XXXVII. CHAP. English subjects of this Kingdom were enabled faithfully to perform their duty to the Crown of England, and therefore, insisted upon their being preserved inviolate. Ireland a distinct dominion. A grievance Removal of causes into England. That though the imperial Crown of this realm was formerly inseparably annexed to the imperial Crown of England, and is now to that of Great Britain, yet this Kingdom, being of itself a distinct dominion, and no part of the Kingdom of England, none can determine concerning the affairs thereof, unless authorised thereto by the known laws and customs of this Kingdom, or by the express consent of the King. That it is an invasion of the prerogative, and a grievance to the loyal subjects of Ireland, that any court of judicature should take upon them to declare that the King cannot determine all controversies between subjects in Ireland, in the Parliament summoned to meet here, or that when they appeal to the King in Parliament here in matters wholly relating to this Kingdom, they bring their cause before an incompetent judicature. That in the removal of causes from this Kingdom into England, such usages have been by slow degrees. At first the judges here being to determine the causes by the Common Law of England, and not knowing well the usages there, applied to Henry III., their King, for information, who gave them an account of what the Common Law and custom in like case was. And this undoubtedly by the advice of the Justices of the King's Bench, who then were Bringing obliged to attend the King, wherever he should be. And of time, when his successors had settled the process Court of King's Bench after another manner, and had forborne to sit there themselves in person, the application formerly to the King was then to the Justices, which gave rise to the custom of removing causes by Writs of Error from the King's Bench in Ireland to the King's Bench in England. But from hence to infer Appeals from the Writs of in Ireland to England. Error from Pryn, chap. v. p. 214, Anno 2 Eliz. Coke 4th Inst. p. 349. 2 14 Hen. III. Stat. Hibern. made at West. (sic) in Lords' Jour. Ir. vol. ii. p. 655. Peers of Ireland to those of England, is a consequence for which there is no manner of ground. CHAP. XXXVII. Only two appeals from the Court of Chancery of Ireland to England before the tion, after. That for the practice of appealing from the High Court of Chancery in Ireland to the Lords of Great Britain, we can find but two precedents for such appeals before the Revolution-one in 1670, another in 1679. They happened at a juncture when no Parliament was held, and no opposition could be given. When the Parliament met, Revoluafter twenty-six years intermission, complaints were heard, writs of error and appeals reserved, and orders made thereon, and their validity never was doubted until 1690, when two appeals from Parliament here were carried before the And two Lords in England. They declared the cases coram non judice, and, without hearing the merits of the causes, reversed the decrees that had been made here. That as Both Parliaments the constituent parts of both Parliaments are alike in constituted every particular, either some record, Act of Parliament, or ancient usage, must be shown, to make a difference, and the same jurisdiction lodged in the English must, also, be allowed to the Irish Parliament. And if it be looked on as illegal for any inferior county in Great Britain to act in direct opposition to the orders and decrees of the House of Lords there, the same must be concluded in this kingdom." alike. Earl and When, in 1703, a Parliament of Ireland restored to the Case of Earl and Countess of Meath the lands they had been dispossessed of by order of the Lords in England, they, nor of Meath. their heirs, were ever disturbed. The Lords then refer to the case of Sherlock and Annesley, and to various technical objections, which they contended invalidated the proceedings, and thereby that the Baron violated the rules and practice of the Courts. That if the King is deprived of his power of determining Hardship causes here in Parliament, those who are unable to follow on suitors. them to Britain must submit to whatever wrongs they might suffer. That King Edw. III. was so sensible of the hardships the subjects of this kingdom suffered for want of having a means of reversing erroneous judgments within CHAP. the kingdom, that, by charter, dated Augt. 30th, in the XXXVII. 29th of his reign, on the complaints of subjects of Ireland, Charter he commanded all his judges and ministers, before whom any processes should be held, at the prosecution of the parties aggrieved, to return the Rolls of the Record and Processes into the Parliaments to be held in the kingdom of Ireland, and that the Records and Processes should be recited and examined, and the errors (if any should be found in them) duly corrected.' They refer to the simijudicature larity in the mode of summoning Parliament, and urge, if the power of judicature be taken away by a vote of the English Lords, the same Lords may deprive the people of Ireland of the benefit of their whole constitution. If the power of be taken, the Constitution may follow. Lords of Great Britain have no power to enforce Ireland. Payment to prevent further to the Irish Parliament. It is notorious, the Lords of Great Britain have no power of putting the decrees into execution within this kingdom, as is evidenced by their application to the King to cause their decree to be executed by an extraordinary decrees in interposition of Royal power. Complying with which would most highly affect the liberties of the loyal subjects of Ireland. That to prevent the appellant from making further application to the Irish Parliament, the King's application Deputy Receiver had paid her over 1,800l., which he expected would be refunded by the Government. That these proceedings greatly embarrassed the Parliament of Ireland, disquieted the loyal Protestants, brought Sheriffs and officers of Justice under hardships, by the clashing of different jurisdictions. Then follows this curious passage: Nor can we but with grief observe, that, while many of the Peers and Commons who sat in Parliament were Papists, their judicature was never questioned. But of late, since only Protestants are qualified to have a share in the legislature, their power, and the right of hearing causes in Parliament, hath been denied, to the great Discouragement to Protes tant Peers. Pryn on 4th Inst. p. 286. Anno 29th Ed. III. It appears from the latter portion of this record that the original power of Parliaments in Ireland, settled by King Henry II., and referred to in the Charter had afterwards been somewhat restrained as to writs of error, but the mandates of later sovereigns which narrowed the original powers of the Irish Parliament, were by this Charter recalled and made void.-Vide Lords' Jour. Ir. vol. ii. p. 658. discouragement and weakening of the Protestant interest in Ireland.' CHAP. XXXVII. Appeal to the King. ings sent to are turned. The Lords They hoped that all these matters would induce the King to justify what they had done for supporting the Prerogative, and the rights and liberties of themselves and fellow-subjects. Again the Lord Chancellor, five ProceedBishops, and Lords Doneraile and Shelburne were dis- England. sentients, but the majority had their way, and the proceedings were transmitted to England and brought before the British House of Peers. Then the tables were turned, The tables and the Barons were in the ascendant. The Lords resolved, That the Barons of the Court of Exchequer in commend Ireland, in their proceedings in the cause between Annesley and Sherlock, in obedience to their orders, acted with courage, according to law, in support of Majesty's prerogative, and with fidelity to the Crown of Great Britain. That an humble address be presented to his Majesty to confer upon them some mark of his royal favour, as a recompense for the injuries they had received, by being unjustly censured, and illegally imprisoned for doing their duty.' had his A further step was taken by the Parliament of England to prevent any similar appeal. the conduct of the Barons of the Ex chequer. 6 Geo. I. the de In 1719, was passed the Statute 6th George I. c. 5, Stat. intituled, An Act for the better securing the dependency c. 5., for of the Kingdom of Ireland upon the Crown of Great securing Britain.' It declared: I. Whereas, the House of Lords pendency of Ireland having late, against law, assumed to themselves of Ireland. a power and jurisdiction to examine, correct, and amend the judgments and decrees of the Courts of Justice in the Kingdom of Ireland. That the said Kingdom of Ireland hath been, is, and of right ought to be, subordinate unto, ..d dependent upon, the Imperial Crown of Great Britain, and the Parliament hath power to make laws to bind Ireland. II. And be it further enacted 'That the House of Lords of Ireland have not, nor of right ought to have, any jurisdiction to judge of, affirm, or reverse any judgment, sentence, or decree, given or made in any Court CHAP. XXXVII. Lord Macclesfield cellor of England. Opinion of within the said Kingdom, and that all proceedings before When we remember that the Chancellor of England at Lord Chan- this period was Lord Macclesfield,' who, while Lord Chancellor Parker, had upheld the Barons of the Irish Court of Exchequer against the House of Lords of Ireland, we cannot feel surprised at this enactment. It destroyed, at once, the appellate jurisdiction of the Irish Parliament, until brighter days came, when the assumed power fell before the might of a nation determined to be respected. 'Lord Macclesfield laid down doctrine with regard to Ireland,' observes Lord Campbell,3 that would now raise a rebellion in that country.' The case to which the ExChancellor of both England and Ireland refers was that of Sir John Fryer v. Bernard in Michaelmas Term, 1724,* -a motion for a sequestration against the defendant's real and personal estate in Ireland; in support of which it was alleged that the plaintiff had in England proceeded to a sequestration, but, that as the defendant had no property anywhere but in Ireland, there was no use in looking for one anywhere else. That a sequestration had been granted in the like case, as in that of Lord Ardglas v. Muschamp, when the Court granted a sequestration into Ireland. Case of Fryer ข. Bernard. 5 Lord Chancellor Lord Macclesfield said, 'The plaintiff ought, at least, first to take out a sequestration here, and upon nulla bona returned, I will grant a sequestration which shall affect the defendant's estate in Ireland. The 1 Thomas Parker. He had been Chief Justice of England and was created Earl of Macclesfield. 2 By 23 Geo. III. c. 28. No Appeal or Writ of Error from any Court of Ireland shall for the future be brought into any of the Courts in England. The 39 and 40 Geo. III. c. 67 (Act of Union), article 8 provides for the bringing of Writs of Error and Appeals from Ireland before the House of Lords of the United Kingdom. 3 Lives of Lord Chancellors of England, vol. iv. p. 528. • Vern. 135. |