANCE, makes expreſs mention of the CONCURRENCE OF THE COMMONS, p. 218 ; whereas this Ordinance has no ſuch mention of their "CONCURRENCE," but only the Aſſent of the Council, that is, the Aſſent of the King's Council — "de aſſenſu conſilii noſtri ordinanda duximus," &c. whereas the Aſſent of the great Council of the Nation is expreſſed in very different terms, as I have remarked in the former notes, as alſo in the notes on pages. 128 and 129.

But if this learned Judge meant any other Laws "for IRELAND, made by Edward III." than this Ordinance of his 31ſt year, (for he refers us, in the margin, to the Parliament-Rolls of his 5th year,) yet the ſame cannot afford the leaſt proof or precedent for binding Ireland in England without Aſſent, becauſe I have already cited ample teſtimony that the Parliament of Ireland in thoſe days was frequently ſummoned to England, ſometimes to confer with the Engliſh Parliament; and ſometimes to meet the King and his Council: in diſtinct Seffions of the Iriſh Legiſlature. See pages 66 to 80.

His fourth voucher adds no more confirmation to his aſſertion than the three former; for though it is really an Act of Parliament, yet it cannot be produced as a precedent for binding the Iriſh Subjects without their Conſent, becauſe it is made expreſsly for the purpoſe of enforcing an Act of the Iriſh Parliament, "Eſtatute "fait en la terre d' Ireland;" and therefore, as the queſtion relates only to the carrying the ſaid Law into execution, which is properly the office of the King and his Courts, it is certainly indifferent whether be is adviſed therein by his Privy-Council or by his Common-Council of England, eſpecially as the latter, in the caſe before us, were ſo far from adviſing the King to invade or alter the Iriſh Law, that they confirm it in the ſtrongeſt terms — que le di Eſtatute eſtoiſe EN SA ENTIER FORCE, et que bien et duement ſoit gardez et PLEINEMENT EXECUTE, &c.

With reſpect to his 5th voucher, referring us to "the late Acts made in 17 Car. 1," &c. it would be very unfair to draw from thence any concluſions unfavourable to the Privileges of the Iriſh Parliament, becauſe that was the fatal year of the popiſh maſſacre in Ireland, when the Proteſtant Subjects of that kingdom were almoſt univerſally oppreſſed, and all Law and Regularity overturned by the open Rebellion of the popiſh party: ſo that even the Parliament of Scotland (as well as the Parliament of England) thought it right to take the affairs of Ireland under their conſideration at that unfortunate juncture; and ſent two Commiſſioners, properly inſtructed by the States of that kingdom, to treat with the Engliſh Parliament about the means of ſuppreſſing the Iriſh Rebellion. Sir John Temple's Hiſtory of the Iriſh Rebellions p. 156 to 158.

But notwithſtanding that ſome Acts might have been made in the 17th of Charles I. without the Aſſent of the Iriſh Parliament, yet they afford no evidence in favour of that opinion for which they are cited by the learned Judge; for Mr. Molyneux has proved that, by the repeal of thoſe very Acts of 17 Cha. I. that they afford an argument even on the other ſide of the queſtion, viz. that the Parliament of IRELAND may repeal an Act made in ENGLAND in relation to the affairs of IRELAND, p. 75.

And again, with reſpect to the 6th and laſt voucher, under that head, (viz. the reſolution of the Judges in the Exchequer-Chamber, in the caſe of the Merchants of Waterford,) it by no means relates to the queſtion in diſpute; for that concerns only the exportation and importation of goods, and the Iriſh do not pretend to conteſt the Right of Great-Britain to the Dominion of the Seas; nor do they deny the Power of the Britiſh Parliament to regulate Commerce, as I have before remarked. Now, as it appears that not one of theſe Precedents is ſufficient for the purpoſe propoſed, and as we cannot doubt but that ſo learned a Lawyer as Judge Vaughan (as I have before obſerved of Judge Coke) would ſelect the moſt applicable Precedents that could be found, the doctrine which he has built upon theſe inſufficient Precedents muſt neceſſarily fall to the ground.

Amongſt the modern writers, who have likewiſe unfortunately adopted the ſame erroneous opinion of Lord Coke, the learned Judge Blackſtone is the moſt eminent, and therefore demands the moſt careful examination.

In the introduction to his Commentaries, p. 101, he hath delivered his ſentiments much to the ſame effect as the other more ancient writers, already mentioned. — That no Acts of the ENGLISH Parliament, ſince the twelfth of King John, extended into that kingdom, (Ireland,) unleſs it were SPECIALLY NAMED, or INCLUDED UNDER GENERAL WORDS, ſuch as WITHIN ANY OF THE KING'S DOMINIONS, &c. And in page 103 he repeats the ſame doctrine, that no Acts of the Engliſh Parliament made ſince the 10th Hen. VII. do now bind the people of Ireland, unleſs SPECIALLY NAMED or INCLUDED UNDER GENERAL WORDS.

For this incluſive Power, of GENERAL WORDS, Judge Black ſtone refers us to Lord Coke's 12. Rep. 112. but I ſhall take no pains to refute any error in that laſt Collection of his Reports, "which are well known" (ſays the honourable Mr. Barrington, p. 161) not to be of equal authority with thoſe that precede. And beſides, I have already demonſtrated, (I hope,) in my Comment on the Caſes of Orurke, the Iriſhman, and Sir John Perrot, (as alſo by the clear and deciſive Reſolution of the worthy Judges, Wray and Dyer, and the Attorney General Gerrard, for reſtraining the GENERAL WORDS of four expreſs Acts of Parliament,) that all ſuch general Words, in Statutes, muſt be duly reſtrained by a legal Conſtruction, if the Judges, who enforce them, mean to avoid the Riſk of exemplary puniſhment!

And in the ſame paragraph he aſſigns the very ſame reaſon (drawn from the Conqueſt of Ireland) which had miſled both Lord Coke and Judge Vaughan before him. And, on the other hand, (ſays he,) it is EQUALLY CLEAR, that, where Ireland is particularly named, or IS INCLUDED UNDER GENERAL WORDS, they are BOUND by ſuch Acts of Parliament. (though I hope I have already made the contrary appear EQUALLY CLEAR.) For this follows (ſays he) from the very nature and conſtitution of a DEPENDENT STATE: dependence being very little elſe but an OBLIGATION TO CONFORM TO THE WILL OR LAW OF THAT SUPERIOR PERSON OR STATE

The Iriſh do not pretend to deny a legal Dependence on the ſuperior State of England, for they acknowledge that the Sovereignty of their Iſland is inſeparably annexed to the Crown of England, of which, I believe, I have already quoted ſome examples: but, when Dependencs is defined (in the manner Judge Blackſtone repreſents it) as an Obligation to conform to the Will or Law of the ſuperior Perſon or State, &c. it ceaſes to be a legal Dependence, according to the common Law and Conſtitution of England; though the learned Judge is certainly right enough, if he will be pleaſed to confine his Definition of Dependence to thoſe Countries where the civil Law prevails, as in France or Pruſſia for inſtance; becauſe, in ſuch deſpotic Realms, the oppreſſed People ſeem, indeed, to acknowledge an Obligation to conform to the Will or Law of the ſuperior Perſon or State; and the learned Commentator, if he meant to refer to the Laws of ſuch enſlaved People as theſe, muſt certainly be allowed to have delivered his meaning in the moſt expreſſive and judicious terms that he could poſſibly have choſen for ſuch a purpoſe; for, in ſpeaking of "the Will" of that ſuperior Perſon or State to which he ſuppoſes an Obligation to conform, &c. he mentions it as a ſynonimous term to the word "Law," viz. "Will or Law," ſays he, that is, an Obligation to conform to the Will or Law of that ſuperior Perſon or State, &c. which is, indeed, a moſt lively deſcription of the dangerous unlimited Power of the French, Pruſſian, or Imperial, Adminiſtrations of Government; for, whereſoever theſe two words, WILL and LAW, are conſidered as ſynonimous, there Law muſt, of courſe, be any thing (be it ever ſo wicked or iniquitous) that the Superior pleaſes; that is, in ſhort, Quod Principi placuit Legis habet Vigorem! But I have already held up that deteſtable Maxim of the civil Law to the view of my Readers; and therefore I ſhall now only remark, in general, that neither the LAWS of England nor the LAWS of Ireland acknowledge and ſuch Precept as the ſetting up the WILL of a Superior for LAW; or, (what is the ſame thing,) they do not acknowledge any ſuch ſtate of "Dependence" as an OBLIGATION to conform to the "WILL OR LAW" (thoſe ſynominous Terms) of the ſuperior Perſon or State, &c.

Our Laws, indeed, acknowledge the King of Great-Britain for the time being as the "Superior" or Head of both Kingdoms; but the "Dependence," which is thereby required of "the Inferior," (whether the term, Enferior, he applied to the inferior Kingdom as ſubordinate, or to Perſons, viz. to each Individual as a Subject,) in either caſe, is a politic or legal "Dependence," and not abſolute and unlimited. Principatu namque nedum REGALI, ſed et POLITICO, ipſe ſuo populo dominatur. The Laws leave no room to ſuppoſe that there is "an Obligation to conform to the WILL or LAW" (if the latter has no other foundation than the Will) of that ſuperior Perſon. Nam non poteſt Rex Angliae AD LIBITUM SUUM Leges mutare Regni ſui. Principatu namque nedum REGALI, &c. as above. (Forteſcue de Laud. Leg. Angliae, c. 9. p. 25 b.) And, if even the King's Power is not regal, but politic and limited, (which the ſame learned Writer, Chancellor Forteſcue, has clearly proved in a diſtinct Tract, expreſsly on that ſubject, intitled, The Difference between abſolute and limited Monarchy,) much leſs can the King's Subjects be ſaid to exerciſe a Sovereign's legiſlative Power (1. Com. p. 101) over any Nation or People whatſoever, that have no ſhare in the ſaid Power by a due Repreſentation of their own collective body: for the ſovereign Majeſty of the People ought never to be exerted, except in their own neceſſary defence, or to maintain the natural Rights and equitable Privileges of Mankind, againſt Tyrants and Oppreſſors, for the good of Society in general, through that diſintereſted evangelical Principle, "Good-will towards men." But when, on the contrary, any particular Nation or People exerts that "ſovereign legiſlative Power" to deprive another different Nation of their natural Rights and Liberties, they no longer deſerve to enjoy their own; and, indeed, divine JUSTICE will inevitably overtake them ſooner or later; for, as the crimes of individuals will ſurely be puniſhed with perſonal condemnation, ſo national ſins muſt feel the additional Weight of temporal national Retribution; which, I truſt, I have demonſtrated in a little Tract, intended ſometime or other for Publication, intitled, The Law of Retribution, and, in particular, of God's temporal Vengeance on Slaveholders

upon which the inferior depends.
And then he immediately adds: The original and true ground (ſays he) of this Superiority, in the preſent caſe, is what we uſually call, though ſomewhat IMPROPERLY, (very "IMPROPERLY" indeed,) "THE RIGHT OF CONQUEST:" &c. Now, I moſt heartily join with him in his application of the adverb "IMPROPERLY" to the words which follow, viz. "THE RIGHT OF CONQUEST," whenever it is mentioned as a reaſon to juſtify this claim or imaginary right of binding the people of Ireland, either by being ſpecially named or included under general words; for I hope I ſhall convince that learned gentleman himſelf, as well as the reſt of my readers, before I conclude, that THE RIGHT OF CONQUEST is not the original and true ground of any ſuch ſuperiority, in the preſent caſe, as he ſuppoſes; but, on the contrary, that it ſeems rather to have been "the original and true ground" of all the dangerous miſtakes which have been made, upon this important queſtion, by Lord Coke, Judge Vaughan, and himſelf: for, if this learned gentleman will be pleaſed to review this argument, founded on "the Right of Conqueſt," as applied by himſelf and the other two very eminent Writers, beforementioned, to the free kingdom of Ireland, I truſt (through the great opinion I entertain of his candour and good ſenſe) that he will readily give it up; for, though the Right of Conqueſt may be, as he ſays, a Right allowed by THE LAW OF NATIONS, if not by that of Nature, (that is, in ſome particular caſes,) yet it certainly is contrary both to "the Law of Nations" and "that of Nature," (to which he has appealed,) that "the Right of Conqueſt" ſhould be pleaded for binding the Conquerors themſelves, or their Deſcendants, without their Aſſent! for of ſuch conſiſt the greateſt part of the landed intereſt in Ireland, at this day, who are entitled to all the Rights and Liberties of the ANCIENT CONQUERORS by inheritance and lineal deſcent: — Titles ſo juſt and ſacred, that I am ſure Judge Blackſtone will never perſiſt in oppoſing them; eſpecially when he ſees hereafter by what authority I make this aſſertion: Nay, the Right of Conqueſt is ſo bad a plea to extenuate the iniquity of exerting any ſuch oppreſſive and unlimited power, that it fails in Reaſon and in natural Juſtice, even when applied as an excuſe for oppreſſing the conquered; — much leſs therefore can it affect the Liberties and natural Rights of the Conquerors themſelves!

That theſe Liberties and natural Rights of the conquerors are entailed upon a very great part (if not the moſt numerous, at leaſt the moſt conſiderable in point of rank and fortune) of the preſent inhabitants of Ireland, is a point, I believe, which cannot be conteſted; for Judge Blackſtone himſelf has declared in a preceding page, 99: — That the inhabitants of IRELAND are, FOR THE MOST PART

The following Extract, from Sir Wm. Petty's Political Survey of Ireland, will corroborate this juſt Remark of Sir William Blackſtone.— The Britiſh Proteſtants and Church have three-fourths of all the Lands, five-ſixths of all the houſing, nine-tenths of all the houſing in walled towns and places of ſtrength, two-thirds of the foreign trade, &c. p. 27.

, deſcended from the ENGLISH, who planted it as a kind of COLONY, after the Conqueſt of it by King Henry the Second, &c. and conſequently "THE MOST PART" of the ſaid Inhabitants ought to be conſidered as ſtanding in the place of the Conquerors, rather than of the Conquered, ſo that if the Reaſon aſſigned by theſe three learned men has any weight, viz. that ſome degree of ſuperiority is acquired by Right of Conqueſt, it muſt be allowed, that "THE MOST PART of the ſaid Inhabitants are equally intitled to it, in Right of their conquering Anceſtors; for it would be highly injurious to deprive them of their hereditary Privileges, which deſcend to them from the actual Conquerors themſelves.—And, on the other hand, it would be equally unjuſt, wicked, and impolitic, to make any partial diſtinction between them and the deſcendants of the conquered Iriſh, who, after many years ſtruggle, are now, at laſt, happily incorpotated and blended with them as one free People!

Having now examined the opinions of the moſt eminent Writers, that have favoured this Notion of a Right in the Britiſh Parliament to bind the Subjects of Ireland "when eſpecially named," I truſt it will appear, to every impartial Reader, that ſuch doctrine is ſo far from having any real foundation to ſupport it, that it is really diametrically oppoſite to ſome of the moſt eſſential foundations of Law, and is apparently ſubverſive of one of the firſt principles of the Britiſh Conſtitution! ſo that it will be needleſs for me to take notice of any thing that has been ſaid to the ſame purpoſe by inferior Writers, or by the Editors or Collectors of Law Dictionaries, &c. who have only quoted theſe great authorities which I have already demonſtrated to be erroneous; and I may therefore, I hope, be now allowed to repeat with double ſatisfaction and certainty what I before aſſerted only upon general Principles in the firſt Part of this Declaration, viz. that the true conſtitutional mode of CONNECTING Britiſh Dominions, that are otherwiſe ſeparated by NATURE, is demonſtrated by the eſtabliſhed example of the union of GREAT BRITAIN and IRELAND, which by long experience has proved to be ſufficiently effectual, p. 21.

But, notwithſtanding that I have already been led to a tedious length of argument by the neceſſary examination of ſo many authors, I muſt beg leave ſtill to add ſome general remarks upon the above-mentioned groundleſs argument drawn from the Right of Conqueſt; for Judge Blackſtone has been equally unguarded in what he has laid down concerning the American Colonies in p. 107. of the ſame volume, where he has made a very improper uſe of this ſame miſtaken notion about the Right of Conqueſt.

"Our American Plantations" (ſays he) "are principally of this latter ſort," (viz. conquered or ceded countries, of which he was treating in the preceding ſentence,) "being obtained" (ſays he) in the laſt century, either by RIGHT OF CONQUEST, and driving out the Natives, (with what natural Juſtice I ſhall not at preſent enquire,) or by Treaties. And therefore (ſays he) the COMMON LAW OF ENGLAND, as ſuch, has no ALLOWANCE or authority there; they being no part of the mother Country, but diſtinct (though dependent) Dominions. But, when he reconſiders this part of his work, I truſt he will allow that the COMMON LAW of England is principally founded on Reaſon, natural Juſtice, and the eternal Laws of God; and conſequently all that part of the COMMON LAW, which ariſes from theſe foundations, MUST HAVE allowance or authority, not only there (viz. in the Engliſh Colonies) but every where elſe, if the unjuſt pretenſions of Tyrants were to be duly reſtrained by Law and Equity: and, with reſpect to the remaining part of the COMMON LAW, conſiſting in ancient and approved uſages and cuſtoms, peculiar to Engliſh Subjects, he will not be backward, I truſt, to grant them alſo "allowance or authority there," when he is reminded that theſe conquered Countries are not inhabited by the conquered People, but chiefly by Britiſh Subjects, ſucceſſors to the Conquerors, who are entitled by Birth-right to the Common Law of England, and every other privilege of Engliſhmen, quite as much as thoſe Engliſh Subjects mentioned by him at the top of the ſame page. "For it hath been held," (ſays he) that if an uninhabited country be diſcovered and PLANTED BY ENGLISH SUBJECTS, ALL THE ENGLISH LAWS THEN IN BEING, which are the BIRTH-RIGHT OF EVERY SUBJECT, are immediately THERE IN FORCE. 1 Com. p. 107. This doctrine is unqueſtionable; and the more ſo becauſe allowed by himſelf: And though he has been pleaſed to add, that this muſt be underſtood with very many and very great reſtrictions; that ſuch Coloniſts carry with them only ſo much of the Engliſh Law, as is applicable to their own ſituation, &c. yet it muſt be apparent that, if they "carry with them" any Laws at all, it moſt be by virtue of their natural Right as Engliſhmen, whereby they are certainly as much entitled to all; (I mean all the Engliſh Laws that were in being when theſe ſeveral Colonies reſpectively were eſtabliſhed;) and therefore, though they uſed (in the infant ſtate of each Colony) only ſo much of the Engliſh Law as was applicable to their own ſituation, (and it is abſurd to ſuppoſe that they would uſe more, whether intitled to it or not,) yet this does not affect their undoubted Right to the whole; which Right deſcends to poſterity and ſucceſſors in the ſame manner as all other inheritances; it being, indeed, their very beſt inheritance

Judge Blackſtone himſelf has called it in the the very ſame page "the Birth-Right of every Subject."

: And Equity ſurely entitles the increaſing Colonies (continually as occaſions may ariſe from their improvements) to the uſe and benefit of all beneficial Laws which were in force at the time of their anceſtors emigration.

That theſe, however, muſt be underſtood with ſome "Reſtrictions," cannot be denied;—as the Laws of "Revenue," (for inſtance,) which the learned Gentleman himſelf has mentioned: for theſe were merely local, and cannot therefore be legally enforced in any new Dominions without the expreſs Aſſent or Grant of the Inhabitants in ſuch new Dominions, the ſame being abſolutely neceſſary to give them a local effect within the ſaid Dominions: becauſe nothing but the free Grant and Aſſent of the Inhabitants and Landholders gave them force, originally, even in the mother Country; and, therefore, nothing but the like authority (that is, the free Grant of the Inhabitants upon the ſpot wherever they are introduced) can poſſibly render them legal, juſt, and binding in any other part of the world; ſo that it muſt neceſſarily appear, that no new acquired Territories, ſettled by Britiſh Subjects, can legally be taxed by Engliſh Acts of Parliament, nor be bound thereby in their internal Government without ſuch manifeſt injuſtice and iniquity as muſt neceſſarily render null and void all ſuch pretended Acts; for, otherwiſe, if they were admitted, they would render all the temporal hereditary poſſeſſions and property of the Subjects in the Colonies entirely uncertain, which is one of the moſt odious circumſtances in the eye of the Law that can be mentioned. "Quod certum eſt retinendum eſt, quod INCERTUM EST dimittendum: Nay, quod INCERTUM EST NIHIL EST:" This is the cenſure of Law upon all the Acts of Men which fall under the judgement of the Law. If then THE LAW ſo judge of the Acts of Men, HOLDING THEM FOR NOUGHT and VOYDE that are INCERTAINE; how much more then doth THE LAW REQUIRE CERTAINTY in her own Acts, which are to bind all Men. The Liberty of the Subject againſt the pretended Power of Impoſitions, by Wm. Hakewil, 1641.

I have been the more particular (as well here as upon Orurke's caſe beforementioned) in expreſſing the neceſſity of reſtraining the Power of Parliament within the bounds of Reaſon, Juſtice, and natural Equity, becauſe, I find, it is too common an error that an Act of Parliament is omnipotent, and that whatever is ordained by Parliament muſt be Law, without any exception of Right or Wrong, White or Black, Truth or Falſehood! which, God be thanked, is very far from being true, though the learned Commentator Judge Blackſtone, upon the very ſame point, (the Omnipotence of Parliament) has unguardedly ſaid, True it is, that what the Parliament doth, no Authority upon earth can undo. 1 Com. p. 161 . But that worthy Gentleman needs only to be reminded, that if it ſhould unfortunately happen, from any overſight or miſunderſtanding, that what the Parliament doth is in the leaſt contrary either to the Laws of Reaſon, Nature, pure Morality, natural Equity and Juſtice; or to that Benevolence

This Benevolence, or due Conſideration for the natural Rights of all mankind is properly called Jus Gentium, the Law of Nations

The Law of Nations ſeems to be almoſt baniſhed at this time from Europe. The late felonious and arbitrary Diviſion of Poland between three of the greateſt Powers in Europe: The late iniquitous attempts againſt the antient Republic of Venice and the Swiſs Cantons, and the late unjuſt Claims upon the free Cities of Dantzick, Hamburgh, &c. The Robberies and horrid Murders which, for theſe ten years paſt, have been committed by the French on the poor wretched Inhabitants of the little Iſland of Corſica, upon pretence of an unlawful Ceſſion of Sovereignty from the Genoeſe; and the like abominable Iniquity, upon the like falſe pretence, lately carried on, even by the Engliſh themſelves, againſt the poor helpleſs Charibbs at St. Vincent's:—are melancholy Proofs, either that the Europeans in general are moſt profoundly ignorant of the Law of Nations, or that they are fallen into a ſtate of the muſt abandoned Wiekedneſs and P ofligacy.

which univerſal Law (as likewiſe ALL THE OTHER HEADS above-mentioned) is neceſſarily included in what is commonly called natural Religion, conſiſting of the primary or eternal Laws of God; and whatſoever is contrary to any of theſe is "MALUM IN SE," which no authority on earth can make lawful; (ſee note in p. 185 & 186.) and men of all ranks, and in all places, that have Common Senſe, are naturally qualified to diſtinguiſh whether Laws are deficient in any of theſe reſpects, or are contrary to Reaſon; for the LAW OF REASON in an univerſal Law— Scribiturque HAEC LEX in corde CUJUSLIBET HOMINIS, docens cum quid aegendum, et quid fugiendum, (for which the learned Author quotes the Epiſtle to the Romans, chap. 2, and then proceeds) et quod LEX RATIONIS in corde ſcribitur, ideo deleri non poteſt, nec etiam recipit mutationem ex loco nec tempore, ſed ubique ET INTER OMNES HOMINES ſervari debet. Nam JURA NATURALIA IMMUTABILIA SUNT, et ratio immutationis. eſt quod recipiunt Naturam rei pro fundamento, quae ſemper eadem eſt et ubique. Doct. et Stud. cap. 2 . Any Acts of Parliament, therefore, which are contrary either to Nature, to Juſtice, to Morality, or to Benevolence, &c. are contrary to REASON, (that Ray of the divine Nature, and ſupreme Law,) and conſequently are null and void, being mere Corruptions, (corruptelae,) and not Laws; for "contra eam" (Rationem) non eſt praeſcriptio vel appoſitum ſtatutum ſive conſuetudo; et, ſi aliqua fiat, NON SUNT STATUTA, ſive Conſuetudines, ſed CORRUPTELAE, &c. Doct. et Stud. p. 5. b.

and Conſideration which we owe, not only to our brethren and countrymen, but alſo to our brethren of the univerſe, by the ties of nature; or, 2dly, if contrary to the written Laws of God;

Secundum fundamentum legis Angliae eſt LEX DIVINA, &c. And if any Act of Parliament is in any degree contrary to the divine Law, it has no force in the Laws of England. Suppoſe, for inſtance, an Act of Parliament ſhould be made, to prohibit or annul the marriages of any particular rank or order of men whatſoever; the ſame muſt neceſſarily be eſteemed null and void of itſelf; becauſe the Principle, attempted to be eſtabliſhed by ſuch an imaginary Act, is ſo directly contrary to the Laws of God, that we may ſafely rank it with the "DOCTRINES OF DEVILS.;" (ſee notes on pages 133 & 134.) which, indeed, every Act of Parliament ought to be eſteemed that is in any degree contrary to the holy Scriptures, (the written Laws of God,) or contrary to Reaſon, (the eternal Law of God)— Etiam ſi ALIQUOD STATUTUM eſſet editum contra cos, NULLIUS VIGORIS in legibus Angliae cenſeri debet, &c. Doct. et Stud. c. 6.

or, 3dly, if contrary to any of the fundamental Rights and Franchiſes declared in the Great Charter;

Of this I have already given ſufficient examples in pages 178 to 208.

or, 4thly, if contrary to TRUTH; (that is, if any Act be made upon partial information or groundleſs ſuggeſtions, which ſhall have occaſioned a miſrepreſentation of TRUTH in the recital of facts;)

"Contra veritatem nihit poſſumus." And again, Contra veritatem lex nunquam aliquid permittit. 2 Inſt. 252 . Plowden has reported a variety of caſes wherein Acts of Parliament were eſteemed vaid in Law, through the want of truth in the recitals: ſee pages 398 to 400. — Et iſſint Parliament puit miſprender choſe, et Statutes que MISRECITE CHOSES, et ſont referre a eux, SERRONT VOID, et null ſerra conclude per eux. Iſſint en notre principal caſe, le ſtatut que recite le plaintiff fuit attaint, et confirme ceo, ou en fail il ne fuit attaint, SERRA VOIDE.

if, in any of theſe points, it ſhould unfortunately happen (I ſay) that what the Parliament doth is really defective, or made contrary thereto, the ſame ought to be "HOLDEN FOR NONE!" There needs "no authority upon earth" to undo what is ſo done, for it is null and void of itſelf, notwithſtanding the united authority of King, Lords, and Commons! And, whenever any Acts have been thus in advertently or too haſtily made, the moſt honourable method of getting rid of them is, by the ſame authority, to declare them null and void, and not merely to repeal them, becauſe the latter is not a ſufficient reparation to injured juſtice and truth; for, as all men are fallible, it is diſingenuous and highly diſhonourable, in any man, or body of men whatſoever, not to acknowledge a miſtake or error, when the ſame is fairly demonſtrated!

The power and juriſdiction of the Parliament, for making of Laws, &c. is NOT therefore ſo tranſcendent and abſolute that it cannot be confined, either for cauſes or perſons, (as ſuppoſed by Lord Coke, 4 Inſt. p. 36,) within any bounds, ſince the juſt bounds and limits of it are ſo very clearly defined, as well as the due bounds of regal Power, that they fall within the judgement of every man who has COMMON SENSE to diſtinguiſh GOOD from EVIL, or RIGHT from WRONG; ſo that the imaginary OMNIPOTENCE OF PARLIAMENT is not only (as Judge Blackſtone has declared) "a figure rather too bold;" but even totally falſe and unjuſt; becauſe the Parliament is manifeſtly limited, (as all powers on earth muſt be,) and CANNOT do every thing that is not NATURALLY impoſſible; though Judge Blackſtone ſuppoſes it can (1 Com. p. 161.) for the Power

— "Quia illa poteſtas" (poteſtas Juris) folius Dei eſt; poteſtas autem injuriae diaboli, et non Dei; et cujus horum opera fecerit rex, ejus miniſter erit cujus opera fecerit. Igitur, dum facit juſtit am, vicarius eſt Regis aeterni; miniſter autem diaboli, dum declinet ad injuriam, &c. Bracton, lib. 3, c. 9, p. 107 b.

OF RIGHT (or Juſtice) alone is of GOD; but that of WRONG (or Injury) is of the DEVIL; and the works of whichſoever of theſe the King (or any other man) ſhall do, of the ſame ſhall he be eſteemed the ſervant.

Know ye not that, to whom ye yield yourſelves ſervants to obey, his ſervants ye are, to whom ye obey? whether of ſin unto death, or of obedience unto righteouſneſs. &c. Rom. vi. 16.

So that "the Powers that be" cannot bind the conſcience when they exceed juſt limits, any more than the threats of a lawleſs Banditti; and therefore we may truly ſay of all the Branches of the Legiſlature together, (I mean their united authority,) what the ingenious Mr. Sadler ſaid particularly concerning the Houſe of Commons; viz. When they are FREEEST, they have LIMITS; for they be not infinite. Nay, when they are MOST FREE, they are MOST BOUND to GOOD ORDERS, and to RICHT-REASON. Sadler's Rights, p. 135.

It would be happy for this kingdom if all Members of Parliament were ſenſible of theſe indiſpenſible limitations; and therefore, though I have thought it my duty to oppoſe what Judge Blackſtone has unfortunately allowed concerning the imaginary OMNIPOTENCE OF PARLIAMENT, yet I think myſelf bound moſt heartily to concur with him in what he has mentioned in the ſame page — That it is a matter moſt eſſential to the liberties of this kingdom, that ſuch members be delegated to this important Truſt, as are moſt eminent for their probity, their fortitude, and their knowledge; for it was a known apophthegm of the great Lord Treaſurer Burleigh, "that England could never be ruined but by a Parliament, &c.

But, before I conclude this 2d part of my Declaration, it may, perhaps, be expected that I ſhould apologize for the tedious length of it; and yet, when my Readers conſider that it was neceſſary for me to anſwer the aſſertions of ſome of the moſt eminent Law Writers that this nation, perhaps, ever produced, they will not think their time ill ſpent (I hope) in following me through this minute examination of the ſaid aſſertions, eſpecially as they relate to the moſt important points of the CONSTITUTION and COMMON LAW of England and Ireland.

And I hope, alſo, that my Readers will not charge me with preſumption, for having, in the courſe of this argument, oppoſed the opinions of ſuch very reſpectable Writers as Baron Puffendorf on THE CIVIL LAW, and the Judges Coke, Vaughan, Jenkins, and Blackſtone, and the Hon. Mr. Barrington, on THE LAWS OF ENGLAND. If my Remarks ſhould, in any part, be thought too ſevere, I am ſorry for it; I can only aſſure my Readers that the leaſt perſonal diſreſpect is not intended; for I am ſufficiently ſenſible of my own unworthineſs and too ſuperficial knowledge in all things; and have, therefore, moſt carefully avoided any doctrine which may ſeem to reſt merely upon the weak foundation of my own opinion; but, whereever I have ventured to diſſent, from the opinions of theſe approved writers, I have aſſigned plain reaſons for it, or other proper authorities, and I deſire to be truſted no farther than theſe plain reaſons and authorities will fairly warrant. I hope I may be permitted to uſe the ſame apology for pointing out miſtakes in the opinions of theſe very learned writers which the Hon. Mr. Juſtice Barrington has applied particularly to the Inſtitutes and Reports of Sir Edward Coke; which "being" (ſays he) the beſt LAW-CHART, and implicitly truſted to, it is proper to take notice of every ſhoal and rock miſplaced, though perhaps not in the proper track of navigation, p. 91.

GRANVILLE SHARP.
LEX plus laudatur quando RATIONE probatur. Co. Lit. Epil. Poſt varios caſus, poſt tot diſcrimina rerum, Nunc ſequitur concluſio. (Soli) "DEO GLORIA ET GRATIA." Jucunda eſt praeteritorum laborum memoria. 2 Inſt. Epil.