The 1. Henry 5th. c. 8. All Irishmen and Irish clerks, beggars, shall depart this realm before the 1st day of November, except graduates, sergeants, &c. is explained by 1. Henry 6th. 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 king's obeisance. By the 8th, Henry 6th. c. 8. "Irishmen resorting into the realm of England, shall put in surety for their goodabearing."
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 2d. in 1172, down to the reign of Henry 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, though 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 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 partizans of the house of York; and Sir Edward Poyning was sent over about the year 1495, by king Henry 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 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 8th, 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 enquire, whether lord North has more wisdom than Henry 7th. or whether he took the hint from the history of Poyning, of sending Gen. 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," 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 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, though a dependant, 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; dependance 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 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 dependance 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 and penultima of the tories, and it requires to this hour no less than a standing army of 12,000 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 dependant 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 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.
NOVANGLUS.