1 The document is referred to in the literature both as the 1643 Declaration and as the 1644 Declaration; no indication of dating is provided by the manuscripts. The 1643 date would seem to derive from the erroneous supposition that the work was published in that year by the Confederate press at Waterford (cf. below, p. 14). Reasons for concluding that the Declaration was written in early 1643/4 are offered below, p. 11. It is thus referred to here as the 1644 Declaration.

2 The term legislative independence is used as a convenient shorthand for the principle that English statutes required to be re-enacted by the Irish parliament before becoming of force in Ireland.

3 Harris, Walter (ed.), Hibernica (2 vols, Dublin, 1747–50)Google Scholar, ii, Preface, dated 16 Jan. 1749[/50]. The text of the Declaration is on pp 1–21. Hibernica was reprinted in 2 vols, Dublin, 1770, and the Declaration reissued on its own under the title Pro aris et focis. The important question stated (Dublin, 1780), with an abbreviated preface, dated 20 Dec. 1779.

4 O’Malley, Liam, ‘Patrick Darcy, Galway lawyer and politician, 1598–1688’ in Cearbhaill, Diarmuid Ó (ed.), Galway: town and gown, 1484–1984 (Dublin, 1984), pp 106–7Google Scholar; Caldicott, C.E.J., intro, to Darcy’s Argument, in Camden Miscellany, xxxi (1992), esp. pp 217–19Google Scholar.

5 Clarke, Aidan, ‘Patrick Darcy and the constitutional relationship between Ireland and Britain’ in Ohlmeyer, Jane H. (ed.), Political thought in seventeenth-century Ireland (Dublin, 2000), pp 48–9Google Scholar. Cf. Siochrú, Micheál Ó, ‘Catholic Confederates and the constitutional relationship between Ireland and England, 1641–1649’ in Brady, Ciaran and Ohlmeyer, Jane H. (eds), British interventions in early modern Ireland (Cambridge, 2005), p. 217Google Scholar.

6 SirBolton, Richard (ed.), The statutes of Ireland … (Dublin, 1621)Google Scholar.

7 The debt was first referred to by Molyneux’s brother-in-law, John Madden, in 1700; see further below, p. 4, esp. n. 17. Scholarly interest in its extent started with McIlwain, C.H., The American Revolution: a constitutional interpretation [1923] (repr., New York, 1958), pp 33–16Google Scholar.

8 Cf. Coke, Edward, Seventh report (London, 1608), f. 17bGoogle Scholar; Harris, Hibernica, ii, 12–13.

9 Harris, Hibernica, ii, 13–15.

10 Ibid., pp 13, 20.

11 Lords’ jn. Ire., i, 218; Commons’ jn. Ire., i, 325–6. The Commons’ journal also confirms that Davys was personally in attendance at the April 1644 session (ibid., p. 325).

12 For the history of T.C.D., MS 647 see O’Sullivan, William, ‘John Madden’s manuscripts’ in Kinane, Vincent and Walsh, Anne (eds), Essays on the early history of Trinity College Dublin Library (Dublin, 2000), pp 104–15Google Scholar; Sir Paul Davys’s will (T.C.D. MS 647, f. 150). The loan to Harris is recorded in T.C.D., MS 653, f. 75.

13 T.C.D., MS 647, f. 21. Mayart’s name was originally written as ‘Sir Sam M:’, the ‘ayart’ being a subsequent interpolation in the same hand.

14 Lords’ jn. Ire., i, 203–9. See further below, pp 12–13.

15 For Mayart and Bolton see Ball, F. E., The judges in Ireland, 1221–1921 (2 vols, London, 1926), ii, 332, 330–31Google Scholar; Oxford D.N.B.

16 T.C.D., MS 647, f. 9.

17 Molyneux’s debt to the Declaration was first referred to by Madden in a letter of 1700 to Henry Dodwell, enclosing a copy of the paper. All that survives is Dodwell’s reply of 7 Dec. 1700 (T.C.D., MS 1995-2008/741), in which he claims to have lost the original letter and thinks that Madden had said ‘Sir Richard Bolton … was the Author of it’. What Dodwell says of the contents of the manuscript identifies it beyond doubt as the Declaration.

18 Now T.C.D., MS 843, pp 67–91. Cf. Bernard, Edward, Catalogi … manuscriptorum Angliae et Hiberniae (2 vols, Oxford, 1697), ii, pt 2, p. 58Google Scholar. The entry for this copy of the Declaration in Madden’s personal catalogue (T.C.D., MS 653, f. 70v — originally drawn up in 1700) also contains a subsequent interpolated ascription to Bolton.

19 Harris, Hibernica, ii, Preface [two unnumbered pages]. The reference is presumably to Darcy’s answer to the first question put to the judges: ‘whether we are to be governed by the laws of England and statutes of force in Ireland only’; cf. Argument in Camden Misc., xxxi, 269–74.

20 Sharp, Granville, A declaration of the people’s natural right to a share in the legislature. Part II. Containing a declaration or defence of the same doctrine … applied particularly to the people of Ireland; in answer to the assertions of several eminent writers, which have hitherto been permitted to pass without due animadversion (2nd ed., London, 1775), p. 80Google Scholar (original emphasis). A Dublin edition appeared in 1776.

21 Harris, Hibernica, ii, Preface, citing Darcy, Argument (1643 ed.), p. 67 (cf. Camden Misc., xxxi, 270); Declaration (Harris, Hibernica, ii, 4). Even were the Declaration to have cited both the statutes referred to in Darcy’s Argument, it would still not have constituted the compelling evidence Harris supposed. Knowledge of these missing acts was already widely diffused through the gloss in Bolton’s Statutes (1621), p. 67 (to which Darcy himself indeed referred). See further below, p. 15.

22 In a number of instances Harris would appear to have used Madden’s other copy of the Declaration (T.C.D., MS 843, pp 67–91) to emend the deficiencies of the MS 647 version.

23 The margins of T.C.D., MS 647, ff 21–63, contain a number of critical comments on Mayart’s objections to the Declaration, in a hand different to that of the transcriber of the text.

24 Cf. the title in T.C.D., MS 647, f. 9, ‘Sir Sam Mayart his Answeare to a Booke entituled a Declaration …’ [title given in full p. 4 above], and that printed in Harris, Hibernica, ii, 22, ‘Sergeant Mayart’s Answer to a Book, Intitled A Declaration … Written by Sir Richard Bolton’.

25 Elsewhere in the preface Harris speaks of ‘the Declaration now published’.

26 Lords’ jn. Ire., i, 208; Commons’ jn. Ire., i, 327. No reference is made to any such publication by Sessions, W.K., The first printers in Waterford, Cork, and Kilkenny, pre1700 (York, 1990)Google Scholar or Sweeney, Tony, Ireland and the printed word … 1475–1700 (Dublin, 1997)Google Scholar.

27 The works of Sir James Ware concerning Ireland, revised … by Harris, Walter (2 vols, 1739–6), ii, bk 2, pp 336–7Google Scholar.

28 Subsequently published as A remonstrance of grievances presented to his most excellent majestie in behalfe of the Catholicks of Ireland (Waterford, 1643).

29 Carte, Thomas, The history of the life of James, the first duke of Ormonde (6 vols, Oxford, 1851), ii, 442–3Google Scholar. These instructions were based on the Confederates’ demands of July 1642 (no longer extant — cf. Ó Siochrtú, Micheál, Confederate Ireland, 1642–1649: a constitutional and political analysis (Dublin, 1999), pp 42–3Google Scholar), submitted to the king in October. See Charles I to Irish lords justices, 12 Jan. 1642/3 (Bodl, Carte MS 7, f. 286).

30 Harris, Hibernica, ii, 9–10, 13. There is no mention in Darcy’s Argument of these important re-enactments of legislation initiating the Henrician Reformation. Nor is it likely that a Confederate propagandist would have engaged in the detailed discussion of the different statutory provisions for the election of (Protestant) bishops in England and in Ireland (ibid., pp 15–17).

31 Remonstrance of grievances … (Waterford, 1643), item 6; McCaffrey, John, ‘To follow the late precedents in England’ in Greer, D.S. and Dawson, N.M. (eds), Mysteries and solutions in Irish legal history (Dublin, 2001), pp 60, 68Google Scholar. The third point was particularly sensitive for royalists, given Charles’s acceptance of the adventurers’ acts in early 1642.

32 O’Malley, ‘Darcy’, pp 106–7. In addition, the detailed exposition of Poynings’ Law (Harris, Hibernica, ii, 8–9) seemingly raises obstacles to the Confederate demand for its abolition, by emphasising the requirement in 11 Eliz., c. 8 for the prior approval of both the Irish Lords and the Commons for such a move.

33 Bolton was not one of the commissioners appointed to receive propositions from the Irish Confederates on 11 January 1642/3; and while he was involved in the negotiations in August 1643 leading to the cessation, he did not sign the privy council approbation of its terms on 15 September 1643: see SirGilbert, J.T. (ed.), The history of the Irish Confederation and the war in Ireland, 1641–3 (7 vols, Dublin, 1882–91), iii, 139, 234–9, 364Google Scholar.

34 Lords’ jn. Ire., i, 179–83.

35 Bolton was alleged to have delayed the departure of the pro-parliament Irish Protestant agents to Oxford in March 1643/4 on the grounds that their petitions were only copies: see The false and scandalous remonstrance of the inhumane and bloody rebels of Ireland … Also a true narration of all the passages concerning the petition of the Protestants of Ireland, presented to His Majestie at Oxford the 18. of April, 1644 (London, 1644), p. 101. This would seem to dispose of the claim that Bolton was sympathetic to the Puritan cause (reiterated in Oxford D.N.B.). Others asserted in 1646 that he was close to the Old English of the Pale (H.M.C., Egmont, i, 285); and indeed his second wife was the daughter of Sir Patrick Barnewall of Turvey.

36 See notes of deliberations relating to legislative independence in September 1644 (Gilbert, Ir. Confed., iii, 286–7).

37 Irish privy council delegates’ submission to king and council, May 1644 (H.M.C., Egmont, i, 219); Digby to Ormond, 9 May 1644 (Carte, Ormonde, vi, 119).

38 See further account of the Lords’ proceedings in April 1644, below, pp 12–13.

39 Clarke, ‘Darcy’, pp 48–9.

40 See the Statutum de Hibernie enacted in Dublin at Easter 1325 (Berry, H.F. (ed.), Early statutes of Ireland (4 vols, 1907), i, 310–13)Google Scholar.

41 Harris, Hibernica, ii, 4; Bolton (ed.), Statutes, p. 67.

42 For the disappearance of the Waterford exemplifications see Mayart’s Answer in Harris, Hibernica, ii, 91, which presumably reflects the general opinion of the lawyers and judges in parliament in April 1644; see further below, p. 13.

43 Clarke, ‘Darcy’, p. 48.

44 The title of the rejoinder to the Remonstrance of Grievances published in London in 1644 (The false and scandalous remonstrance of the inhumane and bloody rebels of Ireland …) asserts that the Remonstrance was ‘printed at Waterford nine moneths after [its presentation to Ormond’s commissioners, 17 March 1642/3] by Tho: Bourck printer to the Confederate-Catholicks, and until then concealed from His Majesties good Protestant subjects’.

45 The only internal indication as to the date of composition is the statement (Harris, Hibernica, ii, 13) that both English and Irish parliaments were then in session. This led Thomas Granville, owner of the eighteenth-century British Library copy, to conclude that the Declaration had been written in 1641 (see note in B.L., Add. MS 33745, f. 46r). However, since the Long Parliament was in continual session from December 1640, the reference to both parliaments being in session seems to be an anticipation of the state of affairs when the Declaration would be laid before parliament rather than to relate to the circumstances when the work was written. The decision to hold a session (which would coincide with the Oxford peace negotiations) was formally announced at the prorogation ceremony on 17 February 1643/4 (Lords’ jn. Ire., i, 200).

46 In this context it is also worth recalling the passage in the Declaration (referred to above, n. 32) raising difficulties for the abolition of Poynings’ Law, the latter being by then a proposal resisted by all shades of Protestant opinion.

47 Lords’ jn. Ire., i, 209. The record is extremely laconic; Bolton’s role is known only from the opening section of Mayart’s Answer (Harris, Hibernica, ii, 23), which dates the introduction of the Declaration to 6 April. See further York, Neil Longley, Neither kingdom nor nation: the Irish quest for constitutional rights, 1698–1800 (Washington, D.C., 1994), pp 16–17Google Scholar.

48 Cf. O’Malley, ‘Darcy’, p. 106, an assumption seemingly extrapolated from later seventeenth-century English practice. Apart from the attack on Vincent Gookin’s unpublished ‘Vindication’ in 1635 (Lords’ jn. Ire., i, 33–5, 57–8; Commons’ jn. Ire., i, 84, 102–7, 117–18), parliamentary inquiries into books in Ireland were unknown in 1644. For this information I am indebted to Professor Aidan Clarke.

49 Ormond, to Digby, , 27 Apr. 1644 (Carte, Ormonde, vi, 100)Google Scholar; Digby to Ormond, 9 May 1644 (ibid., p. 119). For the proceedings in relation to the Covenant see Armstrong, Robert, ‘Protestant churchmen and the Confederate Wars’ in Brady, & Ohlmeyer, (eds), British interventions, p. 237Google Scholar.

50 Commons’ jn. Ire., i, 290. The relevant Commons’ journals (described in Harris’s Preface as lost) were recovered in 1764.

51 Armstrong, Robert, ‘Ormond, Confederate peace talks and Protestant royalism’ in Siochnú, Micheál Ó (ed.), Kingdoms in crisis: Ireland in the 1640s (Dublin, 2001), pp 123–5Google Scholar.

52 Lords’ jn. Ire., i, 209–18 passim. Roscommon, who had met the Confederates as a royal commissioner at Trim in March 1643, was the brother-in-law of Strafford; Bolton had been one of his sponsors on his introduction into the Lords in August 1642. Lambart was also a staunch royalist, but had taken a leading role in Bolton’s impeachment in 1641–3; in April 1644 he commanded the royalist forces in Dublin.

53 Commons’ jn. Ire., i, 321–8.

54 [Sir William Ussher?] to Sir Philip Perceval, 23 Apr. 1644 (H.M.C., Egmont, i, 211–12). Perceval was in Oxford as a delegate from the Irish council.

55 Ibid.; Commons’ jn. Ire., i, 326–8.

56 Lords’ jn. Ire., i, 218.

57 Especially in view of the seemingly short time in which this extensive treatise must have been compiled, that is, between mid-April and 6 May (though what we now have may well have received subsequent revision); cf. Harris, Hibernica, ii, 22–3.

58 H.M.C., Egmont, i, 217–19.

59 On both occasions the sessions were quickly abandoned because of deadlock between the two houses (Lords’ jn. Ire., i, 209–11).

60 Ó Siochrú, Confederate Ireland, pp 73–82.

61 Bolton is said to have been rewarded for his role in the negotiations by the grant of a barony in May 1645 (Richard Cox, Hibernia Anglicana (2 vols, 1689–90), ii, 143), though he does not seem to have assumed the title. Bolton’s degree of commitment to the peace is further revealed by his ‘long and learned’ speech in support of the final treaty in March 1646, after numerous other councillors had protested against it (H.M.C., Egmont, i, 314).

62 See entry for Darcy in Oxford D.N.B.; Camden Misc., xxxi, 217.

63 See above, p. 6.

64 Caldicott would seem to have derived the term ‘missing statutes’ from the Declaration (cf. Harris, Hibernica, ii, 4—5); Camden Misc., xxxi, 217.

65 The statutes in question, from 2 Edw. III, c. 8 to 11 Hen IV, c. 2, are listed chronologically in Caldicott’s Table of Statutes cited, which, however, fails to distinguish between English and Irish acts (Camden Misc., xxxi, 218, 311–12).

66 Camden Misc., xxxi, 218–19; Molyneux, William, The case of Ireland … stated (Dublin, 1698), pp 63–5Google Scholar. Caldicott is correct in identifying Molyneux’s extensive debt to the Declaration (though this remained unacknowledged).

67 Camden Misc., xxxi, 218. Caldicott’s notes to the text of the Argument, however, rightly identify Bolton’s Statutes as Darcy’s source (ibid., 270 n. 68).

68 The distinction is clearly drawn in relation to the Elizabethan Act of Supremacy in Cawdrey’s case (1597); Coke, Edward, Fifth report (London, 1609), f. 29aGoogle Scholar. It is authoritatively expounded in the brief section, ‘The division of acts of parliament’ in Fourth Institute, ch. 1 (though this was not published until 1644).

69 Independent corroboration might seem to be found in the report on a now missing copy of the Declaration, said to have belonged to Sir James Ware, in H.M.C., Appendix to Fourth report (1874), p. 373, which concludes: ‘Followed by the name Richard Bolton, Cancellarius Hiber.’. Ware’s testimony would appear compelling; not only did he sit in the Irish Commons in April 1644, but he was also involved in defeating the hardline Protestants’ attempt to prevent discussion of the Declaration; see above, pp 12–13 and letter to Sir Philip Perceval cited in n. 54. Without recourse to the actual manuscript, however, it is not clear whether the ascription to Bolton is in the same hand as the Declaration, written by Ware himself, or merely a later interpolation. Until it can be examined, therefore, the evidence remains somewhat inconclusive.

70 In preparing this paper, I have benefited from discussions with Aidan Clarke, Micheál Ó Siochrú and Robert Armstrong about the Declaration and its context, and am particularly grateful to Aidan Clarke and Robert Armstrong for their comments on an earlier draft of the paper. Needless to say, any surviving errors are entirely my responsibility.