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 qua⯑lification for thoſe perſons who under⯑take 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 de⯑clare his ſentiments, as far as plain con⯑cluſions of reaſon and common-ſenſe will [2]fairly warrant; and ſuch only are re⯑ferred to in the following Declaration of the Natural Right of popular Repre⯑ſentation 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 Colo⯑nies, are equally free by the law of Na⯑ture, 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 legiſ⯑lation’ is not merely a Britiſh Right, pe⯑culiar [3]to this iſland, but it is alſo a Na⯑tural Right, which cannot, without the moſt flagrant and ſtimulating injuſtice, be withdrawn from any part of the Britiſh Empire by any worldly authority whatſo⯑ever; becauſe, ‘by the natural Law, whereunto he [ALMIGHTY GOD] hath made all ſubject,’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 po⯑litic ſocieties of men, belongeth ſo pro⯑perly 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 im⯑mediately and perſonally received from God, or elſe by authority derived at the firſt from their conſent upon whoſe per⯑ſons they impoſe laws, it is no better than mere tyranny! Laws they are [4]not, therefore, which public Appro⯑bation hath not made ſo.’ Agreeable to the ſame juſt principles of natural E⯑quity is that maxim of the Engliſh Con⯑ſtitution, that ‘Law, to bind all, muſt be aſſented to by all; (Principia Leg⯑et Aequit. p. 56.)’ and there can be no legal appearance of Aſſent without ſome de⯑gree of Repreſentation.
It muſt indeed be acknowledged, that the Repreſentation of the people of Eng⯑land is not ſo perfect as equity may ſeem to require, ſince very many individuals have no VOTE in Elections, and con⯑ſequently 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, (whe⯑ther they are houſekeepers or lodgers,) [5]are repreſented(3) by the votes of the reſpective proprietors; ſince every Free⯑holder 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 ſe⯑curity for the lives and property of thoſe perſons who have no Vote, if the laws againſt parliamentary corruption (and eſ⯑pecially 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 trea⯑ſury againſt public liberty; which is the moſt baneful treachery and diſhoneſty that men in office (who are the ſervants [6]of the Public, as well as of the King) can poſſibly commit. But, notwith⯑ſtanding 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 Li⯑berty 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 af⯑fords; 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 fol⯑lowing reflection: ‘That, in a govern⯑ment 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 [7]the precipice.’ (4) It is manifeſt, therefore, that the conſtitutional govern⯑ment of England, even with all its de⯑fects, is infinitely better than any other form of government whereby the people are deprived of their juſt ſhare in the le⯑giſlature;(5) ſo that the Inequality of Repreſentation in this iſland affords no [8]juſt argument for ſetting aſide the Repre⯑ſentation of the people in other parts of the Britiſh Empire; becauſe experience teaches us, that even a defective Repre⯑ſentation 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 Em⯑pire [9]ought to be deprived entirely of their natural Rights and Liberties, merely be⯑cauſe our own liberties are not entirely perfect! or becauſe our own Repreſenta⯑tion 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 aſ⯑ſent of the people by a majority of their legal Repreſentatives, which is conſtitu⯑tionally neceſſary to make all laws bind⯑ing; (6) and ſuch a legal Repreſenta⯑tion [10]of the people is therefore abſolutely neceſſary to conſtitute an effectual Legiſ⯑lature for any part of the Britiſh Em⯑pire; for no Tax can be levyed without manifeſt Robbery and Injuſtice where this legal and conſtitutional Repreſentation is wanting; becauſe the Engliſh Law ab⯑hors the idea of taking the leaſt pro⯑perty from Freemen without their free conſent — "It is iniquitous" (‘iniquum eſt,’ ſays the maxim)(7) ‘that Free⯑men [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 con⯑trary 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 participa⯑tion and aſſent, is INIQUITOUS, and there⯑fore [12] unlawful: for though the purport of any law, ſo made, be in itſelf per⯑fectly juſt and equitable, yet it becomes otherwiſe(11) (that is, unjuſt and ini⯑quitous, and therefore unlawful) by the want of theſe neceſſary legal Formali⯑ties (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 ma⯑nifeſt 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 In⯑iquity, [13]even to a fundamental maxim,(13) viz. ‘It is INIQUITOUS for any one to be a Judge in his own cauſe.’ Par⯑tiality 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 a⯑gainſt NATURAL EQUITY, as to make a man judge in his own caſe,’ (the ex⯑ample, obſerve, is the very point in queſ⯑tion) "is VOID in itſelf;" for ‘jura na⯑turae 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 ex⯑preſſed. [14] (14)’ And the whole King⯑dom, even of Great-Britain itſelf, is only a part of the Britiſh Empire; and there⯑fore, 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 in⯑tolerabilius eſt, eandem rem diverſo jure cenſeri. 4 Co. 83.’ The free Repreſentation of the people in the legiſ⯑lature 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 [15]anceſtors have always moſt zealouſly aſ⯑ſerted, 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 mo⯑ney, is Treaſon againſt the Conſtitution; the higheſt of Treaſon:(17) and there⯑fore [16]whatſoever is ordained, that can clearly be proved to be contrary to the conſtitution, muſt be allowed to be fun⯑damentally wrong, and therefore null and void of itſelf; for, ‘ſublato fundamento, cadit opus. (Jenk. Cent. 106.)’ But more particularly the Parliament has no [17]power to give up the ancient and eſta⯑bliſhed Right of the people to be repre⯑ſented in the legiſlature; becauſe an Act for ſo baſe a purpoſe would entirely ſub⯑vert the principles and conſtitution on which the very Exiſtence of the legiſla⯑ture 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 in⯑deed 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 [18]power to part with. P. 26.’ And if a politic ſociety has no juſt power to de⯑liver up even its own preſervation, it cer⯑tainly has much leſs right to deliver up the neceſſary preſervation of other ſo⯑cieties of their brethren and friends (not repreſented among them) without their Conſent: and all ſuch attempts muſt neceſ⯑ſarily be deemed void and ineffectual, be⯑cauſe ‘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 [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 Co⯑lonies,) was certainly erroneous, though well intended; ſince it plainly appears, that the right of Legiſlation is not leſs [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 in⯑jured in their greateſt and moſt valuable inheritance, the Law, by the haſty de⯑ciſions of men on the other ſide of the empire, with whom probably they would be totally unacquainted, and whoſe in⯑tereſt might perhaps be as widely differ⯑ent 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 equita⯑ble? could ſuch notorious Injuſtice (21) [21]be ever made lawful? The true conſti⯑tutional mode of connecting Britiſh Do⯑minions, that are otherwiſe ſeparated by Nature, is demonſtrated by the eſta⯑bliſhed example of the Union of Great-Britain and Ireland, which by long ex⯑perience has proved to be ſufficiently ef⯑fectual. It muſt be acknowledged, in⯑deed, 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, [22]as it does not appear that the Parliament of Ireland ever acknowledged or gave [23]any formal Aſſent to the ſaid Act, the ſame muſt neceſſarily be conſidered as a [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 attri⯑buted to any proceeding, either in the enacting or execution of Laws! and there⯑fore it is to very little purpoſe to cite the ſaid Act as a Precedent for taxing the American Subjects without their Conſent; [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 peo⯑ple'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 Le⯑giſlature of Great-Britain, ſo the King and the People of Ireland are the natu⯑ral 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 diſ⯑tinct province, ſubject to the imperial [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 Legiſla⯑ture for each province reſpectively; (24) becauſe the Repreſentation of the People, in every part of the Britiſh Empire, is abſolutely neceſſary to conſtitute an ef⯑fectual Legiſlature, according to the fun⯑damental principles of the Engliſh Con⯑ſtitution; for none of them, ſeparately, [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 ſeve⯑ral 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 ge⯑nerality 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 ob⯑ſerved, [28]and the abomination of domeſtic (25) as well as political Slavery aboliſhed!
On the other hand, it is not only Trea⯑ſon againſt the Conſtitution to attempt to deprive any free Britiſh Subjects of their natural Right to a Share in the Legiſ⯑lature, (26) but it is equally derogatory and injurious to the Authority of the Crown;(27) becauſe a King of Eng⯑land [29]has no legal Authority to govern by any other mode than that limited go⯑vernment 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 go⯑vernment, 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 [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 au⯑thority; for the moſt reſpectable and moſt ancient writer on the Engliſh Con⯑ſtitution aſſures us, that ‘there is no King where Will rules,’ (or is obſo⯑lute,) [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 eſ⯑tabliſhing [32]ſuch unlimited and unlaw⯑ful (33) Government, is more eaſily con⯑ceived than expreſſed; becauſe ‘the condition of all ſubjects would be a⯑like, whether under abſolute or limited Government, if it were not lawful (34) to maintain and preſerve thoſe limita⯑tions, ſince Will and Pleaſure, and not Law, would be, alike in both, the mea⯑ſure of obedience; for, to have liberties and privileges, unleſs they may be de⯑fended, 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.’
(COPY.) EXTRACT of a LETTER on the foregoing Subject, to a Friend in AMERICA, dated Febru⯑ary 21, 1774.
[33][...]I have alſo ſent you a book lately pub⯑liſhed by Dr. —, reſpecting the go⯑vernment of the Britiſh Colonies.
The reaſon of my ſending the latter is not becauſe I approve of it, or have the [34]leaſt connexion with the author; but, on the contrary, that you and your friends in America may be aware of the uncon⯑ſtitutional doctrines which are thereby propagated amongſt us. I have not, in⯑deed, had opportunity to peruſe it re⯑gularly; neither do I now think it ne⯑ceſſary to do ſo; for I was lucky enough, when I firſt took it up, to turn over a few pages in the fourth part, containing five propoſitions upon the point in queſ⯑tion, whereby the author's ſentiments and intentions may be ſufficiently known without deſcending to his arguments up⯑on them; for not one of them (not even the 5th and laſt, which he himſelf pre⯑fers) can poſſibly be reconciled either to Law, Equity, or ſound Politicks; ſo that if the doctor, with the ſame neglect of Law and conſtitutional Principles, had multiplied his propoſitions to the number of an hundred times five, he would not have been able to lay down a plan or [35]mode of government tolerably ſuitable to the caſe before him; becauſe, in this, as in many other things, there is but, one right, though very many wrong me⯑thods of proceeding; and the doctor has unfortunately forgot to ſtate the only right propoſition upon the ſubject in queſtion, that can be admitted conſiſtently with the neceſſary principles abovementioned of Law, Equity, and ſound Politicks; viz. to do juſtice to our brethren of A⯑merica; that is, to govern them accord⯑ing to the eſtabliſhed Principles of the Engliſh Conſtitution, and known Laws of the Land, and candidly to acknow⯑ledge their unalienable right to the ſame happy privileges by which the liberties of the mother-country have hitherto been maintained; the moſt eſſential of which is the privilege of paying no other taxes than what are voluntarily granted by the people or their legal repreſentatives in general councils or parliaments.
[36]Dr.—is inexcuſable for having o⯑mitted this ſixth Propoſition! for he can⯑not be ignorant of the legal and eſtabliſhed mode of extending the Engliſh Conſtitution to countries detached from this iſland, be⯑cauſe we have a ſtanding precedent and example (which has long ſubſiſted, and has been univerſally allowed) in the preſent government of Ireland; for that iſland, though unjuſtly conquered by our anceſ⯑tors, enjoys (or, at leaſt, is allowed to be entitled to) the ſame conſtitutional privileges as the ſeat of empire, England itſelf. The reſpective Parliaments of the two iſlands are entirely independent of each other; they ſeparately grant, from time to time, the neceſſary ſupplies to the ſtate; and no man may preſume to deny their right of enquiring reſpectively into the application of them. But, not⯑withſtanding this diſtinct oeconomy, and the entire independency of the natives or [37]ſubjects, with reſpect to each other, yet they are firmly united, by the bands of allegiance, to one Head (or Monarchy) of limited power, whereby they enjoy the privileges of the ſame reaſonable common Law, and the ſame excellent Conſtitution of ſtate: ſo that the equality of privilege and condition renders the Union more juſt and equitable, and conſequently more ſafe and durable, than it could poſſibly have been made by any other means.
And the inhabitants of both iſlands (though ſprung from a variety of jarring, jealous, and fierce nations) have, by this means, acquired a certain mutual conſideration for each other, as fellow-ſubjects, which could never have been produced by mere alliances, guarantees, or defenſive leagues, nor perhaps by any other mode of government whatever, than that by which Divine Providence has effected it; viz. the Engliſh Con⯑ſtitution.
[38]This has firmly united the ſtrength of the two iſlands; whereby reciprocal ſuc⯑cour in time of need is inſured to both. This eſtabliſhed example of the true con⯑ſtitutional mode of connecting Britiſh Dominions, that are otherwiſe ſeparated by Nature, will enable us, by compari⯑ſon, to diſcern the illegality and injuſtice of Dr.—'s five Propoſitions. The ſtately vine of Britiſh Dominion (if I may uſe that ſcriptural type) has pro⯑videntially extended its luxuriant branches to the moſt diſtant parts of the earth! and will continue to ſpread and increaſe as long as Juſtice and the Laws of Li⯑berty are duly maintained by thoſe who are entruſted with the adminiſtration of government (unleſs the wickedneſs of individuals, manifeſted by the exerciſe of domeſtic Slavery and Oppreſſion in the Co⯑lonies, and of political Corruption and Venality at home, with the growing vices [39]attending both reſpectively, ſhould un⯑happily draw down God's vengeance upon us! and perhaps our mutual pu⯑niſhment is at this time impending in the preſent differences and ignorance of the Engliſh Conſtitution): But how will the trunk or ſtock of the Britiſh Vine appear, if we ſhould entirely ſeparate or lop off the branches?—The American Branches are already detached, indeed, (in point of diſtance,) and widely ſepa⯑rated from the Trunk, by a vaſt Ocean, but the imperial Crown of Great-Britain is, nevertheleſs, a ſufficient band of u⯑nion or connexion between them, it be⯑ing the legal enſign of authority for the maintenance and execution of the ſame juſt laws, the influence of which may, by a due conſtitutional exertion of the regal Power, be circulated, like whole⯑ſome ſap, from the root to the moſt diſ⯑tant branches.
[40]But if (according to Dr.—'s 5th propoſition) the flouriſhing branches of North-America were to be entirely ſepa⯑rated from the trunk, and excluded from the circle of the royal diadem, the effect would be reciprocally humiliating; for the act of ſeparation would, at the ſame time, unavoidably contract the imperial Authority of the Britiſh Empire to the narrow limits of Britiſh and Iriſh ground, except a few ſmall Sugar-Iſlands, peo⯑pled chiefly by the moſt miſerable of ſlaves: ſo that both Great-Britain and her Colonies would reciprocally loſe im⯑portance, ſtrength, and ſecurity, by the diſunion. A Guarantee of independence againſt all foreign invaders, as propoſed by Dr.—, would fall far ſhort of the effect which we enjoy by the preſent conſtitution, becauſe it would not, like the latter, produce that mutual conſidera⯑tion and protection which are due from [41] fellow-ſubjects. Our connexion, accord⯑ing to the doctor's meaſure, would be upon no better footing than Alliances of the ſame kind with detached foreign Powers, which (as experience teaches us) ſubſiſt no longer than the private in⯑tereſt or ſeparate views of the contracting parties.
If all theſe points are duly conſidered, the very propoſing ſo pernicious a mea⯑ſure muſt appear highly criminal, if not treaſonable! eſpecially as the author has been pleaſed to inſinuate, that there is no alternative!— ‘If we neither can govern the Americans,’ (ſays he,) ‘nor be governed by them; if we can neither unite with them, nor ought to ſubdue them; what remains’ (ſays he) ‘but to part with them on as friendly terms as we can?’ But is it not Trea⯑ſon againſt the Crown to inſinuate that the Americans cannot be governed, as [42]well as Treaſon againſt the People at large, to ſay that we cannot unite with our American Brethren, when there is a conſtitutional mode both of Government and Union, eſtabliſhed by law, and an unqueſtionable precedent, the obſervance of which would undoubtedly ſatisfy every honeſt American Subject?
The advocates for the juriſdiction of the Britiſh Parliament in America, like all promoters of bad meaſures, will not fail to repreſent thoſe, that oppoſe them, as licentious and diſaffected perſons; and therefore, as it is highly neceſſary for the general welfare and ſubſiſtence of the Britiſh Empire, both in Europe, Aſia, and America, (upon the principles already explained,) that we ſhould ſtrictly main⯑tain our Loyalty to the Crown, at the ſame time that we ſteadily aſſert our le⯑gal and conſtitutional Rights,—I think we ought to loſe no proper opportunity [43]of expreſſing our perſonal attachment to the King and the royal Family, who, in themſelves, indeed are truly amiable, and worthy of eſteem; but it is very diffi⯑cult, in this world, to guard againſt miſrepreſentation and bad advice; how⯑ever, I truſt that a ſteady perſeverance in Love and Duty will be the true means of your prevailing in the end, as it will prove that your oppoſition is not occa⯑ſioned either by diſaffection or diſloyalty, but is truly legal and conſtitutional.
P. S. I am entirely unacquainted, I pro⯑feſs, with the nature of the Crown Char⯑ters or Grants to the ſeveral American Pro⯑prietors; and therefore (left theſe ſhould contain any condition or acknowledge⯑ment, on the part of the landholders, which may ſeem to militate againſt the foregoing obſervations) I muſt beg leave to add, that the legiſlature hath agreed and laid down, as a rule, that all the ancient arbitrary and military Tenures of land, and even ‘Socage in capite of the King, and the conſequents upon the ſame, have been much more burthen⯑ſome, grievous, and prejudicial, to the Kingdom, than they have been beneficial to the King’ (ſee preamble to the Act of 12th of Charles II. chap. 24, for ta⯑king away the Court of Wards and Live⯑ries and Tenures in capite, and by Knights Service and Purveyance, &c.); and for this juſt reaſon, founded on "former [45]"experience, * the Crown hath ever ſince been reſtrained by the Law from granting "any Manors, Lands, &c." upon ſuch, or indeed any other conditions whatſoever, than "free and common Socage only." †
I have heard, indeed, that a certain iſland in the northern part of America was granted to a noble lord, with a par⯑ticular juriſdiction upon the ancient feu⯑dal plan, whereby he is ſaid to have been eſtabliſhed as Lord Paramount, with a peculiar unconſtitutional authority: but this, I am willing to preſume, is merely report; and, even if it were true, the Grant would be innocent enough in its [46]effects, provided the people be inſtructed in their Rights; becauſe all ſuch undue conditions, as I have mentioned, are ab⯑ſolutely null and void in themſelves; for the law obliges us to conſtrue them as if they had no other meaning than a legal Grant of lands ‘in free and common ſo⯑cage.’ See the 4th ſection of the ſaid Act. ‘And be it further enacted, by the authority aforeſaid, that all Te⯑nures’ (there is none excepted) ‘here⯑after to be created by the King's Ma⯑jeſty, his heirs, or ſucceſſors, upon any Gifts or Grants of any Manors, Lands, Tenements, or Hereditaments, of any Eſtate of inheritance at the common law, ſhall be in free and com⯑mon Socage, and ſhall be adjudged to be in free and common Socage onely, and not by Knights Service,’ &c.
SOLI DEO GLORIA ET GRATIA.
A DECLARATION OF THE People's Natural Right to a Share in the Legiſlature, &c. PART II.
[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 De⯑claration was ſent to the Preſs, I was not aware that there had been any con⯑troverſy before the ſixth of King George I. concerning the freedom of our fellow ſubjects in Ireland, or that any Engliſh⯑man, acquainted with the principles of [52]our excellent conſtitution of State, had ever, before that time, preſumed to ad⯑vance any Doctrine, which might tend to deprive our Iriſh Brethren of their na⯑tural freedom, and of the ineſtimable be⯑nefits of that happy legal conſtitution, which Britiſh Subjects in general are commonly ſuppoſed to inherit by BIRTH⯑RIGHT!
But I have ſince had the mortification to find, that ſuch great Authorities as Lord Coke, Judge Jenkins, Lord Chief Juſtice Vaughan, Judge Blackſtone, the Honourable Mr. Juſtice Barrington, &c. might be quoted in favour of a contrary Doctrine! And as I have mentioned the Union between Great-Britain and Ireland in the Firſt Part of this Declaration, &c. as an Example of ‘the true conſtitution⯑al mode of connecting Britiſh Domi⯑nions that are otherwiſe ſeparated by nature,’ I thought myſelf therefore, [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 queſ⯑tion, 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 fre⯑quently 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):’ [54]And though the Doctrine is unconſtitu⯑tional and dangerous, if admitted in a ge⯑neral 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 [55]him, which related to the exportation of goods from Waterford: for, the Iriſh ſub⯑jects themſelves do not deny the juriſ⯑diction of Great-Britain upon the high Seas, nor in matters of external(3) com⯑merce, 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, concern⯑ing the Engliſh Acts binding the Iriſh in external Tranſactions, had been made (in his abſence) by the other Judges in [56]a preceding term(4); which accounts for the remark of the Reporter, that this opi⯑nion [57]of Chief Juſtice Huſſy ‘was not much denied by the other Judges, though ſome of them were of a contra⯑ry 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 ab⯑ſolutely, without ſome demur; which could only conſiſt in their adding that due diſtinction before-mentioned: for it plain⯑ly appears (notwithſtanding the aſſertion of the Reporter) that they were not, really, of a contrary opinion in the for⯑mer term, with reſpect to the caſe before them; which related to an external tran⯑ſaction, the ſame that, in their former opi⯑nion, they declared to be ſubject to the [58]controul of England; and, therefore, there was no reaſon why they ſhould ‘much deny’ the opinion of Chief Juſtice Huſ⯑ſy, 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 ge⯑neral ſenſe(5), without paying the leaſt regard to that juſt diſtinction between the external and internal Government of Ire⯑land, which the other Judges had before ſo clearly laid down and confirmed by an unanſwerable reaſon(6) why the Iriſh [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 ‘de⯑nied by Markham, Yelverton, and [60]Aſcough(8)’ Sir John Forteſcue had declared, that, ‘if a tenth or fif⯑teenth [61]were granted here, this ſhould not bind thoſe of Ireland, even though [62]the King ſhould ſend the ſame Statute into Ireland under his great ſeal, ex⯑cept they will in their Parliament ap⯑prove it; but, if they will allow it,’ (i. e.) ‘then it ſhall be held there, [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 inconteſ⯑tible reaſon, "pur ceo," becauſe they (the Iriſh ſubjects) ‘have no ſummons with us to come to Parliament.’
But Lord Coke has unfortunately ne⯑glected 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 [64]ſend Knights to (our) Parliament;’ but he adds, in a parentheſis, that ‘this is to be underſtood, unleſs they be eſpe⯑cially 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 certain⯑ly 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).
[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 ſub⯑jects from being bound, when not "eſpe⯑cially named," (which is allowed even by Sir Edward Coke himſelf,) it certain⯑ly is equally effectual when they are na⯑med; or rather, (I ought to ſay,) the Rea⯑ſon 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 ſub⯑jects ſtand moſt in need of a due repre⯑ſentation, which cannot therefore be de⯑nied them at ſuch a time, without the moſt flagrant violation of Juſtice and na⯑tunal Equity!
But, leſt any of my Readers ſhould ſtill retain any doubt concerning the ground⯑leſs Doctrine broached by Sir Edward [66]Coke, that Engliſh Statutes bind in Ire⯑land 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 Ire⯑land to come to his Parliament of Eng⯑land,’ &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.
[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, con⯑cerning 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 al⯑ready is aſſerted; for here he has attempt⯑ed to juſtify his opinion by an example, which, out of reſpect to ſo great an au⯑thor, [68]we may, of courſe, preſume to be the very beſt that could have been pro⯑duced 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 no⯑thing 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 re⯑cord, of the injuſtice of pretending to "bind the Subjects of Ireland" without their expreſs conſent; being, in reality, a copy of the King's Writ (before⯑mentioned) to ſummon the Nobles of Ireland ‘to the Parliament at Weſt⯑minſter, there to treat with the No⯑bles, &c. of his Kingdom upon the State of the ſaid Land,’ i. e. Ireland. Thus it is plain that the Engliſh Legiſ⯑lature, even ſo early as in the Reign of Edward II. (by whom the Writ was iſ⯑ſued,) [69]did not eſteem it equitable to de⯑bate "upon the State of the ſaid Land,"— ("ſuper ſtatu terrae praedictae,") with⯑out ſome legiſlative repreſentation there⯑of. 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 mit⯑tendum fide dignos ad colloquium.’ [70]And conſequently if Lord Coke's Doc⯑trine (for which he has cited theſe ex⯑amples) 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 un⯑derſtood in any other light than that of including a due repreſentation of the Iriſh Parliament within the Parliament of England; which the examples them⯑ſelves ſufficiently demonſtrate(14): And [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 Par⯑liament in England’ (15); which an⯑cient [72]privilege of the Iriſh Commoned has either been unknown, or alſo over⯑looked [73]and forgot by Lord Coke; and indeed it is not probable that the Iriſh Parliament was ever ſummoned to Eng⯑land regularly, or as a matter of courſe, to meet the Engliſh Parliament, but only on extraordinary occaſions, wherein the Subjects of Ireland were particularly con⯑cerned, and could not, we may pre⯑ſume, 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 re⯑gular 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 attri⯑buted to ſome extraordinary or peculiar circumſtances, (out of common courſe) which rendered it neceſſary.
In addition to the clear Precedents be⯑fore cited, it may not perhaps be impro⯑per to take notice of a circumſtance [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 queſ⯑tion, (i. e. the ſending Repreſentatives from Ireland to the Engliſh Parliament,) yet it tends to corroborate the ſame equi⯑table Doctrine concerning the neceſſity of Repreſentation in general, which ought to be the baſis of all determinations ei⯑ther in the Privy Council, (to which the example particularly relates,) or elſe⯑where. ‘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 cho⯑ſen 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 [75]probably the ſame perſon that is men⯑tioned 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 Par⯑liament of England;’ for, as the other circumſtances correſpond, both with re⯑ſpect to the place from whence he came, and the year of his being ſent, it is natu⯑ral to conclude, that the ſmall diſagree⯑ment in the name may have been occa⯑ſioned by ſome accidental miſtake, viz. John Droup for John Draper, or vice verſa; and he might ſerve the Inhabi⯑tants of Cork in the double capacity of Repreſentative in Parliament, and Agent for them to the Privy Council; or per⯑haps 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, with⯑out [76]danger, I apprehend, be allowed all the powers of an effectual Legiſlative to bind Ireland, provided the reſpective branches of Iriſh Repreſentation be pre⯑ſerved entire and diſtinct; for the En⯑gliſh Privy Council could have no legal voice in ſuch a caſe, except that of ad⯑viſing the aſſent or diſſent of the Sove⯑reign; and yet, whenever it was neceſ⯑ſary 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 diſ⯑tinguiſhing 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 ap⯑pears by a record cited by Mr. Molly⯑neux(17), wherein mention is made of [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 Pre⯑latorum, 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 [78]well in ſeparate as in joint Parliaments; and, upon ſuch equitable terms of Repre⯑ſentation 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 ſub⯑ſiſts when a due Repreſentation is al⯑lowed.
[79]How much later than the Reign of Edw. III. this practice was continued, of occaſionally ſummoning the Iriſh Par⯑liament 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 produ⯑ced are amply ſufficient to confute the obſervation of Judge Jenkins in his 4th Century, p. 164, viz. that ‘the Sta⯑tutes 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 exam⯑ples [80]of the Iriſh Parliament being ſum⯑moned 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 opi⯑nion (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 Rich⯑ard Bolton's Declaration(19), ſetting [81]forth ‘how, and by what means the Laws and Statutes of England from [82]time to time came to be of force in Ireland;’ and it is undeniable, that [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, [84]and ſome particular, made at different periods of time, from the 13th of Ed⯑ward [85]II. to the Reign of King Charles I. the time when he wrote, and of theſe [86]examples not leſs in number than eighteen, which ſurely are ſufficient to prove the [87]uniform ſenſe of the Iriſh Parliament upon this point in every age ſince they received the Engliſh Law.
[88]Of the general examples which he has cited, that in the 10th of Hen. VII. (one of Poining's Acts) whereby all the [89]Engliſh Statutes then in force were adopted by the Iriſh, is the moſt re⯑markable; and it is neceſſary to take par⯑ticular notice of this Act, becauſe the ef⯑fect 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 obſer⯑ving any farther diſtinction(21); as if [90]they thought the Statute capable of in⯑cluding, 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, not⯑withſtanding that ſome have thought it doubtfully worded. The tenor of it is recited by Lord Coke, in his 4th inſtit. p. 351. as follows: ‘That all Statutes, late made within the Realm of England, concerning or belonging to the com⯑mon or public weal of the ſame, from henceforth be deemed good and effec⯑tual in the Law, and over that be ac⯑cepted, uſed, and executed, within this land of Ireland, in all points, &c.’ And though the word late was afterwards deemed a doubtful expreſſion, with re⯑ſpect to the extent of its effect, yet it ſuf⯑ficiently reſtrains the Act to the introduc⯑tion [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 like⯑wiſe 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 Hen⯑ry the 7th, it is enacted, That all Sta⯑tutes, made in this Realme of Eng⯑land BEFORE THAT TIME, ſhould be [92]of force, and be put in uſe, within the Realme of Ireland,’ &c.
This Act of Poining's, therefore, ſuffi⯑ciently 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 Au⯑thority of their own Parliament, other⯑wiſe 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 Parlia⯑ment.’ (23) Sir Richard Bolton alſo [93]informs us, that ‘a like Statute was made again in the 29th of Henry VI.’ and therefore, notwithſtanding that Ser⯑jeant Mayart has taken great pains, and filled many pages with citations of prece⯑dents from old Records of Law Caſes, Writs, &c. (in order to prove that Eng⯑liſh Acts of Parliament have been re⯑ferred to, and allowed in judicial Pro⯑ceedings, before the ſame were con⯑firmed 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 Parlia⯑ment jointly therewith, as I have already ſhewn to have been frequently practiſed in thoſe early days) let it be alſo remark⯑ed, that, though we ſhould allow that the Iriſh Courts of Juſtice might, per⯑haps, in ſome particular caſes of diffe⯑rence between individuals, but of indiffe⯑rence [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 Confir⯑mation of ſuch Acts afterwards, at diffe⯑rent periods, clearly proves the irregulari⯑ty 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 ſuffi⯑cient legal Authority till confirmed by themſelves; for, otherwiſe, the Confir⯑mation would have been unneceſſary, ſince the Acts (if Serjeant Mayart's examples are admitted) were already re⯑ceived 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 conſidera⯑tion at all; eſpecially as the Iriſh Legiſla⯑ture [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 Com⯑mons in 1641, Article the firſt: That ‘the Subjects of this his Majeſty's King⯑dom 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 ac⯑cording 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 wri⯑ter, [96]in the opinion of every honeſt Iriſh⯑man, 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 [97]the King's Subjects of Ireland, without diſtinction, in the firſt year of King Hen⯑ry III. ſo that all the Subjects of Ireland, (the conquered Iriſh not excepted,) from that very early period, and even ſoon⯑er(25), were as much entitled to Engliſh [98]Liberty, and all the Immunities and Be⯑nefits 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 [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 pro⯑bably, 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 Ire⯑land were honoured with a diſtinct Char⯑ter; for, after pointing out (in page 227) the ſeveral Chapters of the Charter, wherein (as he ſuppoſes) ‘that Law dif⯑fers from the antient common Law,’ [100]he adds them triumphantly to his Collec⯑tion of Precedents for binding Ireland by Statutes made in England; as if a Charter of Liberties, freely given and gladly accepted, could afford any Evi⯑dence againſt Liberty! For this undiſ⯑tinguiſhing man did not conſider that the King, by this Charter of Liberties, binds and reſtrains himſelf (rather than his Peo⯑ple) 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 Deroga⯑tion from their juſt and natural Rights.
And, as this Charter was granted to the "King's Subjects in Ireland" with⯑out diſtinction, it affords the moſt am⯑ple proof that even the conquered Iriſh were entitled to all the Immunities, Pro⯑tection, and Benefits, which the Engliſh [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 ENG⯑LISH AS IRISH’ (27). The Iriſh Na⯑tion [102]are alſo obliged to Serjeant Mayart for ſome other Proofs in their favour, which he intended againſt them: for, a⯑mongſt 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 eſtabliſh⯑ed, 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 an⯑other 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 [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 in⯑forms 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 account⯑ed themſelves Iriſh,’ &c. And there⯑fore, 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 exulting⯑ly applied to Sir Richard Bolton) upon [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 deny⯑ing, that they are rather deſirous to main⯑tain it(28). But none of his Authorities [105]afford the leaſt ſhadow of Evidence for the latter part of his Aſſertion, viz. the Power of the Engliſh Parliament over [106] Ireland. And, becauſe Sir Richard Bol⯑ton 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 in⯑fluence upon Ireland,’ &c. And a [107]little farther he adds, ‘But if it ſhould happen’ (ſays he) ‘that the Parlia⯑ment of England ſhould make an ex⯑poſition 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 Eng⯑land.’
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 natu⯑ral Rights and the Privileges of their own Parliament, might receive ‘the declara⯑tory Statute of the Parliament of Eng⯑land’ as the beſt Expoſition of the Common-Law, which they before acknow⯑ledged, [108]and freely accepted by their own expreſs aſſent and deſire. (29)
[109]But let us ſuppoſe that, in ſome ſuch declaratory Act, they had reaſon to think [110]the Engliſh Expoſition improper, and ſhould therefore chooſe to confirm their [111] own ſenſe of it by the Authority of their own Parliament, ſurely the latter would [112]be binding in Ireland, and not the Engliſh Statute, as Serjeant Mayart ſuppoſes; [113]for there is no example of an Iriſh Act of Parliament being ſet aſide by the Autho⯑rity [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 Eng⯑land 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 con⯑cerning 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 [115]truſt them hereafter,’ &c. And again, in p. 192, "But we all know" (ſays he) ‘with what great conſultation, delibera⯑tion, and knowledge of things, and the circumſtances of them, the Kings and Parliaments of England have ſtill or⯑dered 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 ſecu⯑rity for us.’ But, ſurely, no People, who have the uſe of reaſon or common⯑ſenſe, would be induced by ſuch an argu⯑ment to ſubmit themſelves implicitly to a Parliament, in which they have no Share of Power or Repreſentation; though, in⯑deed, it may be alleged, in behalf of this writer and his argument, that Par⯑liaments, before his time, were, in gene⯑ral, 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 [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 Go⯑vernment, and conſequently all preten⯑ſions to their natural Freedom, this advice of his might have been eſteemed excu⯑ſable!
But it is Repreſentation alone which forms the Baſis, the ſuperiority, and the eſſential difference, of the Engliſh Con⯑ſtitution 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 [117]Emperor, of a Triumvirate, or of a Se⯑nate 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 Re⯑preſentation of the people is the grand point of diſtinction, the fundamental principle, whereby the equity and ſafety of the Engliſh Government is to be mea⯑ſured, 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 [118]the Nature and Tendency of that Law which has ſo lately received the ſolemn Sanction even of our own Legiſlature,(30) [119]as being proper to be renewed and en⯑forced in a certain Province of the Bri⯑tiſh Empire! And the Hon. Mr. Juſ⯑tice 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 Prero⯑gative is founded, which’ (as he juſtly remarks) ‘may not only be mat⯑ter of ſome curioſity to an Engliſhman, [120]but, by compariſon, may make him thankful for the noble Conſtitution to which he is happily born. A Cappa⯑docian’ (ſays he) ‘;may indeed re⯑fuſe, from cuſtom and long uſage, to exchange a deſpotic for a more free Government; but I can never be per⯑ſuaded’ (ſays this benevolent Gentle⯑man) ‘but that there is a neceſſary con⯑nexion between Slavery and Miſery, and between Freedom and Happineſs. Se⯑neca’ (ſays he) ‘nobly inforces the communication of Liberty to the Sub⯑ject, from the Safety it procures to the King: (32) Errat ſi quis exiſtimat tu⯑tum eſſe ibi Regem, ubi nihil a Rege tutum eſt; ſecuritas ſecuritate mutuâ paciſcenda eſt. p. 179.’ Now, this [121]neceſſary mutual ſecurity can only be inſu⯑red 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 doc⯑trine of Lord Coke, about binding the Subjects of Ireland by Engliſh Statutes, "if Ireland is mentioned." But it is cer⯑tainly very natural for a gentleman re⯑gularly 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.
[122]Mr. Barrington is commenting on the Ordinance of 17 Edw. I. pro ſtatu Hi⯑berniae; and, after informing us that it is not found in the Collection of Iriſh Statutes, which begin only with the Or⯑diance 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) [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 men⯑tioned; 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 Repreſen⯑tatives in the Engliſh Parliament, whereas the aſſent of the Iriſh, which is equally [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 Doc⯑trine 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 mili⯑tes 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, be⯑fore I conclude this 2d part of my De⯑claration.
The Hon. Mr. Juſtice Barrington alſo obſerves, in p. 145, that ‘there have [125]been great and learned controverſies between Molyneux and others, with regard to an Engliſh Act of Parlia⯑ment binding in Ireland; and Moly⯑neux,’ (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 Se⯑venth,’ &c. — and a very ſtrong argu⯑ment it is! which, I hope, hath already been ſhewn. But the Hon. Mr. Barring⯑ton proceeds to cite; from the Parliament-Rolls of the 21ſt of Edw. I. a memo⯑randum of a very unwarrantable exer⯑tion of Royal-Prerogative, by that mo⯑narch, viz. his ſending a copy of the Ordi⯑nance (35) (for I cannot properly call it [126]a Statute) de malefactoribus in Parcis into Ireland, with an order to the Chief-Juſtice [127]of Ireland, to enforce it: and he remarks thereupon: — ‘This note fully [128]proves’ (ſays he) ‘that it was ſuppoſed the King, by his ſole authority, could [129]then introduce any Engliſh Law; and will that authority’ (ſays he) ‘be [130]leſſened by the concurrence of the two Houſes of Parliament?’ But [131]this by no means invalidates the juſtice of Mr. Molyneux's argument, while the [132]injuſtice, of which he complains, is ſtill continued; viz. the inequitable preten⯑ſion to bind the Subjects of Ireland by Laws made without their Aſſent, and [133]this even without any exception or juſt diſtinction concerning external or inter⯑nal Government; for the Iriſh themſelves [134]do not deny the propriety of the pre⯑tenſion in the former caſe. The exer⯑tion [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 argu⯑ment, becauſe the authority of Prece⯑dents muſt always be weighed and go⯑verned by Firſt-Principles and conſtitu⯑tional Law; otherwiſe we ſhould be li⯑able to adopt the moſt dangerous doc⯑trines, ſince there is nothing ſo bad but that a Precedent may be found for it!
[136]The ſecond precedent of this nature, which he has produced for the ſame pur⯑poſe, ſtill helps to confirm my obſerva⯑tion 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 Trea⯑ſurers and Chancellors of the Exche⯑quer, 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 inter⯑vention of Parliament.’ — Now, the precedent "ſhews" indeed (as Mr. Bar⯑rington juſtly remarks) ‘that it was then imagined,’ &c. that is, it ſhews that this falſe doctrine ‘was then ima⯑gined’ by the King and thoſe wretched Courtiers, who, either through ignorance, or wickedneſs, or both, betrayed him [137]with their unlawful counſels; but it by no means "ſhews" that ſuch an arbi⯑trary proceeding was really Law at that time, any more than it is at preſent! for the very ſame volume of Rymer's Foe⯑dera, (viz. tome xviii.) that contains the above-mentioned precedent, contains alſo other precedents of the like autho⯑rity, ‘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 Majeſ⯑ty'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.’ [138]Nay, "it was then imagined," (it ſeems,) by thoſe diſloyal perſons who falſely cal⯑led [139]themſelves "the King's Friends," that the King could not only tax his Eng⯑liſh Subjects by his Prerogative, but that he could alſo ſeize, impriſon, try, and even HANG them, by martial Law, with⯑out Judge or Jury!
The very ſame volume of Rymer's Foedera (tome xviii.) affords ſeveral au⯑thentic precedents for delegating ſuch un⯑limited 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) [140]and therefore, as it would be partial to admit an arbitrary precedent as an evi⯑dence 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 e⯑qually affect the other ſide of the queſ⯑tion, (I mean the Privileges of the Eng⯑liſh [141]Legiſlature,) we muſt neceſſarily ex⯑clude, from the preſent enquiry, the moſt diſtant idea that Mr. Barrington's 2d Precedent, for taxing Ireland by Pre⯑rogative, 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 it⯑ſelf, as well as ‘Ireland, by his Prero⯑gative, 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 deſti⯑tute, if poſſible, of legal evidence. — ‘What would have been the anſwer of [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 Ordi⯑nance 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, Or⯑ders, and Regulations, as ſhall be made by the Parliament of England; p. 146.’
But, though this was indeed the opi⯑nion of what Mr. Barrington calls ‘the Engliſh Legiſlature in the year 1650,’ yet no juſt argument can be drawn from [143]thence with reſpect to the preſent queſ⯑tion, (viz. the pretenſion to bind Ireland without Repreſentation or Aſſent;) becauſe it affords as good an argument, as the o⯑thers above-mentioned, for binding even England itſelf, without any Repreſenta⯑tion or Aſſent at all, ſince the ſaid Legiſla⯑ture (as it is called) was totally defec⯑tive in every point that is eſſentially ne⯑ceſſary to conſtitute an Engliſh Legiſla⯑ture; 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 cal⯑led the "Engliſh Legiſlature!" for, after the violent ſeizure of 41 Members of the Houſe of Commons(38) by the Army, [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 Mi⯑litia was then become; the ſeveral indi⯑viduals thereof having, by a conſtant mi⯑litary [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 for⯑merly enabled (whilſt a mere militia) to earn their bread, ſo that they now ac⯑knowledged no profeſſion but that of arms, and conſequently were now be⯑come a regular ſtanding army of mer⯑cenaries, with a ſeparate intereſt of their own from the reſt of the nation(41); [146]and a ſtanding army, by whomſoever paid, muſt ever be dangerous to conſti⯑tutional Liberty and Law.
The army were, indeed, the nominal ſervants of the Parliament, but were ne⯑vertheleſs the abſolute Lords and ſove⯑reign Directors of the ſame, having e⯑jected whomſoever they thought proper, and thereby modelled the national Repre⯑preſentative 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 [147] "Legiſlature," being a mere tool of mi⯑litary power, which was permitted to ſit for no other purpoſe than that of lending a pretended parliamentary Authority to the arbitrary meaſures and wicked reſo⯑ſolutions of an illegal Council of War; as if the mere Name of a Parliament without the thing itſelf (a due Repreſen⯑tation 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 tempori⯑zing diſſimulation,) clearly proves their fixed intention to proceed to extremities, contrary to the declared ſentiments(42) [148]of the former Parliament, as well as of the citizens of London (43) in general, and [149]of almoſt the whole preſbyterian party, (including at that time a very great ma⯑jority of the people,) who were earneſtly deſirous to maintain the ancient conſtitu⯑tion 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 King⯑dom, and was not leſs zealous to main⯑tain an unlimited Authority than the for⯑mer 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 e⯑qually arbitrary, illegal, and unjuſt; as Op⯑preſſion [150]is generally puniſhed by Oppreſſion, that even the injuſtice of mankind may de⯑monſtrate the juſtice of an all-ruling Pro⯑vidence 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 au⯑thority of Parliament over Virginia and the other Colonies.
In the beginning of 1653, the artful Cromwell found himſelf ſo well eſta⯑bliſhed 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 ven⯑tured, [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 Mem⯑bers, without conſulting the Nation at all, that the new nominal Parliament might be ſtill more obedient in repreſenting and [152]fulfilling the Will and Pleaſure of its mi⯑litary Conſtituents: This wretched Aſ⯑ſembly, though in the higheſt degree deſpicable in itſelf, was nevertheleſs in⯑veſted 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 un⯑deniable precedent for governing Eng⯑land, 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 [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 them⯑ſelves, 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 cre⯑ating 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 [154]appears by the event, not only the ſove⯑reign executive Power, but alſo the full and ſupreme legiſlative Power of the Re⯑public, 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 Ar⯑my, [155] (50) and of permitting a national Militia to become ſuch,(51) as to de⯑monſtrate [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 Colo⯑nies, without the Repreſentation and Aſ⯑ſent 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 [157]own doublet,) as "in the year 1650," to which this learned writer has refer⯑red us; ſince the authority of the nomi⯑nal Legiſlature in 1650 was entirely ille⯑gal, 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 re⯑mains of the Long-Parliament in 1650 (being about 80 Repreſentatives or Mem⯑bers, inſtead of 513 that had been e⯑lected(52) at the beginning of that Par⯑liament) [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 Repreſenta⯑tives 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 pre⯑ſerved in uſeful purity, without a ſeaſon⯑able renewal, (53) from time to time; [159]ſo that our more prudent Anceſtors (imi⯑tating nature) required alſo an annual (54) [160]renewal of their parliamentary Repreſen⯑tation, as being neceſſary for the mainte⯑nance of public virtue.
[161]Thus the third Example, given by this learned gentleman, for taxing Ireland and Virginia, &c. without the aſſent of [162]the reſpective inhabitants, is manifeſt⯑ly illegal; ſince it muſt appear, that [163]what he calls ‘the Engliſh Legiſtature, in the year 1650,’ was totally void of [164]every eſſential and legal qualification to, render it worthy of ſo diſtinguiſhing a [165]title: but, ſuppoſing that ‘the Engliſh Legiſtature, in the year 1650,’ had [166]been a legal and conſtitutional Parlia⯑ment, yet the Reſolutions he has men⯑tioned [167]would have been totally illegal, and amount to no more than a mere vain [168]aſſertion, as void of Law and Reaſon as it was really of Effect; which is proved [169]by ‘the ANSWER of the Engliſh Legiſla⯑ture,’ at Virginia, (then repreſenting [170] the People of that province,) to the un⯑reaſonable pretenſions, beforementioned, of the mock Legiſlature at London; for [171]otherwiſe, if we were to conſider ‘what would have been THE ANSWER’ (or ra⯑ther 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 preten⯑ſions, we ſhould lay ourſelves open to the charge of partiality!
The judicious Author of a late ‘Ap⯑ppeal 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 diſſolu⯑tion of the Monarchy,’ (ſays he,) ‘the Commonwealth diſpatched a Go⯑vernor, WITH A SQUADRON, to take poſſeſſion of Virginia. He was per⯑mitted to land, upon Articles, of which the following is one, and deciſively ſhews what were their original ideas of their Rights. Article 4th. VIRGINIA [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 Honour⯑able Mr. Barrington) againſt Ireland, than I at firſt intended; but the ſeveral diffe⯑rent ſubjects, to which I was naturally [173]led in the examination of them, are of ſo much conſtitutional importance, and ſo neceſſary to be known to every Engliſh⯑man, that I hope I may be excuſed for having, as they occurred, enlarged upon them, in the ſeveral Notes which I have added to my Text.
And, with reſpect to the three Prece⯑dents 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 Pre⯑cedents, againſt the Independence of Ire⯑land, 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 unguard⯑edly cited them, will be as zealous to [174]oppoſe any ſuch doctrine as myſelf; and I believe that I may farther aſſure myſelf, that this learned Author will not be diſ⯑pleaſed or offended with the freedom of theſe remarks upon his Work; for, though I have not the honour to be per⯑ſonally acquainted with him, yet I am ſufficiently acquainted (by other parts of his Writings) with the general benevo⯑lence and rectitude of his intentions, and alſo that he is an admirer and faſt friend to our conſtitutional Liberty (which plain⯑ly appears in many other parts of his uſe⯑ful 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 be⯑fore me, permit any arguments therein, [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 Commen⯑taries 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 queſ⯑tion, been ſtill alive, I ſhould have thought myſelf equally ſure of their be⯑nevolence 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 [176]my entertaining ſo charitable and friend⯑ly an opinion of him as I do of the reſt.
Though I have now drawn theſe re⯑marks 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 begin⯑ning 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 En⯑gland, in the caſe of Orurke, an Iriſh⯑man, [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 deli⯑vered, 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 Cuſ⯑toms of this realm; otherwiſe the govern⯑ment 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 [178]of K. Hen. VII. by which alſo the fun⯑damental 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 funda⯑mental Law of this realm is altered, (as elſewhere hath been obſerved,) what dangerous inconveniences do fol⯑low; 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, com⯑mitted moſt grievous and heavy oppreſ⯑ſions and exactions, grinding of the face of the poor ſubjects by penal laws,’ [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 pe⯑nalty 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 there⯑of, 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 veſ⯑tigia inſiſtunt, eorum exitus perhorreſ⯑cant. (ibid.)’
But, though theſe two wretched Judges were hanged for their time-ſerving, yet [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 unconſtitu⯑tional 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 men⯑tioned ‘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 unconſtitu⯑tional Act of Parliament, by which ‘a FUNDAMENTAL LAW of this realm’ (was) "altered;" ſo that their crime was [181]exactly parallel to the (equally criminal) reſolution of "all the Judges in England," in the caſe of Orurke the Iriſhman, he⯑forementioned, (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 ENG⯑LAND, 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 Eng⯑land,’ [182]without leaving room for plead⯑ing a legal exception, in behalf of thoſe territories wherein the laws, liberties, and conſtitution, of the Realm of Eng⯑land were already eſtabliſhed, the ſaid Judges ought to have known that ‘a fun⯑damental Law of this Realm’ was there⯑by "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 fun⯑damental Law of the Realm (was) altered;’ whereas, they really might have attributed a conſtitutional meaning to the ſaid Acts, by duly diſtinguiſhing thoſe(56) particu⯑lar [183]caſes wherein they may LEGALLY be enforced, without thwarting any ‘funda⯑mental Law of the Realm.’
[184]From what has been ſaid, I hope it will appear ſufficiently clear to my Read⯑ers, [185]that the ſevere cenſure, which Lord Coke ſo juſtly beſtowed on the two wick⯑ed [186]Judges, Dudley and Empſon, for ACTING BY THE AUTHORITY [187]OF AN UNCONSTITUTIONAL ACT OF PARLIAMENT, is equally [188]applicable (for the very ſame reaſon) to the Reſolutions beforementioned, of ‘ALL [189]THE JUDGES IN ENGLAND,’ though Lord Coke himſelf (even the author of the [190]former cenſure) has cited them without the leaſt animadverſion!
[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,) con⯑cerning ſeveral ſimilar Acts of Parlia⯑ment; 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 [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 Trea⯑ſon [193]by open Rebellion, ſhall be ar⯑raigned and put to his Trial in Eng⯑land, 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 maintain⯑ed, 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 Ire⯑land, and therefore his Trial ſhall be there,’ &c.
Theſe worthy Lawyers were not a⯑fraid, it ſeems, to maintain the weight of a LEGAL and FUNDAMENTAL REASON againſt the combined force of FOUR EXPRESS ACTS OF PAR⯑LIAMENT! And ſuch a reaſon, though it had been advanced only by a ſingle Judge, or even by a private perſon, is [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, aſſign⯑ed 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 in⯑ſufficient 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 [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 im⯑partial, if the Jury are not impannelled in THE NEIGHBOURHOOD where the offence was committed;(62) unleſs we may except the ſingle caſe beforemention⯑ed, 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 Neigh⯑bours to the Fact is the unalienable RIGHT of all Britiſh Subjects, according to the [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 compre⯑hended, in that general term, ‘the Law of the Land,’ that the latter may be conſidered as entirely ſubverted and over⯑thrown, whenever the former is changed or ſet aſide; for ‘ſublato fundamento cadit opus. Jenk. Cent. 106.’
[197]In the 29th Chapter of Magna Char⯑ta, "the Law of the Land" ſeems to be mentioned in this peculiar ſenſe: ‘Nec ſuper cum ibimus, nec ſuper eum mitte⯑mus, niſi per legale judicium parium ſua⯑rum, vel PER LEGEM TERRAS.’ Lord Cokereſers us, ‘for the true ſenſe and expo⯑ſition 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, pre⯑ſentment 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. [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 or⯑dinary Courſe of the Law,’ ſee ſect. v.) is again re-eſtabliſhed, in oppoſition to the [199]unlawful authority that had been uſurp⯑ed by the King, Privy-Council, and Star-Chamber.
This "due Proceſs of the Law," there⯑fore, 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 [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 im⯑partial 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 vi⯑cineto, 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, be⯑cauſe all ſuch muſt neceſſarily ‘BE HOLDEN FOR NONE,’ according to the 42. Ed. III. c. 1. which is cited [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 Parlia⯑ment, in his 42d year, had certainly ſuf⯑ficient [202]authority to add, to their confir⯑mation 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 what⯑ever (eodem modo conſtituitur) is ordained by ſo great Authority as that which Mag⯑na Charta has at length acquired, by the expreſs confirmation, from time to time, of ſo many different Kings and Parlia⯑ments: (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 [203]treaſon to the ſtate! This glorious Char⯑ter muſt, therefore, ever continue unre⯑pealed: 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 [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 be⯑fore recited, ‘eodem modo quo quid conſti⯑tuitur, 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 con⯑ſtituitur, that is, by the repeated ſuffra⯑ges 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 ac⯑compliſh 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!
[205]It muſt, therefore, be obvious to every perſon, who duly conſiders all theſe cir⯑cumſtances, that the Reſolutions of ‘ALL THE JUDGES IN ENGLAND,’ in the ca⯑ſes of Orurke, or Ornicke, the Iriſhman, and Sir John Perrot, were contrary to a FUN⯑DAMENTAL LAW in the Great Char⯑ter, and conſequently ought to be "HOLDEN FOR NONE," according to the expreſs determination of the Parlia⯑ment, in the 42d Ed. III. c. 1.(70) and ought to be ‘VOID IN THE LAW and HOLDEN FOR ERROUR,’ ac⯑cording to the ſecond chapter(71) of the [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, (notwith⯑ſtanding the literal meaning of the gene⯑ral expreſſions therein,) when applied to of⯑fences 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 na⯑med’ 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 Ire⯑land, 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 di⯑rectly [207] contrary to the Great Charter; whereas, at preſent, there are ſome par⯑ticular caſes (as I have before remarked) wherein they may, perhaps, be allowed a legal force.
Now, though what I have already re⯑marked will probably be thought a ſuffi⯑cient Anſwer to the two Reſolutions ‘of all the Judges in England,’ cited by Lord Coke as precedents againſt the Liber⯑ties of our brethren, the ſubjects of IRE⯑LAND, I am nevertheleſs inclined to add one more teſtimony againſt the ſaid Reſo⯑lutions, 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 [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 exam⯑ple for all,’ beforementioned, (viz. that a Repreſentation of the Subjects in Ireland ought to be ſummoned to the En⯑gliſh Parliament, whenever ‘an Act of Parliament ſhall be made in England’ [209](eſpecially) ‘concerning the Statute of Ireland,)’ there would have been no eſſential difference between his Opinion and that natural Juſtice for which I con⯑tend: 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 IRE⯑LAND 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 CON⯑QUEST,’ &c. Now, it is very re⯑markable, that ſo many of the moſt emi⯑nent law writers ſhould have copied and adopted this erroneous opinion, without examining the force of it; as if the autho⯑rity and real worth of this learned Writer, [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 CON⯑QUERED 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 [211]ſecond(73) are in the leaſt intitled to the name of ‘Laws made in the Parliament [212]of England,’ though they are printed in the Statute-Books.(74)
[213]Amongſt the modern writers, who have likewiſe unfortunately adopted the ſame [214]erroneous opinion of Lord Coke, the learned Judge Blackſtone is the moſt [215]eminent, and therefore demands the moſt careful examination.
[216]In the introduction to his Commenta⯑ries, p. 101, he hath delivered his ſenti⯑ments much to the ſame effect as the other more ancient writers, already men⯑tioned. — 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 GENE⯑RAL 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 [217]WORDS.’ (75) And in the ſame para⯑graph 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 EQUAL⯑LY CLEAR, that, where Ireland is par⯑ticularly named, or IS INCLUDED UN⯑DER GENERAL WORDS, they are BOUND by ſuch Acts of Parliament.’ (though I hope I have already made the contrary appear EQUALLY CLEAR.) ‘For this [218]follows’ (ſays he) ‘from the very na⯑ture 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) [219] upon which the inferior depends.’ And then he immediately adds: ‘The original [220]and true ground’ (ſays he) ‘of this Superiority, in the preſent caſe, is what [221]we uſually call, though ſomewhat IM⯑PROPERLY,’ (very "IMPROPERLY" indeed,) "THE RIGHT OF CONQUEST:" &c. Now, I moſt heartily join with him in his application of the adverb "IMPRO⯑PERLY" 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 con⯑vince that learned gentleman himſelf, as well as the reſt of my readers, before I conclude, that ‘THE RIGHT OF CON⯑QUEST’ 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 [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 him⯑ſelf: 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 can⯑dour 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 contra⯑ry both to "the Law of Nations" and "that of Nature," (to which he has ap⯑pealed,) that "the Right of Conqueſt" ſhould be pleaded for binding the Conque⯑rors themſelves, or their Deſcendants, with⯑out their Aſſent! for of ſuch conſiſt the [223]greateſt part of the landed intereſt in Ire⯑land, at this day, who are entitled to all the Rights and Liberties of the ANCIENT CONQUERORS by inheritance and lineal de⯑ſcent: — Titles ſo juſt and ſacred, that I am ſure Judge Blackſtone will never per⯑ſiſt in oppoſing them; eſpecially when he ſees hereafter by what authority I make this aſſertion: Nay, the ‘Right of Con⯑queſt’ 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 inhabi⯑tants [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 in⯑habitants 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 con⯑ſequently "THE MOST PART" of the ſaid Inhabitants ought to be conſidered as ſtand⯑ing 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 de⯑gree of ſuperiority is acquired by Right of Conqueſt, it muſt be allowed, that "THE [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 them⯑ſelves.—And, on the other hand, it would be equally unjuſt, wicked, and im⯑politic, to make any partial diſtinction between them and the deſcendants of the conquered Iriſh, who, after many years ſtruggle, are now, at laſt, happily incor⯑potated and blended with them as one free People!
Having now examined the opinions of the moſt eminent Writers, that have fa⯑voured this Notion of a Right in the Bri⯑tiſh 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 [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 Dic⯑tionaries, &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 cer⯑tainty what I before aſſerted only upon general Principles in the firſt Part of this Declaration, viz. that ‘the true conſtitu⯑tional mode of CONNECTING Britiſh Do⯑minions, that are otherwiſe ſeparated by NATURE, is demonſtrated by the eſta⯑bliſhed example of the union of GREAT BRITAIN and IRELAND, which by long experience has proved to be ſufficiently ef⯑fectual, p. 21.’
[227]But, notwithſtanding that I have al⯑ready been led to a tedious length of ar⯑gument 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 un⯑guarded in what he has laid down con⯑cerning the American Colonies in p. 107. of the ſame volume, where he has made a very improper uſe of this ſame miſta⯑ken 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 ſen⯑tence,) "being obtained" (ſays he) ‘in the laſt century, either by RIGHT OF CONQUEST, and driving out the Na⯑tives, (with what natural Juſtice I ſhall not at preſent enquire,) or by Trea⯑ties. [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 al⯑low 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 COM⯑MON LAW, which ariſes from theſe foun⯑dations, 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 an⯑cient and approved uſages and cuſtoms, pe⯑culiar to Engliſh Subjects, he will not be backward, I truſt, to grant them alſo "allowance or authority there," when he [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 Eng⯑land, and every other privilege of Eng⯑liſhmen, 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 ENG⯑LISH SUBJECTS, ALL THE EN⯑GLISH 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 him⯑ſelf: 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 ap⯑plicable [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 certain⯑ly as much entitled to all; (I mean all the Engliſh Laws that were in being when theſe ſeveral Colonies reſpectively were eſ⯑tabliſhed;) and therefore, though they uſed (in the infant ſtate of each Colony) ‘only ſo much of the Engliſh Law as was ap⯑plicable 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 be⯑ing, indeed, their very beſt inheri⯑tance (78): And Equity ſurely entitles the increaſing Colonies (continually as [231]occaſions may ariſe from their improve⯑ments) to the uſe and benefit of all be⯑neficial Laws which were in force at the time of their anceſtors emigration.
That theſe, however, ‘muſt be under⯑ſtood with’ ſome "Reſtrictions," can⯑not be denied;—as the Laws of "Re⯑venue," (for inſtance,) which the learn⯑ed 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 ne⯑ceſſary 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, origi⯑nally, even in the mother Country; and, therefore, nothing but the like authority (that is, the free Grant of the Inhabi⯑tants upon the ſpot wherever they are [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 in⯑juſtice and iniquity as muſt neceſſarily render null and void all ſuch pretended Acts; for, otherwiſe, if they were ad⯑mitted, they would render all the tem⯑poral 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 cer⯑tum eſt retinendum eſt, quod INCERTUM EST dimittendum: Nay, quod INCERTUM EST NIHIL EST:" This is the cen⯑ſure of Law upon all the Acts of Men which fall under the judgement of the Law. If then THE LAW ſo judge of [233]the Acts of Men, HOLDING THEM FOR NOUGHT and VOYDE that are INCER⯑TAINE; 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 Impoſi⯑tions, by Wm. Hakewil, 1641.’
I have been the more particular (as well here as upon Orurke's caſe before⯑mentioned) in expreſſing the neceſſity of reſtraining the Power of Parliament within the bounds of Reaſon, Juſtice, and natural Equity, becauſe, I find, it is too common an error that an Act of Parliament is omnipotent, and that whatever is or⯑dained by Parliament muſt be Law, with⯑out 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 Commen⯑tator Judge Blackſtone, upon the very [234]ſame point, (the Omnipotence of Parlia⯑ment) 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) [235]and Conſideration which we owe, not only to our brethren and countrymen, [236]but alſo to our brethren of the univerſe, by the ties of nature; or, 2dly, if con⯑trary to the written Laws of God;(80) or, 3dly, if contrary to any of the funda⯑mental 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 [237]occaſioned a miſrepreſentation of TRUTH in the recital of facts;)(82) if, in any of theſe points, it ſhould unfortunately hap⯑pen (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 [238]them null and void, and not merely to re⯑peal 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 [239]only (as Judge Blackſtone has declared) "a figure rather too bold;" but even to⯑tally falſe and unjuſt; becauſe the Par⯑liament 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)
[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 Legiſ⯑lature together, (I mean their united au⯑thority,) what the ingenious Mr. Sadler ſaid particularly concerning the Houſe of Commons; viz. ‘When they are FREE⯑EST, they have LIMITS; for they be not infinite. Nay, when they are MOST FREE, they are MOST BOUND to GOOD ORDERS, and to RICHT-REASON. Sadler's Rights, p. 135.’
It would be happy for this kingdom if all Members of Parliament were ſen⯑ſible of theſe indiſpenſible limitations; and therefore, though I have thought it my duty to oppoſe what Judge Black⯑ſtone has unfortunately allowed concern⯑ing the imaginary OMNIPOTENCE OF [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 emi⯑nent 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 Par⯑liament,’ &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 na⯑tion, perhaps, ever produced, they will not think their time ill ſpent (I hope) in [242]following me through this minute exami⯑nation 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 ha⯑ving, in the courſe of this argument, oppoſed the opinions of ſuch very reſpect⯑able Writers as Baron Puffendorf on THE CIVIL LAW, and the Judges Coke, Vaugh⯑an, Jenkins, and Blackſtone, and the Hon. Mr. Barrington, on THE LAWS OF ENG⯑LAND. 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 foun⯑dation [243]of my own opinion; but, where⯑ever I have ventured to diſſent, from the opinions of theſe approved writers, I have aſſigned plain reaſons for it, or o⯑ther proper authorities, and I deſire to be truſted no farther than theſe plain rea⯑ſons and authorities will fairly warrant. I hope I may be permitted to uſe the ſame apology for pointing out miſtakes in the opinions of theſe very learned writers which the Hon. Mr. Juſtice Bar⯑rington has applied particularly to the Inſtitutes and Reports of Sir Edward Coke; which "being" (ſays he) ‘the beſt LAW-CHART, and implicitly truſted to, it is proper to take notice of every ſhoal and rock miſplaced, though per⯑haps not in the proper track of naviga⯑tion, p. 91.’