[3 April 1775]
[salute] My Friends,
Give me leave now to descend from these general matters, to Massachusettensis. He says “Ireland who has perhaps the greatest possible subordinate legislature, and send no members to the British parliament, is bound by its acts, when expressly named.” But if we are to consider what ought to be, as well as what is, why should Ireland have the greatest possible subordinate legislature? Is Ireland more numerous and more important to what is called the British empire, than America? Subordinate as the Irish legislature is said to be, and a conquered country as undoubtedly it is, the parliament of Great-Britain, altho' they claim a power to bind Ireland by statutes, have never laid one farthing of a tax upon it. They knew it would occasion resistance if they should. But the authority of parliament to bind Ireland at all, if it has any, is founded upon a different principle entirely from any that takes place in the case of America. It is founded on the consent and compact of the Irish by Poyning's law to be so governed, if it has any foundation at all: and this consent was given and compact made in consequence of a conquest.
In the reign of Henry 2d of England, there were five distinct sovereignties in Ireland, Munster, Leinster, Meath, Ulster and Connaught, besides several small tribes. As the prince of any one of these petty states took the lead in war, he seemed to act, for the time being, as monarch of the island. About the year 1172 Rodoric O'Connor, king of Connaught, was advanced to this preeminence. Henry, had long cast a wishful eye upon Ireland, and now partly to divert his subjects from the thoughts of Becket's murder, partly to appease the wrath of the Pope for the same event, and partly to gratify his own ambition, he lays hold of a pretence, that the Irish
had taken some natives of England and sold them for slaves, applies to the Pope for license to invade that island. Adrian the 3d, an Englishman by birth, who was then pontiff, and very clearly convinced in his own mind of his right to dispose of kingdoms and empires, was easily perswaded, by the prospect of Peter's pence, to act as emperor of the world, and make an addition to his ghostly jurisdiction of an island which tho' converted to christianity had never acknowledged any subjection to the see of Rome. He issued a bull, premising that Henry had ever shewn an anxious care to enlarge the church, and increase the saints on earth and in Heaven, that his design upon Ireland proceeded from the same pious motives: that his application to the holy see, was a sure earnest of success: that it was a point incontestible, that all christian kingdoms belonged to the patrimony of St. Peter; that it was his duty to sow among them the seeds of the gospel, which might fructify to their eternal salvation; he exhorts Henry to invade Ireland, exterminate the vices of the natives, and oblige them to pay yearly from every house, a penny to the see of Rome: gives him full right and entire authority over the whole island, and commands all to obey him as their sovereign.
Macmorrogh, a licentious scoundrel, who was king of Leinster, had been driven from his kingdom, for his tyranny, by his own subjects, in conjunction with Ororic, king of Meath, who made war upon him for committing a rape upon his queen; applied to Henry for assistance, to restore him, and promised to hold his kingdom in vassallage of the crown of England.
Henry accepted the offer, and engaged in the enterprise. It is unnecessary to recapitulate all the intrigues of Henry, to divide the Irish kingdoms among themselves and set one against another, which are as curious as those of Edward the first, to divide the kingdom of Wales and play Lewellyn's brothers against him, or as those of the ministry, and our junto, to divide the American colonies, who have more sense than to be divided. It is sufficient to say that Henry's expeditions, terminated, altogether by means of those divisions among the Irish, in the total conquest of Ireland, and its annexation forever to the English crown. By the annexation of all Ireland to the English crown, I mean, that all the princes and petty sovereigns in Ireland agreed to become vassals of the English crown. But what was the consequence of this? The same consequence was drawn, by the kings of England in this case, as had been drawn in the case of Wales after the conquest of Lewellyn, viz. that Ireland was become a part
of the property, possession
of the English crown, and that its authority over it was absolute, and without controul.
This matter must be traced from step to step. The first monument we find in English records, concerning Ireland, is a mere rescriptum principis
, intituled statutum hiberniae de coheredibus
14, Hen. 3d, A. D. 1229. In the old abridgment Tit. Homage, this is said not to be a statute. Vid. Ruffheads statutes at large,2
V. 1. 15. Mr. Cay3
very properly observes, that it is not an act of parliament, vid. Barrington's observations on the statutes,4
p. 34. In this rescript, the king informs certain milites (adventurers probably, in the conquest of Ireland, or their descendents) who had doubts how lands holden by knights service, descending to copartners, within age, should be divided, what is the law and custom in England with regard to this.
But the record itself shews it to be a royal rescript only. Rex dilecto et fideli suo gerardo sit' mauricii justii' suo Hiberniae salutem. Quia tales Milites de partibus Hiberniae nuper, ad nos accedentes nobis ostenderunt, quod, &c. Et a nobis petierunt inde certiorari, qualiter in regno nostro Angliae, in casu consimili hactenus usitatem sit
&c. He then goes on and certifies what the law in England was, and then concludes, Et Ideo vobis mandamus, quod predictas consuetudines in hoc casu, quas in regno nostro Angliae habemus ut predictum est, in terra nostra Hiberniae proclamari et firmiter teneri, fac
Here again we find the king conducting, exactly as Ed. I, did in Wales, after the conquest of Wales. Ireland had now been annexed to the English crown many years, yet parliament was not allowed to have obtained any jurisdiction over it, and Henry ordained laws for it by his sole and absolute authority, as Ed. I did by the statute of Wales. Another incontestible proof, that annexing a country to the crown of England, does not annex it to the realm, or subject it to parliament. But we shall find innumerable proofs of this.
Another incontestable proof of this, is the ordinatio pro statu Hiberniae made 17 Ed. I, 1288.
This is an ordinance made by the king, by advice of his council, for the government of Ireland. “Edward, by the grace of God, king
of England, lord of Ireland, &c. to all those who shall see or hear these letters, doth send salutation.” He then goes on and ordains many regulations, among which the seventh chapter is “that none of our officers shall receive an original writ pleadable at the common law, but such as be sealed by the great seal of Ireland;” &c. this ordinance concludes “In witness whereof we have caused these our letters patent to be made.” Dated at Nottingham 24 Nov. 17 year of our reign.
This law if it was passed in parliament was never considered to have any more binding force, than if it had been made only by the king. By Poyning's law7
indeed in the reign of H. 7 all precedent English statutes are made to bind in Ireland, and this among the rest, but untill Poyning's law, it had no validity as an act of parliament, and was never executed, but in the English pale, for, notwithstanding all that is said of the total compact [conquest]
, by H. 2, yet it did not extend much beyond the neighbourhood of Dublin, and the conqueror could not inforce his laws and regulations much further.
There is a note on the roll of 21 Ed. I, in these words, “Et memorandum quod istud statutum de verbo ad verbum, missum suit in Hyberniam, teste rege apud Kenyngton 14, dic. Augueti anno regni sui vicessimo septimo: et mandatum suit Johanni Wogan, justiciario Hiberniae, quod praedictim statutum, per Hiberniam, in locis quibus expedire viderit legi, et publice proclamari ac firmiter teneri faciat.”
“This note most fully proves, that the king by his sole authority, could introduce any English law; and will that authority be lessened by the concurrence of the two houses of parliament? There is also an order of Charles the first, in the third year of his reign, to the treasurers and chancellors of the exchequer both of England and Ireland, by which they are directed to increase the duties upon Irish exports; which shews that it was then imagined, that the king would tax Ireland by his prerogative, without the intervention of parliament.” vid. obs. on the statutes, p. 127.
Another instance to shew, that the king by his sole authority, whenever he pleased, made regulations for the government of Ireland, notwithstanding it was annexed and subject to the crown of England, is the ordinatio facta pro statu terrae Hiberniae
, in the 31. Ed. I. in the appendix to Ruffhead's statutes, p. 37. This is an extensive code
of laws, made for the government of the Irish church and state, by the king alone, without lords or commons. The kings “volumus et firmiter precipimus,”
governs and establishes all, and among other things, he introduces by the 18th chapter the English laws, for the regimen of persons of English extract, settled in Ireland.
The next appearance of Ireland, in the statutes of England, is in the 34. Ed. 3. c. 17. This is no more than a concession of the king to his lords and commons of England, in these words “item it is accorded that all the merchants as well aliens as denizens, may come into Ireland, with their merchandizes, and from thence freely to return, with their merchandizes and victuals, without fine or ransom to be taken of them, saving always to the king, his ancient customs and other duties.” And by chapter 18. “Item, that the people of England, as well religious as other, which have their heritage and possessions in Ireland, may bring their corn, beasts and victuals to the said land of Ireland, and from thence to re-carry their goods and merchandizes into England freely, without impeachment, paying their customs and their devoirs to the king.”
All this is no more than an argument between the king and his English subjects, lords and commons, that there should be a free trade between the two islands, and that one of them should be free for strangers. But is no colour of proof that the king could not govern Ireland without his English lords and commons.
The 1. H. 5. c. 8. All Irishmen and Irish clerks, beggars, shall depart this realm before the first day of November, except graduates, serjeants &c. is explained by 1. H. 6. c. 3. which shews what sort of Irishmen only may come to dwell in England. It enacts that all persons born in Ireland shall depart out of the realm of England, except a few, and that Irishmen shall not be principals of any hall, and that Irishmen shall bring testimonials from the lieutenant, or justice of Ireland, that they are of the kings obeysance. By the 8. H. 6. c. 8. “Irishmen resorting into the realm of England, shall put in surety for their good abearing.”
Thus I have cursorily mentioned every law made by the king of England, whether in parliament or out of it, for the government of Ireland, from the conquest of it by Henry the 2d, in 1172, down to the reign of Henry the 7th, when an express contract was made between the two kingdoms, that Ireland should for the future be bound by English acts of parliament, in which it should be specially named. This contract was made in 1495, so that upon the whole it appears,
beyond dispute, that for more than 300 years, tho' a conquered country, and annexed to the crown of England; yet was so far from being annexed to or parcel of the realm, that the king's power was absolute there, and he might govern it without his English parliament, whose advice concerning it, he was under no obligation to ask or pursue.
The contract I here allude to, is what is called Poyning's law, the history of which is briefly this. Ireland revolted from England, or rather adhered to the partizans of the house of York, and Sir Edward Poyning was sent over about the year 1495, by king Henry the 7th, with very extensive powers, over the civil as well as military administration.
On his arrival he made severe inquisition about the disaffected, and in particular attacked the earls of Dismond and Kildare. The first stood upon the defensive and eluded the power of the deputy: but Kildare was sent prisoner to England: not to be executed it seems, nor to be tried upon the statute of H.
—but to be dismissed as he actually was, to his own country, with marks of the king's esteem and favour; Henry judging that, at such a juncture, he should gain more by clemency and indulgence, than by rigour and severity. In this opinion he sent a commissioner to Ireland, with a formal amnesty, in favour of Desmond and all his adherents, whom the tools of his ministers did not fail to call traitors and rebels with as good a grace and as much benevolence, as Massachusettensis discovers.
Let me stop here and enquire, whether lord North has more wisdom than Henry the 7th, or whether he took the hint from the history of Poyning's, of sending General Gage, with his civil and military powers? If he did, he certainly did not imitate Henry, in his blustering menaces, against certain “ringleaders and forerunners.”
While Poyning resided in Ireland, he called a parliament, which is famous in history for the acts which it passed in favour of England, and Englishmen settled in Ireland. By these, which are still called Poyning's laws, all the former laws of England, were made to be of force in Ireland, and no bill can be introduced into the Irish parliament, unless it previously receive the sanction of the English privy council; and by a construction if not by the express words of these laws, Ireland is still said to be bound by English statutes in which it is specially named. Here then let Massachusettensis pause and observe the original of the notion that countries might be bound by acts of parliament, if “specially named,” tho' without the realm. Let him observe too, that this notion is grounded entirely on the voluntary
act, the free consent of the Irish nation, and an act of an Irish parliament, called Poyning's law. Let me ask him, has any colony in America ever made a Poyning's act? Have they ever consented to be bound by acts of parliament, if specially named? Have they ever acquiesced in, or implicitly consented to any acts of parliament, but such as are bona fide
made for the regulation of trade? This idea of binding countries without the realm, by “specially naming” them, is not an idea taken from the common law. There was no such principle, rule, or maxim, in that law—it must be by statute law then, or none. In the case of Wales and Ireland, it was introduced by solemn compact, and established by statutes, to which the Welch and Irish were parties, and expressly consented. But in the case of America there is no such statute, and therefore Americans are bound by statutes in which they are “named,” no more than by those in which they are not.
The principle upon which Ireland is bound by English statutes in which it is named, is this, that being a conquered country, and subject to the mere will of the king, it voluntarily consented to be so bound. This appears in part already, and more fully in 1. Blackstone, 99, 100, &c.—who tells us, “that Ireland is a distinct, tho' a dependent, subordinate kingdom.” But how came it dependant and subordinate? He tells us “that king John, in the twelfth year of his reign, after the conquest, went into Ireland, carried over with him many able sages of the law; and there by his letters patent, in right of the dominion of conquest
, is said to have ordained and established, that Ireland should be governed by the laws of England: which letters patent Sir Edward Coke apprehends to have been there confirmed in parliament.” “By the same rule that no laws made in England, between king John's time and Poyning's law, were then binding in Ireland, it follows that no acts of the English parliament, made since the tenth of Henry 7th, do now bind the people of Ireland, unless specially named or included under general words. And on the other hand it is equally clear, that where Ireland is particularly named, or is included under general words, they are bound by such acts of parliament; for it follows from the very nature and constitution of a dependent state: dependence being very little else, but an obligation to conform to the will or law of that superior person or state, upon which the inferior depends. The original and true ground of this superiority in the present case, is what we usually call, tho' somewhat improperly, the right of conquest
: a right allowed by the law of nations, if not by that of nature;
but which in reason and civil policy can mean nothing more, than that, in order to put an end to hostilities, a compact
is either expressly or tacitly made between the conqueror and conquered, that if they will acknowledge the victor
for their master
, he will treat them for the future as subjects, and not as enemies.”11
These are the principles upon which the dependence and subordination of Ireland are founded. Whether they are just or not, is not necessary for us to enquire. The Irish nation, have never been entirely convinced of their justice; have been ever discontented with them, and ripe and ready to dispute them. Their reasonings have ever been answered, by the ratio ultima et penultima of the tories, and it requires to this hour, no less than a standing army of 12000 men to confute them. As little as the British parliament exercises the right, which it claims of binding them by statutes, and altho' it never once attempted or presumed to tax them, and altho' they are so greatly inferior to Britain in power, and so near in situation.
But thus much is certain, that none of these principles take place, in the case of America. She never was conquered by Britain. She never consented to be a state dependent upon, or subordinate to the British parliament, excepting only in the regulation of her commerce: and therefore the reasonings of British writers, upon the case of Ireland, are not applicable to the case of the colonies, any more than those upon the case of Wales.
Thus have I rambled after Massachusettensis through Wales and Ireland: but have not reached my journey's end. I have yet to travel through Jersey, Guernsey, and I know not where. At present I shall conclude with one observation. In the history of Ireland and Wales, though undoubtedly conquered countries, and under the very eye and arm of England, the extreme difficulty, the utter impractability, of governing a people who have any sense, spirit, or love of liberty, without incorporating them into the state, or allowing them some other way, equal priviledges may be clearly seen. Wales was forever revolting for a thousand years, untill it obtained that mighty blessing. Ireland, has been frequently revolting, altho' the most essential power of a supreme legislature, that of imposing taxes has never been exercised over them, and it cannot now be kept under, but by force, and it would revolt forever, if parliament should tax them. What kind of an opinion then must the ministry entertain of America? When her distance is so great, her territory so extensive, her commerce so important, not a conquered country, but dearly purchased and defended? When her trade is so essential to the navy, the commerce, the revenue,
the very existence of Great-Britain, as an independent state? They must think America inhabited by three million fools and cowards.