There is another case in which the same sentiments are preserved; it is in 2. P. Williams, 75, memorandum 9th August, 1722. It was said by the master of the rolls to have been determined by the lords of the privy council, upon an appeal to the king in council from the foreign plantations. 1st. That if there be a new and uninhabited country, found out by English subjects, as the law is the birth right of every subject, so, wherever they go, they carry their laws with them, and therefore such new found country is to be governed by the laws of England; though after such country is inhabited by the English, acts of parliament made in England, without naming the foreign plantations, will not bind them; for which reason it has been determined that the statute of frauds and perjuries, which requires three witnesses, and that these should subscribe in the testators presence in the case of devise of land, does not bind Barbadoes, but that 2dly. Where the king of England conquers a country, it is a different consideration; for there the conqueror, by saving the lives of the people conquered, gains a right and property in such people! In consequence of which he may impose upon them what laws he pleases. But 3dly. Until such laws, given by the conquering prince, the laws and customs of the conquered country shall hold place, unless where these are contrary to our religion, or enact any thing that is malum in se, or are silent; for in all such cases the laws of the conquering country shall prevail.
NOVANGLUS.
ADDRESSED
To the Inhabitants of the Colony of Massachusetts Bay,
April 3, 1775.
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 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 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, Roderic O'Connor, king of Connaught, was advanced to this pre-eminence. 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 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 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.
Macmorrough, 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 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 1st. 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 part of the property, possession or revenue of the English crown, and that its authority over it was absolute and without controul.
That 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, Henry 3d, A. D. 1229. In the old abridgment Tit. Homage, this is said not to be a statute. Vid. Ruffhead's statutes at large, V. 1. 15. Mr. Cay very properly observes, that it is not an act of parliament, Vid. Barrington's observations on the statutes, p. 34. 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 co-partners, within age, should be divided, what is the law and custom in England with regard to this.