Novanglus Essays/No. 10
Give me leave, now, to descend from these general matters to Massachusettensis. He says, “Ireland, who has perhaps the greatest possible subordinate legislature, and sends 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, although they claim a power to bind Ireland by statutes, have never laid one farthing of 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 entirely a different principle 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 have any foundation at all; and this consent was given, and compact made, in consequence of a conquest.
In the reign of Henry II. 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, Roderic O’Connor, King of Connaught, was advanced to this preëminence. 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, and applies to the pope for license to invade that island. Adrian III., 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 persuaded, 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, though converted to Christianity, had never acknowledged any subjection to the see of Rome. He issued a bull, premising that Henry had ever shown 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 incontestable, 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, and 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 vassalage 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 I. 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 of 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; namely,—-that Ireland was become part of the property, possession, or revenue of the English crown, and that its authority over it was absolute and without control.
That matter must be traced from step to step. The First monument we find in English records concerning Ireland, is a mere rescriptum principis, entitled statutum Hiberniae de coheredibus, 14 Hen. III. a.d. 1229. “In the old abridgment, Title, Homage, this is said not to be a statute.”1 Mr. Cay very properly observes, that it is not an act of parliament.2 In this rescript, the king informs certain milites, (adventurers, probably, in the conquest of Ireland, or their descendants,) 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 shows it to be a royal rescript only. “Rex dilecto et fideli suo Gerardo fil’ Mauricii Justic’ 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 usitatum sit, &c.” He then goes on, and certifies what the law in England was, and then concludes:—-“Et ideo vobis mandamus, quod praedictas consuetudines in hoc casu, quas in regno nostro Angliae habemus, ut praedictum est, in terra nostra Hiberniae proclamari et firmiter teneri, fac, &c.”
Here again we find the king conducting himself exactly as Edward 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 Edward I. did by the statute of Wales. Another incontestable 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 Edward 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-patents to be made. Dated at Nottingham, 24th November, 17th 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 law, indeed, in the reign of Henry VII., all precedent English statutes are made to bind in Ireland, and this among the rest; but until 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 conquest by Henry II., yet it did not extend much beyond the neighborhood of Dublin, and the conqueror could not enforce his laws and regulations much further.
“There is a note on the roll of 21 Edward I. in these words:—-‘Et memorandum quod istud statutum, de verbo ad verbum, missum fuit in Hiberniam, teste rege apud Kenynton, 14 die Augusti, anno regni sui vivesimo septimo; et mandatum fuit Johanni Wogan, Justiciario Hiberniae, quod praedictum statutum per Hiberniam, in locis quibus expedire viderit, legi et publice` proclamari ac firmiter teneri faviat.’
“This note most fully proves, that it was supposed the king, by his sole authority, could then 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 I., 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 shows that it was then imagined the king could tax Ireland by his prerogative, without the intervention of parliament.”3
Another instance to show, 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 Edward I., in the appendix to Ruffhead’s statutes. 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 praecipimus,” governs and establishes all; and, among other things, he introduces, by the eighteenth 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 Edward III. 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 merchandises, and from thence freely to return with their merchandises 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 merchandises into England, freely without impeachment, paying their customs and devoirs to the king.”
All this is no more than an agreement 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 it is no color of proof, that the king could not govern Ireland without his English lords and commons.
The 1 Henry V. c. 8: “All Irishmen and Irish clerks, beggars, shall depart this realm before the first day of November, except graduates, sergeants, &c.” is explained by 1 Henry VI. c. 3, which shows “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 king’s obeisance. By the 2d Henry VI. 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 II., in 1172, down to the reign of Henry VII., 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 three hundred years, though a conquered country, and annexed to the crown of England, yet, it 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 alluded to, is what is called Poyning’s law, the history of which is briefly this: Ireland revolted from England, or rather adhered to the partisans of the house of York; and Sir Edward Poyning was sent over about the year 1495, by King Henry VII., 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 Desmond 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 Henry VIII., but to be dismissed, as he actually was, to his own country, with marks of the King’s esteem and favor; Henry judging that, at such a juncture, he should gain more by clemency and indulgence, than by rigor and severity. In this opinion, he sent a commissioner to Ireland with a formal amnesty in favor 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 inquire, whether Lord North has more wisdom than Henry VII., or whether he took the hint from the history of Poyning, 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 favor 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,” though 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 bonâ 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 Welsh 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 Blackstone, who tells us “that Ireland is a distinct, though a dependent, subordinate kingdom.” But how came it dependent 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 VII., 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 this 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, though 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 the conquered, that if they will acknowledge the victor for their master, he will treat them for the future as subjects, and not as enemies.”
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 inquire. 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 been ever answered by the ratio ultima and penultima of the tories; and it requires, to this hour, no less than a standing army of twelve thousand men to confute them, as little as the British parliament exercises the right, which it claims, of binding them by statutes, and although it never once attempted or presumed to tax them, and although 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 throughWales 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 impracticability of governing a people who have any sense, spirit, or love of liberty, without incorporating them into the state, or allowing them in some other way equal privileges, may be clearly seen. Wales was forever revolting, for a thousand years, until it obtained that mighty blessing. Ireland has been frequently revolting, although 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 millions of fools and cowards.
 Vide Ruffhead’s Statutes at Large, v. i. 15.
 Vide Barrington’s Observations on the Statutes, p. 34.
 Observations on the Statutes, p. 127.