'Ireland corporate of itself'

Richard, Duke of York- window,Trinity College Cambridge — **Richard, Duke of York**
**– window,Trinity College Cambridge**

In a parliament which met at Dublin in 1460 a famous statute was passed in which it was stated that

the land of Ireland is, and at all times has been, corporate of itself by the ancient laws and customs used in the same, freed of the burden of any special law of the realm of England, save only such laws as by the lords spiritual and temporal and the commons of the said land had been in Great Council or Parliament there held, admitted, accepted, affirmed and proclaimed,

Commenting on this in 1923 Edmund Curtis, the great historian of medieval Ireland, wrote that this statute declared ‘the legislative and legal independence of Ireland’ and used it as part of his evidence for what he called ‘aristocratic home rule’ in the late medieval lordship.

Communitas Hibernie

**1460 statute- from John T. Gilbert, Account of Facsimiles of National Manuscripts of Ireland.(London Stationary Office 1879)**

In a sense Curtis was right. Such words could have been uttere

d by Grattan and do smack of the rhetoric of eighteenth-century Irish patriots. But we must view this statute in the context of 1460. The first thing to be noticed is the application of the law of corporations to Ireland. The notion of a ‘community of Ireland’ (communitas Hibernie) had long been established in law and had a respectable constitutional pedigree. That community was represented in parliament, which thus became the embodiment of the ‘people’ (populus) of Ireland. Why, then, did the parliament of 1460 feel the need to invoke the notion of Ireland as a corporation to justify the actions which it proposed to take? For different reasons English lawyers in the second half of the fifteenth century were examining the nature of corporations because of litigation involving religious communities, cities and boroughs. It is no coincidence that it was during the second half of the fifteenth century that Irish towns like Dublin became formally incorporated in law, even though they had been acting as corporations for centuries before. Through their mayors and bailiffs they had sued and been sued, had held property in common, issued their own laws and ordinances through their own assemblies, were possessed of franchises which granted them certain immunities under the law of the land, and held common seals which authenticated public instruments issued in their corporate names. Yet the rapid change in legal theories in the second half of the fifteenth century made these same towns, at different times, have themselves legally incorporated for greater protection before the law.
When the Irish parliament of 1460, therefore, declared Ireland to be a corporation it was well ahead of its time. But the notion of incorporation provided parliament with a vital reason for proclaiming the supremacy of the great seal of Ireland over all other seals including, by implication, the great seal of England. One of the most distinguishing marks of incorporation was the exercise of a seal which all members of the corporation must obey. So the parliament, after declaring Ireland to be a corporation, went on to enact that ‘henceforth no person or persons being in the said land of Ireland shall be, by any command given or made under any other seal than the said seal of the said land, compelled to answer to any appeal or any other matter out of the said land’.
It is clear that the purpose of this famous statute was to protect the person of the Duke of York against writs out of England under the great seal, by establishing not only the primacy of the Irish great seal but, more important, that no subject of the king in Ireland could be forced by any minister of the crown to answer any writ under any seal other than the Irish one. This was a revolutionary enactment which would have denied not only the authority of English legislation in Ireland, but even the authority of the king himself acting through his royal administration in England. It would have meant, in effect, that his authority could be exercised in Ireland only when he acted through the administration there. Such a restriction on his prerogative—the ‘pretensed prescription’ as Poynings’ parliament was to term it in 1496—could only be defended by establishing Ireland as a corporation. This was done by what parliament called the ‘ancient custom, privilege and franchise of the said land’, precisely the same formula that was used subsequently elsewhere in claiming corporate status.

‘By the authority of parliament’

There is one other phrase used by this parliament which is no less important in proclaiming as a self-evident fact that Ireland was independent of the English parliament and incorporated in law—’by the authority of parliament’. When the statute was enrolled on the statute roll the formula used was: ‘It is ordained, enacted and established in the said parliament and by authority thereof’. This notion of the authority of parliament, distinct from that of the king, was well established by then. The great English lawyer Sir John Fortescue expressed this notion well in his great book on the governance of England. He pointed out that no English king could impose taxes upon his subjects, ‘nor change their laws, nor make new ones, without the concession or consent of his whole realm expressed in his parliament’. All statutes making law could only be made in a parliament which represented the whole community. So the authority which parliament possessed, which was separate from that of the king, rested on the basic fact that it was an assembly representing the whole community of the land of Ireland. In the earliest roll of parliament to survive into the twentieth century—the fifth of Henry VI (1427)—the phrase ‘by authority of this parliament’ is used and that is defined as ‘by the assent of the Prelates, Earls, Barons and other magnates and the commons of the said land summoned to the said parliament…’.
Even as far back as 1320 the Irish parliament enacted legislation ‘by the common assent of the…archbishops, bishops, earls, barons and the entire commonalty of the land of Ireland’. It was because ‘the entire commonalty’ was in a sense present in parliament that the statutes which that assembly enacted had the force of law which was binding on the entire community. In other words it was because the parliament was a representative assembly that it had an authority which gave its legislation the force of law. The corollary was equally true. You could not be bound by legislation from a parliament in which you were not represented. This was an argument used on a famous occasion in Ireland in 1381. The year before, 1380, the Westminster parliament had legislated that all non-resident Irish landowners and holders of benefices must contribute proportionately to the defence of their land. Since this would affect many clergy—students at Oxford, for example, or even clerks who were abroad on the king’s service—the Irish bishops lodged a protest. In 1381 they sent a petition to the English parliament asking to be exempt from the statute, asserting that they could not be bound by any law enacted in an assembly in which they were not represented and to which they had not even been summoned. So, representation was an essential feature of a parliament whose legislation was to be binding.

Plena potestas

But there was an equally important feature which was also insisted upon. Those elected to represent a community in parliament had to be given the power to bind those who elected them by whatever legislation that parliament enacted. This is something which is taken for granted nowadays when an electorate chooses people to represent them in parliament. But in medieval Ireland it was a power which was specifically handed over to representatives. In 1297, for example, when sheriffs and seneschals were ordered to assemble the full county or liberty court and there to cause two knights to be elected by the community, it was specifically stated in the writs that the knights so elected were to have ‘full power from the whole community of the shire and liberty’ (plenam potestatem de tota communitate comitatus et libertatis) to make laws. In 1300 the writs say that those elected by the counties and boroughs were to have ‘special power as if all were present’. It could hardly be clearer than that. In 1300 the parliament was summoned specifically to grant a subsidy to the king. By then taxation was a matter for parliament and any subsidy granted could not be collected unless the elected representatives had been given the power to grant it by the electors.
If any doubt remained, it was dispelled later in the fourteenth century. In 1371 William of Windsor, the chief governor, was desperately seeking a subsidy. Being in a hurry he summoned what was known as an afforced council—that is a council to which only representatives from a particular district would be elected, in this case Munster. But when the council met, those present refused to grant the subsidy and said to him ‘that without a parliament in which all the prelates, magnates and commons of the said land of Ireland were gathered, they did not wish to give counsel concerning the aforesaid matter’ (i.e. the subsidy). When Windsor did get a parliament together, he was refused a subsidy by the commons. He then shifted the parliament to Ballyduagh, which the commons later described as a ‘waste place’, where no provision had been made for housing or feeding them. They still refused the subsidy and Windsor refused to allow them to disperse. After resisting him for three days, the commons capitulated and granted the subsidy, ‘worn out by their stay’, they later said. Windsor and, as other evidence clearly shows, the king accepted the principle of parliamentary consent to taxation. How they got that consent was another matter. In 1376, after fierce struggles over taxation in three parliaments and one great council (the equivalent of a parliament), the king decided to summon representatives from Ireland to a special parliament in England where they would be asked to consent to taxation. But in every election the county and liberty communities refused to grant their elected representatives the power to grant a subsidy. Even when on a technicality the government quashed the election in County Dublin and held a new one, the electors still refused power to grant a subsidy. In all cases the electors gave the same reasons for their refusal. They were safeguarding the liberties and free customs of the land of Ireland. They also added their poverty as a further excuse, emphasising the heavy expenditure they had already incurred in the defence of their lands. Finally they added a phrase ‘at present we cannot otherwise reply’, implying that normally they would have complied with the writs of summons and returned representatives with full power.
There is one other feature about the returns to these writs of summons. They all disputed the right of the king to summon them to a meeting outside Ireland in England and they say that there was no obligation on them to answer such a summons ‘according to the liberties, privileges, rights, laws and customs of the land of Ireland since the conquest’—the commons of Louth adding for good measure ‘since the conquest and before’! This claim, nowhere denied by the king, might well be true, just as it was true that ever since the thirteenth century the military service owed by tenants in chief to the king did not have to be rendered outside Ireland. If it was true, that representatives of the Irish commons were not obliged to attend parliament in England, then it could equally well be argued that they were not bound by legislation enacted in parliaments which they were not bound to attend, and in which they were not represented—the very argument put up by the Irish bishops in 1381 when they objected to being bound by the 1380 statute of absentees.
That was the matter which in retrospect has made the 1460 parliament so important—’the declaration of the legislative and legal independence of Ireland’, as Curtis put it. No English statute was binding on Ireland and only legislation enacted in an Irish parliament was of force in this land. Space does not permit an examination in detail of the truth or otherwise of this famous proposition. But the greatest legal mind of the fifteenth century, Sir John Fortescue, had no doubt about the matter. In a judgement delivered in the English court of exchequer in 1441 he declared that ‘the land of Ireland is separate from the kingdom of England, for if a tenth or fifteenth be granted here, it shall not bind those in Ireland, and if a statute be made here it shall not bind those in Ireland unless they approve it in their own parliament, even tho’ the king under his great seal shall send this same statute to Ireland’. There is no ambiguity there. Later, in his great work on the laws of England, he argued that the consent of the subject was necessary: ‘Nor does the king there [i.e. in parliament], by himself or by his ministers, impose tallages, subsidies, or any other burden whatever on his subjects, nor change their laws, nor make new ones, without the concession or assent of his realm expressed in parliament’. Assent to new law, no less than assent to taxation, was reserved for the community of the land of Ireland, expressed in its own parliament.

Anglo-Irish separatism

When we look closely at the 1460 statute, we see that the experts who framed the legislation did not even bother to defend this proposition. They stated it as an established fact, a necessary characteristic of Ireland being a corporation. They were not, in fact, proclaiming the independence of the Irish parliament. That was taken for granted. In a later statute, when the same parliament established an independent Irish coinage, they again began with the self-evident truth that Ireland was not bound by English statutes. On this occasion they drew a comparison with Normandy and Guyenne: ‘And inasmuch as not only the duchy of Normandy but also the duchy of Guyenne, when they were under the obedience of the said realm of England, were nevertheless separated from the laws and statutes of the same…so also in like manner the said land of Ireland, although it be under the obedience of the same realm, is nevertheless separate therefrom and from all laws and statutes thereof…’. Notice, too, the use of the term separate—Ireland is ‘separate therefrom’, i.e. from England. Twenty years earlier Fortescue had used the very same term: ‘Ireland is separate from the kingdom of England’.

Three features

The 1460 parliament, then, based its legislation upon three principal features of the medieval Irish parliament. In the first place the assembly was representative of the whole community of Ireland. Maybe it was not based on the kind of popular franchise that we now accept as an essential feature of democracy. But the assembly was not just composed of the ruling class, as was the case elsewhere in Europe and had been the case in Ireland in the first half of the thirteenth century. The house of commons represented a lower order of society, the landed gentry (as they would later be called) of the shires and the merchant class of the boroughs—people who controlled most of the wealth and who were in close touch with the lowest order in town and country. And uniquely in Ireland there was a third house of parliament, representing the lower clergy who elected proctors to parliament in every diocese in the four ecclesiastical provinces of Ireland. Their consent to legislation was just as essential as that of the commons, a fact which was never questioned until they made the political mistake of opposing the reformation legislation which made Henry VIII the head of the Irish church. In order to get over the embarrassment of their opposition, which would make the proposed legislation invalid, history was falsified, their right to be present in parliament was questioned, and then they were abolished. In a sense that really marked the end of the medieval Irish parliament, since that assembly had always been composed of three and not two houses.
That representative character, then, was one of the three chief features of the medieval Irish parliament. The second was that those elected by the local communities were given plena potestas, full power, to bind those communities to whatever was agreed to in parliament. Their consent, the consent of the commons, was necessary, not just to taxation but to all legislation. It is notable, for example, that statutes nearly always began with the words ‘at the request of the commons of the land of Ireland’ and that the legislation was normally initiated with a commons’ petition. Once they gave their consent, the legislation could be imposed on all subjects in the land. The legislation had the force of law.
And the third feature of the Irish parliamentary tradition was that the only laws binding on that community were those which had been enacted in a representative Irish parliament. The community of Ireland was not represented in the English parliament; neither could that community be compelled to elect representatives to attend a parliament in England. Therefore, Ireland was not bound by statutes enacted in England.
Practice may not have always followed the constitutional theory outlined but it was probably a reality more often than historians have been willing to admit. In 1468, for example, a parliament meeting at Drogheda debated the effectiveness of the English statute of rapes of the sixth of Richard II and legislated as follows:

Having consideration how the learned people of this land are of different opinions whether the said statute made in England should be of force in this land without a confirmation of the statute in this land…it is enacted, confirmed and ratified by the authority of the said parliament that the said statute be adjudged and approved in its force and its strength and that the said statute be of force in this land from the 6th March last past.

It is surely significant that in order to put an end to all doubt, the statute was confirmed by an Irish parliament. And not just any Irish parliament, but the one presided over by John Tiptoft, ‘Butcher’ Tiptoft, which attainted the Earl of Desmond and others for treason, thus leading to the execution of the earl, and which was the instrument used by Tiptoft in his programme of ending the Geraldine dominance and of substituting the declared will of his royal master Edward IV. Such a parliament, controlled by Tiptoft, was hardly likely to do anything which might seem in any way to diminish the royal prerogative, unless there was substance to the doubts of the lawyers. At the very least, then, the modern historian must accept that there was a valid tradition behind the claim of the 1460 parliament, even if Irish as well as English legal opinion was divided on the matter.

Poynings’ Law

When the new Tudor government of Henry VII, after facing two dangerous Yorkist plots which had been centred on Ireland, decided that the time had come to revoke the ‘pretensed prescription’ which had been confirmed and approved in the 1460 parliament—i.e. the act which made it high treason to bring any writs out of England attaching any person in Ireland—it did not legislate in an English parliament to abolish that law, but enacted a statute in an Irish parliament, the famous Poynings’ parliament of 1494-95. Surely this indicates a fear that an English statute would not have effect in Ireland. Even the famous ninth act, which we now know as Poynings’ Law, was binding because it was enacted in an Irish parliament. The wider implications of this act, whether intended or not, were to put an effective end to the independence of the Irish parliament but through a statute enacted in an Irish parliament. It seems that even Henry VII accepted what the 1460 parliament had taken for granted—that the land of Ireland was corporate of itself and not in fact bound by statutes enacted in an English parliament.

James Lydon is Emeritus Lecky Professor of Modern Irish History at Trinity College, Dublin.