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 [Page 2]fairly warrant; and such only are re­ferred to in the following Declaration of the Natural Right of popular Repre­sentation in the legislature.

‘Amongst all the rights and privileges appertaining unto us,’ (said that truly noble lawyer, Lord Sommers,) ⁽¹⁾. ‘that of having a Share in the Legislation, and being to be governed by such laws as we ourselves shall chuse, is the most fundamental and essential,’ as well as the most advantageous and beneficial, &c.

And as all British subjects, whether in Great-Britain, Ireland, or the Colo­nies, are equally free by the law of Na­ture, they certainly are equally entitled to the same Natural Rights that are essential for their own preservation; because this privilege of ‘ having a share in the legis­lation’ is not merely a British Right, pe­culiar [Page 3]to this island, but it is also a Na­tural Right, which cannot, without the most flagrant and stimulating injustice, be withdrawn from any part of the British Empire by any worldly authority whatso­ever; because, ‘by the natural Law, whereunto he [ALMIGHTY GOD] hath made all subject,’ (says the learned Hooker,) ⁽²⁾ ‘the lawful power of making laws, to command whole po­litic societies of men, belongeth so pro­perly unto the same entire societies, that for any Prince or Potentate, of what kind 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 [Page 4]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,) [Page 5]are represented ⁽³⁾ by the votes of the respective proprietors; since every Free­holder has a Right to vote; so that, in this one respect, the Representation is general; and, though far from EQUAL, would still be a sufficient check against arbitrary power, and afford sufficient se­curity for the lives and property of those persons who have no Vote, if the laws against parliamentary corruption (and es­pecially that Act of 7 and 8 Wil. III. c. 4.) were duly enforced; and also if all persons, who are entrusted with the disposal of public Money, were required to render a strict account of it, and to be severely punished whenever convicted of exerting the influence of the public trea­sury against public liberty; which is the most baneful treachery and dishonesty that men in office (who are the servants [Page 6]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 [Page 7]the precipice.’ ⁽⁴⁾ It is manifest, therefore, that the constitutional govern­ment of England, even with all its de­fects, is infinitely better than any other form of government whereby the people are deprived of their just share in the le­gislature; ⁽⁵⁾ so that the Inequality of Representation in this island affords no [Page 8]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 [Page 9]ought to be deprived entirely of their natural Rights and Liberties, merely be­cause our own liberties are not entirely perfect! or because our own Representa­tion in the Legislature appears, in some few respects, to be defective! and it would be quite as unreasonable to alledge, that the principle or reason of the maxim before quoted ( viz. that Law, to bind all, must be assented to by all) is unjust and inconclusive, merely because it would be very difficult to accomplish it literally by the express assent of every individual! But it is clearly sufficient that the maxim be construed to signify that delegated as­sent of the people by a majority of their legal Representatives, which is constitu­tionally necessary to make all laws bind­ing; ⁽⁶⁾ and such a legal Representa­tion [Page 10]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) ⁽⁷⁾ ‘that Free­men [Page 11]should not have the free disposal of their own effects;’ — and whatever is iniquitous can never be made lawful ⁽⁸⁾ by any authority on earth; not even by the united authority of King, Lords, and Commons; for that would be con­trary to the eternal ⁽⁹⁾ Laws of God, which are supreme. ⁽¹⁰⁾

In every point of view, the making laws for the subjects of any part of the British Empire, without their participa­tion and assent, is INIQUITOUS, and there­fore [Page 12] unlawful: for though the purport of any law, so made, be in itself per­fectly just and equitable, yet it becomes otherwise ⁽¹¹⁾ (that is, unjust and ini­quitous, and therefore unlawful) by the want of these necessary legal Formali­ties ⁽¹²⁾ of Representation and Assent: for if the inhabitants of one part of the empire might determine a question, or enact a law, for the peculiar advantage only of that one 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, [Page 13]even to a fundamental maxim, ⁽¹³⁾ viz. ‘It is INIQUITOUS for any one to be a Judge in his own cause.’ Par­tiality is, therefore, such an abomination in the eye of the law, that no Power on earth can make it LAWFUL: for ‘even an Act of Parliament’ (says the learned Judge Hobart, Rep. 87.) ‘made a­gainst NATURAL EQUITY, as to make a man judge in his own case,’ (the ex­ample, observe, is the very point in ques­tion) " is VOID in itself;" for ‘jura na­turae sunt immutabilia,’ and they are "leges legum."

Every King of England (apparently for the same reason) is restrained by the Law from changing or making new Laws ‘without the assent or consent of his WHOLE KINGDOM in Parliament ex­pressed. [Page 14] ⁽¹⁴⁾’ 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:’ ⁽¹⁵⁾ for ‘turpis est pars quae non convenit cum suo toto; (Plowden, 161.)’ and ‘nihil in lege in­tolerabilius est, eandem rem diverso jure censeri. 4 Co. 83.’ The free Representation of the people in the legis­lature is, therefore, to be esteemed, of all our Rights, the most essential, (as Lord Sommers has declared,) to maintain that excellent Equilibrium of power, or mixt government, limited by law, which our [Page 15]ancestors have always most zealously as­serted, and transmitted to us, as our best Birthright and Inheritance; ⁽¹⁶⁾ so that every attempt to set the same aside in any degree, or in any part of the empire, or to corrupt it by undue influence of places and pensions, or bribes with public mo­ney, is Treason against the Constitution; the highest of Treason: ⁽¹⁷⁾ and there­fore [Page 16]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 [Page 17]power to give up the ancient and esta­blished Right of the people to be repre­sented in the legislature; because an Act for so base a purpose would entirely sub­vert the principles and constitution on which the very Existence of the legisla­ture itself, which ordained it, is formed! so that such an unnatural Act of the state would be parallel to the crime of felo de se in a private person; and, being thus contrary to ‘ the nature of things, can never be rendered valid by any Authority whatsoever.’ ⁽¹⁸⁾ And in­deed it is laid down as a maxim, by the great Lord Sommers, that ‘no man 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 [Page 18]power to part with. P. 26.’ And if a politic society has no just power to de­liver up even its own preservation, it cer­tainly has much less right to deliver up the necessary preservation of other so­cieties of their brethren and friends (not represented among them) without their Consent: and all such attempts must neces­sarily be deemed void and ineffectual, be­cause ‘there is no necessity to obey, where there is no authority to ordain.’ ⁽¹⁹⁾ For as it so clearly appears, from what has been said, that Natural Equity does not permit even the inferior Property of lands, goods, chattels, or money, to be alienated without the consent or fault of the proprietors, much less can it permit the alienation, annulling, or changing, of our most valuable inheritance, the Law, without the due assent and consent of the [Page 19]heritors themselves, the People at large, or their lawful Representatives in their respective assemblies or parliaments! ⁽²⁰⁾ This is a necessary conclusion of reason and common-sense; drawn from the effect and force of Natural Equity, even in cases of much less consequence ( viz. respecting goods and common pecuniary property); so that the distinction, which some great and able politicians have lately made, between Taxation and Legislation, (in the late disputes about taxing the Co­lonies,) was certainly erroneous, though well intended; since it plainly appears, that the right of Legislation is not less [Page 20]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 ⁽²¹⁾ [Page 21]be ever made lawful? The true consti­tutional mode of connecting British Do­minions, that are otherwise separated by Nature, is demonstrated by the esta­blished example of the Union of Great-Britain and Ireland, which by long ex­perience has proved to be sufficiently ef­fectual. It must be acknowledged, in­deed, that an Act of Parliament was made in the 6th of K. George I. chap. 5. wherein it is laid down, that ‘the King and Parliament of Great-Britain may make Laws to bind Ireland.’ ⁽²²⁾ But, [Page 22]as it does not appear that the Parliament of Ireland ever acknowledged or gave [Page 23]any formal Assent to the said Act, the same must necessarily be considered as a [Page 24] 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 ⁽²³⁾ 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; [Page 25]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 [Page 26]Crown of Great-Britain, and detached (as Ireland is) from this island, ought to be and have been esteemed, from the first establishment of our colonies, the only proper and constitutional Legisla­ture for each province respectively; ⁽²⁴⁾ because the Representation of the People, in every part of the British Empire, is absolutely necessary to constitute an ef­fectual Legislature, according to the fun­damental principles of the English Con­stitution; for none of them, separately, [Page 27]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, [Page 28]and the abomination of domestic ⁽²⁵⁾ as well as political Slavery abolished!

On the other hand, it is not only Trea­son against the Constitution to attempt to deprive any free British Subjects of their natural Right to a Share in the Legis­lature, ⁽²⁶⁾ but it is equally derogatory and injurious to the Authority of the Crown; ⁽²⁷⁾ because a King of Eng­land [Page 29]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 [Page 30]is already lawful:’ ⁽²⁸⁾ so that no Power on earth is tolerable without a just limitation; and Law, which ought to be supreme, ⁽²⁹⁾ cannot subsist where Will and Pleasure are absolute, whether it be the Will of one, of a few, or of many. ⁽³⁰⁾

A King, therefore, who presumes to act without the constitutional limitation, destroys the foundation of his own au­thority; for the most respectable and most ancient writer on the English Con­stitution assures us, that ‘ there is no King where Will rules,’ (or is obso­lute,) [Page 31]"and not Law." ⁽³¹⁾ The same doctrine is expressed still more clearly in the old Year Books, ⁽³²⁾ that, ‘if there was no Law, there would be no King, and no inheritance.’

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

And therefore the fatal consequences of proceeding to enforce the execution of any Acts, or Resolutions, for the es­tablishing [Page 32]such unlimited and unlaw­ful ⁽³³⁾ Government, is more easily con­ceived than expressed; because ‘the condition of all subjects would be a­like, whether under absolute or limited Government, if it were not lawful ⁽³⁴⁾ to maintain and preserve those limita­tions, since Will and Pleasure, and not Law, would be, alike in both, the mea­sure of obedience; for, to have liberties and privileges, unless they may be de­fended, and to have none at 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.’

A DECLARATION OF THE People's Natural Right to a Share in the Legislature, &c. PART II.
[Page 51]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 [Page 52]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, [Page 53]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 ⁽¹⁾:’ [Page 54]And though the Doctrine is unconstitu­tional and dangerous, if admitted in a ge­neral unlimited sense ⁽²⁾; yet, in justice to Judge Hussey, it must be allowed, that his Declaration was certainly right with respect to the particular case then before [Page 55]him, which related to the exportation of goods from Waterford: for, the Irish sub­jects themselves do not deny the juris­diction of Great-Britain upon the high Seas, nor in matters of external ⁽³⁾ com­merce, though the English power, even in that respect, may sometimes perhaps have been extended farther than reason and equity can fairly warrant. 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 [Page 56]a preceding term ⁽⁴⁾; which accounts for the remark of the Reporter, that this opi­nion [Page 57]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 [Page 58]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 ⁽⁵⁾, without paying the least regard to that just distinction between the external and internal Government of Ire­land, which the other Judges had before so clearly laid down and confirmed by an unanswerable reason ⁽⁶⁾ why the Irish [Page 59]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 ⁽⁷⁾ case, in the 19th of Hen. VI. which was readily admitted at the same time by Judge Portington, and (for any thing that appears to the contrary) agreeable also to the opinion of all the other Judges that were then present; for, Sir Richard Bolton remarks, that this was not ‘de­nied by Markham, Yelverton, and [Page 60]Ascough ⁽⁸⁾’ Sir John Fortescue had declared, that, ‘if a tenth or fif­teenth [Page 61]were granted here, this should not bind those of Ireland, even though [Page 62]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, [Page 63]and they shall be bound by it.’ And to this point Judge Portington expressly declared his assent ⁽⁹⁾, "Jeo veux bien" (says he) and then assigns the incontes­tible reason, "pur ceo," because they (the Irish subjects) ‘ have no summons with us to come to Parliament.’

But Lord Coke has unfortunately ne­glected to weigh the importance of this just Reason, and consequently has been led to misconstrue the doctrine to which it has at different times been applied by the Judges; for, in Calvin's Case, (7th Rep. p. 447.) he cites the opinion of the Judges in 2d Rich. III. 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 [Page 64]send Knights to (our) Parliament;’ but he adds, in a parenthesis, that ‘this is to be understood, unless they be espe­cially named ⁽¹⁰⁾’. Thus he is so far from perceiving the weight of the Reason assigned by the former Judges, that he has ventured to set it aside (as if it had no meaning at all) by the insertion of an arbitrary parenthesis in the middle of the sentence, without assigning a stronger Reason, or even any Reason at all for his authority; and therefore, we are certain­ly bound to prefer the Declaration of the other Judges, who founded their opinion on a clear legal Reason, that has never yet been disproved; for ‘the REASON of the Law is the Life of the Law’ ⁽¹¹⁾.

[Page 65]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 [Page 66]Coke, that English Statutes bind in Ire­land when "especially named," I have yet another Authority to add, which must needs turn the scale, being no less than the testimony even of Sir Edward Coke himself upon this very point! Let his own words judge him.

He informs us, in his 4th Inst. cap. 76. p. 350. that ‘sometimes the King of England called his Nobles of Ire­land to come to his Parliament of Eng­land,’ &c. and, after reciting the form of the Writ used on such occasions ⁽¹²⁾, he adds—"an excellent President"—(says he) ‘to be followed whensoever any, Act of Parliament shall be made in England concerning the Statute of Ireland,’ &c.

[Page 67]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, [Page 68]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,) [Page 69]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, ⁽¹³⁾ of Writs being issued even to Peeresses, who, in their own right, held lands in Ireland, and of these no less than nine, to summon them to send Representatives, or proper persons, to confer with the Parliament; ‘ad mit­tendum fide dignos ad colloquium.’ [Page 70]And consequently if Lord Coke's Doc­trine (for which he has cited these ex­amples) had, in those early times, been current, viz. that ‘by special words the Parliament of England may bind the Subjects of Ireland,’ it is apparent, that the same could not have been un­derstood in any other light than that of including a due representation of the Irish Parliament within the Parliament of England; which the examples them­selves sufficiently demonstrate ⁽¹⁴⁾: And [Page 71]that this was really the case, is clearly proved by some other English records, cited by Mr. Mollyneux, in his Case of Ireland, pp. 73, and 74. whereby it appears, that even ‘Knights of the Shires, Citizens, and Burgesses, were elected in the Shires, Cities, and Boroughs, of Ireland, to serve in Par­liament in England’ ⁽¹⁵⁾; which an­cient [Page 72]privilege of the Irish Commoned has either been unknown, or also over­looked [Page 73]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 [Page 74]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 ⁽¹⁶⁾.’ The Business of his attendance, however, does not appear; but on whatever account he might attend the Privy Council, he was [Page 75]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 [Page 76]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 ⁽¹⁷⁾, wherein mention is made of [Page 77]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 [Page 78]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 ⁽¹⁸⁾ whether Ireland be " especially named" or not; because the just reason of objection, before cited from the Judges in the 19th of Henry VI. and 2d Richard III. no longer sub­sists when a due Representation is al­lowed.

[Page 79]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 [Page 80]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 ⁽¹⁹⁾, setting [Page 81]forth ‘how, and by what means the Laws and Statutes of England from [Page 82]time to time came to be of force in Ireland;’ and it is undeniable, that [Page 83]the Irish Parliament have in general thought it necessary to examine, and to authenticate by the express assent of their own assemblies, such English Statutes as they judged proper to be admitted as Law within their own Island; of which Sir Richard Bolton has produced a great variety of examples ⁽²⁰⁾, some general, [Page 84]and some particular, made at different periods of time, from the 13th of Ed­ward [Page 85]II. to the Reign of King Charles I. the time when he wrote, and of these [Page 86]examples not less in number than eighteen, which surely are sufficient to prove the [Page 87]uniform sense of the Irish Parliament upon this point in every age since they received the English Law.

[Page 88]Of the general examples which he has cited, that in the 10th of Hen. VII. (one of Poining's Acts) whereby all the [Page 89]English Statutes then in force were adopted by the Irish, is the most re­markable; and it is necessary to take par­ticular notice of this Act, because the ef­fect of it is frequently misunderstood; for some have supposed, that hereby ‘all the Statutes, made in the Parliament of England concerning the public, should be observed in Ireland,’ without obser­ving any farther distinction ⁽²¹⁾; as if [Page 90]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 [Page 91]of such English Statutes only as were of prior date; which effect is confirmed also by a resolution of the Judges, in the 10th of James, cited by Lord Coke in the same page ⁽²²⁾; and he has like­wise 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 [Page 92]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.’ ⁽²³⁾ Sir Richard Bolton also [Page 93]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 [Page 94]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 [Page 95]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, [Page 96]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 ⁽²⁴⁾, agreeing in all the Chapters with our Magna Charta, was separately granted to [Page 97]the King's Subjects of Ireland, without distinction, in the first year of King Hen­ry III. so that all the Subjects of Ireland, (the conquered Irish not excepted,) from that very early period, and even soon­er ⁽²⁵⁾, were as much entitled to English [Page 98]Liberty, and all the Immunities and Be­nefits of the English Common Law, as the Inhabitants of England themselves: and yet Lord Coke himself, it seems ⁽²⁶⁾, was not aware of this Circumstance, but [Page 99]"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,’ [Page 100]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 [Page 101]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’ ⁽²⁷⁾. The Irish Na­tion [Page 102]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 [Page 103]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 [Page 104]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 ⁽²⁸⁾. But none of his Authorities [Page 105]afford the least shadow of Evidence for the latter part of his Assertion, viz. the Power of the English Parliament over [Page 106] 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 [Page 107]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, [Page 108]and freely accepted by their own express assent and desire. ⁽²⁹⁾

[Page 109]But let us suppose that, in some such declaratory Act, they had reason to think [Page 110]the English Exposition improper, and should therefore choose to confirm their [Page 111] own sense of it by the Authority of their own Parliament, surely the latter would [Page 112]be binding in Ireland, and not the English Statute, as Serjeant Mayart supposes; [Page 113]for there is no example of an Irish Act of Parliament being set aside by the Autho­rity [Page 114]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 [Page 115]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 [Page 116]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 [Page 117]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 [Page 118]the Nature and Tendency of that Law which has so lately received the solemn Sanction even of our own Legislature, ⁽³⁰⁾ [Page 119]as being proper to be renewed and en­forced in a certain Province of the Bri­tish Empire! And the Hon. Mr. Jus­tice Barrington, in his Observations on the ancient Statutes, has also, in just abhorrence of the French Law, cited several "Fundamental Maxims" ⁽³¹⁾ of it, ‘upon which the King's Prero­gative is founded, which’ (as he justly remarks) ‘may not only be mat­ter of some curiosity to an Englishman, [Page 120]but, by comparison, may make him thankful for the noble Constitution to which he is happily born. A Cappa­docian’ (says he) ‘;may indeed re­fuse, from custom and long usage, to exchange a despotic for a more free Government; but I can never be per­suaded’ (says this benevolent Gentle­man) ‘but that there is a necessary con­nexion between Slavery and Misery, and between Freedom and Happiness. Se­neca’ (says he) ‘nobly inforces the communication of Liberty to the Sub­ject, from the Safety it procures to the King: ⁽³²⁾ Errat si quis existimat tu­tum esse ibi Regem, ubi nihil a Rege tutum est; securitas securitate mutuâ paciscenda est. p. 179.’ Now, this [Page 121]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.

[Page 122]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; ⁽³³⁾ [Page 123]as by Poining's Law, in the time of Henry the Seventh, all PRECEDENT ⁽³⁴⁾ ENGLISH STATUTES are made to bind in Ireland.’ And he remarks thereupon, in a note, that ‘ subsequent Statutes only bind if Ireland is men­tioned; as for Wales, (continues he,) all Statutes are now made to extend to it, whether mentioned or not, by a clause inserted in the middle of 20 Geo. II. cap. xlii.’ &c. But the true reason why this doctrine may be applied to Wales with propriety and 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 [Page 124]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 [Page 125]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 ⁽³⁵⁾ (for I cannot properly call it [Page 126]a Statute) de malefactoribus in Parcis into Ireland, with an order to the Chief-Justice [Page 127]of Ireland, to enforce it: and he remarks thereupon: — ‘This note fully [Page 128]proves’ (says he) ‘that it was supposed the King, by his sole authority, could [Page 129]then introduce any English Law; and will that authority’ (says he) ‘be [Page 130]lessened by the concurrence of the two Houses of Parliament?’ But [Page 131]this by no means invalidates the justice of Mr. Molyneux's argument, while the [Page 132]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 [Page 133]this even without any exception or just distinction concerning external or inter­nal Government; for the Irish themselves [Page 134]do not deny the propriety of the pre­tension in the former case. The exer­tion [Page 135]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!

[Page 136]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 [Page 137]with their unlawful counsels; but it by no means "shews" that such an arbi­trary proceeding was really Law at that time, any more than it is at present! for the very same volume of Rymer's Foe­dera, ( viz. tome xviii.) that contains the above-mentioned precedent, contains also other precedents of the like autho­rity, ‘ which equally shew that it was then imagined the King could tax’ EVEN ENGLAND ITSELF ‘ by his Prerogative, without the intervention of Parliament.’ — See ‘A Declaration of his Majes­ty's cleere intention in requiring the ayde of his loving subjects in that way of Loane ⁽³⁶⁾ which is now intended by his Highness. Tome xviii. p. 764.’ [Page 138]Nay, "it was then imagined," (it seems,) by those disloyal persons who falsely cal­led [Page 139]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: ⁽³⁷⁾ [Page 140]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 [Page 141]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 [Page 142]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 [Page 143]thence with respect to the present ques­tion, ( viz. the pretension to bind Ireland without Representation or Assent;) because it affords as good an argument, as the o­thers above-mentioned, for binding even England itself, without any Representa­tion or Assent at all, since the said Legisla­ture (as it is called) was totally defec­tive in every point that is essentially ne­cessary to constitute an English Legisla­ture; for (besides the total suppression of the legal Rights of the Crown to a Share in the Legislature) even the necessary Assent of the whole body of the People was also excluded, since it is evident that neither the Lords nor the Commons of England were represented in that packed junto of Hypocrites which was then cal­led the "English Legislature!" for, after the violent seizure of 41 Members of the House of Commons ⁽³⁸⁾ by the Army, [Page 144]on the 6th of December, 1648, and the forcible exclusion of about [...] more, ⁽³⁹⁾ 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 [Page 145]Service for a few Years ⁽⁴⁰⁾ ( 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 ⁽⁴¹⁾; [Page 146]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 [Page 147] "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 ⁽⁴²⁾ [Page 148]of the former Parliament, as well as of the citizens of London ⁽⁴³⁾ in general, and [Page 149]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 [Page 150]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 ⁽⁴⁴⁾ from December, 1648, to April, 1653, including the year referred to, as above, for the sense of the then "English Legislature" concerning the au­thority of Parliament over Virginia and the other Colonies.

In the beginning of 1653, the artful Cromwell found himself so well esta­blished in his military post of General, or Imperator, of the standing Army, (for such is the original root both of the name and power of Emperors,) that he ven­tured, [Page 151]by dint of his military authority, to turn the despicable mock Legistature out of the Parliament-House ⁽⁴⁵⁾, 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 [Page 152]fulfilling the Will and Pleasure of its mi­litary Constituents: This wretched As­sembly, though in the highest degree despicable in itself, was nevertheless in­vested with sovereign AUTHORITY ⁽⁴⁶⁾ over England, Scotland, and Ireland, by an instrument drawn up expressly for that purpose, and signed by the General (Cromwell) and the principal Officers of the Army; so that we have here an un­deniable precedent for governing Eng­land, Scotland, and Ireland, without the Representation and Assent of the People of any of these Kingdoms; and yet no one will pretend to say, that the same can justify any future attempts to deprive [Page 153]either the people of England, Scotland, or even of Ireland, of their just right to a free and frequent Representation in Parliament. Now, "the English Legislature" of 1653, (for the Title is not less due than it was in 1650,) having continued their sittings for about five months, dissolved them­selves, and returned the instrument of their Sovereignty to the General and his military Council. ⁽⁴⁷⁾ And, two days afterwards, the Council of Officers, by virtue of this devolved authority, which the sham Parliament (of their own cre­ating and appointing) had re-delivered into their hands, were pleased to declare, that, for the future, the Government of the Republick ⁽⁴⁸⁾ (plainly meaning, as [Page 154]appears by the event, not only the sove­reign executive Power, but also the full and supreme legislative Power of the Re­public, or three united Kingdoms, for a certain time) ⁽⁴⁹⁾ should reside in one single person, namely, their own military Commander, General Cromwell, whom they invested with the title and power of Protector of the three Kingdoms. I have thus far pursued the history of those arbitrary times, as well to shew the danger of keeping a standing Ar­my, [Page 155] ⁽⁵⁰⁾ and of permitting a national Militia to become such, ⁽⁵¹⁾ as to de­monstrate [Page 156]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 [Page 157]own doublet,) as " in the year 1650," to which this learned writer has refer­red us; since the authority of the nomi­nal Legislature in 1650 was entirely ille­gal, as well as that in 1653, both of them having been set up and maintained by the same unconstitutional arbitrary power; and both of them totally void of the indispensable Representation of the people: for though the wretched re­mains of the Long-Parliament in 1650 (being about 80 Representatives or Mem­bers, instead of 513 that had been e­lected ⁽⁵²⁾ at the beginning of that Par­liament) [Page 158]were indeed chosen by a small part of the people of England, yet the legal Representation, even of that small part, was out of date and void, from the length of time that the said Representa­tives had continued without Re-election, which was about ten years; whereas it is well known that the due effect, or virtue, of popular Representation, was formerly supposed to be incapable (like some annual fruits) of being so long pre­served in useful purity, without a season­able renewal, ⁽⁵³⁾ from time to time; [Page 159]so that our more prudent Ancestors (imi­tating nature) required also an annual ⁽⁵⁴⁾ [Page 160]renewal of their parliamentary Represen­tation, as being necessary for the mainte­nance of public virtue.

[Page 161]Thus the third Example, given by this learned gentleman, for taxing Ireland and Virginia, &c. without the assent of [Page 162]the respective inhabitants, is manifest­ly illegal; since it must appear, that [Page 163]what he calls ‘ the English Legistature, in the year 1650,’ was totally void of [Page 164]every essential and legal qualification to, render it worthy of so distinguishing a [Page 165]title: but, supposing that ‘the English Legistature, in the year 1650,’ had [Page 166]been a legal and constitutional Parlia­ment, yet the Resolutions he has men­tioned [Page 167]would have been totally illegal, and amount to no more than a mere vain [Page 168]assertion, as void of Law and Reason as it was really of Effect; which is proved [Page 169]by ‘ the ANSWER of the English Legisla­ture,’ at Virginia, (then representing [Page 170] the People of that province,) to the un­reasonable pretensions, beforementioned, of the mock Legislature at London; for [Page 171]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 [Page 172]shall be free from all taxes, customs, and impositions, whatsoever, and none shall be imposed on them WITHOUT CONSENT OF THE GENERAL ASSEMBLY.’ An Appeal, ⁽⁵⁵⁾ &c. p. 29.

I have dwelt much longer upon these three Precedents (cited by the Honour­able Mr. Barrington) against Ireland, than I at first intended; but the several diffe­rent subjects, to which I was naturally [Page 173]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 [Page 174]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, [Page 175]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 [Page 176]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, [Page 177]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 [Page 178]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,’ [Page 179](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 [Page 180]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 [Page 181]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,’ [Page 182]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 ⁽⁵⁶⁾ particu­lar [Page 183]cases wherein they may LEGALLY be enforced, without thwarting any ‘funda­mental Law of the Realm.’

[Page 184]From what has been said, I hope it will appear sufficiently clear to my Read­ers, [Page 185]that the severe censure, which Lord Coke so justly bestowed on the two wick­ed [Page 186]Judges, Dudley and Empson, for ACTING BY THE AUTHORITY [Page 187]OF AN UNCONSTITUTIONAL ACT OF PARLIAMENT, is equally [Page 188]applicable (for the very same reason) to the Resolutions beforementioned, of ‘ALL [Page 189]THE JUDGES IN ENGLAND,’ though Lord Coke himself (even the author of the [Page 190]former censure) has cited them without the least animadversion!

[Page 191]The Judges, in the 33d year of Queen Elizabeth, who gave their opinion in the case of Orurk, ⁽⁵⁷⁾ the Irishman, are the more inexcusable, for their Resolution upon the Act of 33 Hen. VIII. 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 [Page 192]Edward VI. but all others, likewise, that may happen to be equally liable to alter the free Constitution of the realm, and rob the subjects of any essential "fundamental Right," that ought to be esteemed unalienable.

Judge Dyer himself has reported the circumstances of it. He informs us ⁽⁵⁸⁾ that ‘Gerrarde, Chauncelor of Ireland, moved this question to the Queen's Counsel, viz. Whether an Earl or Lord of Ireland, who commits Trea­son [Page 193]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 [Page 194]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. ⁽⁵⁹⁾ For the same Law, which entitles the Nobleman to a Trial by his Peers, ⁽⁶⁰⁾ secures also, to [Page 195]every other person, his parallel Right to a legal impartial Trial, by a Jury of honest unexceptionable NEIGHBOURS: ⁽⁶¹⁾ for a Trial can neither be esteemed legal or im­partial, if the Jury are not impannelled in THE NEIGHBOURHOOD where the offence was committed; ⁽⁶²⁾ unless we may except the single case beforemention­ed, concerning treasonable practices against this Kingdom, carried on by a British Subject in the dominion of a foreign prince; where the Crown of England hath no jurisdiction: but, in all other cases whatsoever, the Trial by a Jury of Neigh­bours to the Fact is the unalienable RIGHT of all British Subjects, according to the [Page 196]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.’

[Page 197]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. [Page 198]c. 4.) ⁽⁶³⁾ wherein they are given as an explanation of the words, ‘ by the Law of the Land,’ mentioned in the Great Charter. And the Great Charter itself, as well as this particular Act, and many other excellent Acts of K. Ed. III. is expressly cited and confirmed in an Act of the 16th Cha. I. c. 10. whereby the "due Process of the Law" (or ‘ the or­dinary Course of the Law,’ see sect. v.) is again re-established, in opposition to the [Page 199]unlawful authority that had been usurp­ed by the King, Privy-Council, and Star-Chamber.

This "due Process of the Law," there­fore, can be no otherwise than by a legal Jury of 12 credible men, ⁽⁶⁴⁾ who are Neighbours to the Fact, and unexceptionable to the parties concerned, according to the ancient Custom or Law of the Land. ⁽⁶⁵⁾ And that the same is also a fundamental and essential Right of the Subject, every man, who pretends to doubt of it, may [Page 200]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 [Page 201]by Judge Jenkins for that purpose: ⁽⁶⁶⁾ and, though it may be alledged, against the authority of this Act of Parliament, that another Act may unbind what it has bound, according to the maxim, ‘ eodem modo quo quid constituitur, eodem modo dissolvitur:’ yet a due consideration of this very maxim will afford us a substantial argument to the contrary: for, at the time the said Act was made, ( viz. in the 42. Ed. III.) the Great Charter had been expressly confirmed by many Parliaments, not only in the reigns of that noble king's ancestors, but also by at least TWELVE preceding Parliaments ⁽⁶⁷⁾ even in his own glorious reign; so that the Parlia­ment, in his 42d year, had certainly suf­ficient [Page 202]authority to add, to their confir­mation of the Charters, that, ‘ if ANY STATUTE be made to the contrary, that shall be HOLDEN FOR NONE.’ And the reason is plain; for no Statute what­ever (eodem modo constituitur) is ordained by so great Authority as that which Mag­na Charta has at length acquired, by the express confirmation, from time to time, of so many different Kings and Parlia­ments: ⁽⁶⁸⁾ The wisdom of ages has made it venerable, and stamped it with an authority equal to the Constitution itself, of which it is, in reality, a most essential and fundamental part; so that any attempt to repeal ⁽⁶⁹⁾ it would be [Page 203]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 [Page 204]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!

[Page 205]It must, therefore, be obvious to every person, who duly considers all these cir­cumstances, that the Resolutions of ‘ALL THE JUDGES IN ENGLAND,’ in the ca­ses of Orurke, or Ornicke, the Irishman, and Sir John Perrot, were contrary to a FUN­DAMENTAL LAW in the Great Char­ter, and consequently ought to be "HOLDEN FOR NONE," according to the express determination of the Parlia­ment, in the 42d Ed. III. c. 1. ⁽⁷⁰⁾ and ought to be ‘VOID IN THE LAW and HOLDEN FOR ERROUR,’ ac­cording to the second chapter ⁽⁷¹⁾ of the [Page 206]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 [Page 207] 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 [Page 208]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’ [Page 209](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, [Page 210]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 ⁽⁷²⁾ nor the [Page 211]second ⁽⁷³⁾ are in the least intitled to the name of ‘ Laws made in the Parliament [Page 212]of England,’ though they are printed in the Statute-Books. ⁽⁷⁴⁾

[Page 213]Amongst the modern writers, who have likewise unfortunately adopted the same [Page 214]erroneous opinion of Lord Coke, the learned Judge Blackstone is the most [Page 215]eminent, and therefore demands the most careful examination.

[Page 216]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 [Page 217]WORDS.’ ⁽⁷⁵⁾ And in the same para­graph he assigns the very same reason (drawn from the Conquest of Ireland) which had misled both Lord Coke and Judge Vaughan before him. ‘ And, on the other hand,’ (says he,) ‘ it is EQUAL­LY CLEAR, that, where Ireland is par­ticularly named, or IS INCLUDED UN­DER GENERAL WORDS, they are BOUND by such Acts of Parliament.’ (though I hope I have already made the contrary appear EQUALLY CLEAR.) ‘ For this [Page 218]follows’ (says he) ‘ from the very na­ture and constitution of a DEPENDENT STATE: dependence being very little else but an OBLIGATION TO CONFORM TO THE WILL OR LAW OF THAT SUPERIOR PERSON OR STATE ⁽⁷⁶⁾ [Page 219] upon which the inferior depends.’ And then he immediately adds: ‘ The original [Page 220]and true ground’ (says he) ‘ of this Superiority, in the present case, is what [Page 221]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 [Page 222]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 [Page 223]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 [Page 224]of Ireland, is a point, I believe, which cannot be contested; for Judge Blackstone himself has declared in a preceding page, 99: — ‘ That the in­habitants of IRELAND are, FOR THE MOST PART ⁽⁷⁷⁾, descended from the ENGLISH, who planted it as a kind of COLONY, after the Conquest of it by King Henry the Second,’ &c. and con­sequently "THE MOST PART" of the said Inhabitants ought to be considered as stand­ing in the place of the Conquerors, rather than of the Conquered, so that if the Reason assigned by these three learned men has any weight, viz. that some de­gree of superiority is acquired by Right of Conquest, it must be allowed, that "THE [Page 225]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 [Page 226]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.’

[Page 227]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. [Page 228]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 [Page 229]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 [Page 230]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 ⁽⁷⁸⁾: And Equity surely entitles the increasing Colonies (continually as [Page 231]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 [Page 232]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 [Page 233]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 [Page 234]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 ⁽⁷⁹⁾ [Page 235]and Consideration which we owe, not only to our brethren and countrymen, [Page 236]but also to our brethren of the universe, by the ties of nature; or, 2dly, if con­trary to the written Laws of God; ⁽⁸⁰⁾ or, 3dly, if contrary to any of the funda­mental Rights and Franchises declared in the Great Charter; ⁽⁸¹⁾ or, 4thly, if contrary to TRUTH; (that is, if any Act be made upon partial information or groundless suggestions, which shall have [Page 237]occasioned a misrepresentation of TRUTH in the recital of facts;) ⁽⁸²⁾ if, in any of these points, it should unfortunately hap­pen (I say) that ‘ what the Parliament doth’ is really defective, or made contrary thereto, the same ought to be "HOLDEN FOR NONE!" There needs "no authority upon earth" to undo what is so done, for it is null and void of itself, notwithstanding the united authority of King, Lords, and Commons! And, whenever any Acts have been thus in advertently or too hastily made, the most honourable method of getting rid of them is, by the same authority, to declare [Page 238]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 [Page 239]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 ⁽⁸³⁾ OF RIGHT (or Justice) alone is of GOD; but that of WRONG (or Injury) is of the DEVIL; and the works of whichsoever of these the King’ (or any other man) ‘shall do, of the same shall he be esteemed the servant.’ ⁽⁸⁴⁾

[Page 240]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 [Page 241]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 [Page 242]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 [Page 243]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.’