The Case of Several Subjects in Ireland, Case
THE CASE Of Several of His Majeſties Subjects in Ireland, Commonly called Protectees, Moſt humbly Offer'd to the Conſideration of BOTH Houſes of Parliament.
I Have, for ſeveral Seſſions late paſt, obſerv'd, That when the Parliament had taken into Conſideration the Affairs of Ireland; there have been great Numbers of Petitions given in, by the Roman Catholicks of that Kingdom, ſetting forth their reſpective Caſes in Reference to the Matter then under Debate: And I have as often wonder'd to find no Application made on the behalf of thoſe of that Kingdom commonly called Protectees, I have had the Opportunity to hear much of the Various Complaints of their ſeveral Claſſes there; and upon the whole it appear'd to me, that thoſe called Protectees, as well, in Relation to their Behaviour during the War, as to the Extent and Method of their Suffering ſince then; have had much the ſevereſt Treatment of any concern'd in that Kingdom.
Having this Notion of the Meaſure, theſe poor People have met with; and being of Judgment, that it is the Duty of the meaneſt Member of a Society, as far as he may with due Deference towards the publick, and a convenient Regard to Himſelf, to remove, in Eaſe of his Neighbour, the Oppreſſors Hand; I had long ſince adventur'd thus to have laid their Caſe before this moſt Honourable Aſſembly, but that I was ſtill in hopes ſome One more fully poſſeſs'd of the Matter, and more qualify'd for the Undertaking, would, before now, have taken this Office upon Him.
Theſe Conſiderations had ſtill witheld me, but that now, that the Parliament Commiſſioners are upon the Point of making a general Report of all the Iriſh Forfeitures; it ſeems more than probable, that this may lead to an immediate and final Settlement of that Kingdom; and that once done, a Reprieve after Execution is over, may be as uſeful as any Remonſtrance on the Behalf of theſe People.
Having thus ſet forth the Reaſon, or rather the Neceſſity that has induced me ſo far to forget my own Inſufficiency, as to become an Advocate before ſo Great an Aſſembly, I crave leave, as an Apology for Addreſſing this Caſe to both Houſes of Parliament, to obſerve, That the Juſtice of a Nation is often Arraign'd, as well for Wrongs done thro' want of Information, as for thoſe done, or ſuffered thro' Paſſion, Intereſt or Prejudice; and that therefore as Amicus Curiae, as a true Honourer of this Supream Court, and as One who wiſhes, as is ever Intended, all its Determinations founded in the ſtrickeſt Juſtice; I thought it my Duty at this Juncture to lay this Caſe before both Houſes.
I ſhall now proceed to a General, and plain Account of the Condition and Behaviour of theſe Perſons during the War; and of the Proſecutions, and Seizures ſince then againſt them.
They conſiſt partly of ſuch as were meet Country Gentlemen; ſome, living upon their own Eſtates; ſome, upon their Farms, or other Ways of Induſtry; ſome of them, being Profeſſors of the Law, were, during the Reign of King James in England, advanc'd to the Bench, and the reſt of that Profeſſion practic'd in the Courts there, and continued in their ſaid Stations and Practice, during King James his Abode in Ireland: Some likewiſe, whilſt King James was in England, were made Deputy-Lieutenants, Juſtices of the Peace, Collectors and other Officers of Revenue; and continued in the ſaid Poſts and Stations, or other the like Civil Imployments whilſt King James was in Ireland; ſome of them, being choſen by their Country, did, in hopes of being able, in ſome Meaſure, to quell, or mitigate the Heats, and Violences of others, as evidently appear'd by their Behaviour when there, ſerve in the Parliament held there; and all, and every of them, excepting about four or five, are ſuch as were in no Millitary Station or Service, or ever ſtruck ſtroke in the Cauſe.
Theſe perſons thus Qualify'd, as to their Behaviour, and taking Encouragment from his Majeſties ſeveral Gracious Declarations, and Proclamations, graciouſly tendering his Royal Clemency and Protection to ſuch, as ſhould be the more early in their Obedience, Reſolv'd not to embark themſelves in the Cauſe; and as a clear Evidence of theſe their Intentions, thy continu'd in their Reſpective Places of Reſidence, or as near it, as they could contrive to be in any ſecurity with their Families, till ſuch time as his Majeſty's Troops approach'd ſo near as to be in a condition to preſerve them. And ſo, in the courſe of his Majeſty's March, they ſued for his Royal Protection; and, having obtain'd the ſame, continued, during the two Sieges of Lymerick, and ever ſince, in the moſt dutiful Behaviour and Obedience towards his Majeſty's Government; and ſuch of them as liv'd within the Reach and Power of ſuch Carriſons as held out, and conſequently could not be ſo early in their Obedience, did in like manner, upon the firſt approach of his Majeſty's Troops into that Country, ſue for Protection; and ever ſince liv'd Peaceably and Dutyfully under his Majeſty's Government.
This, upon the beſt Information I could have, and as I am perſwaded, will upon a fair Enquiry appear, is a true general Account of the Behaviour of thoſe called Protectees in that Kingdom.
Their Condition ſtanding thus, they found themſelves ſecure and happy under his Majeſty's Royal Protection, whilſt he continu'd in Perſon there; but upon his Majeſty's Return into England, the Scene was ſoon ſhifted, and their Days of Tryal came on a pace; for as ſoon as the Forms of Judicature were reſtor'd, a manner of proceeding altogether New, Quick, and Comprehenſive was ſet on foot; Liſts were brought in from every Pariſh of all the Catholicks, without any Diſtinction who had reſided there, during K. James, his ſtay in that Country. Indictments of High Treaſon of courſe, and by the lump, exhibited againſt them; and of courſe, as in many Caſes may appear, found too.
This furious Inquiſition having thus far gone on, without Rub, or Obſtacle; the like Spirit of Diligence and Diſpatch appear'd in what was to follow. Writs were iſſu'd out to the Sheriffs, and care taken, that one, and the ſame Return ſhould be made thro'out the Kingdom; for altho' all theſe Perſons, who had thus taken Sanctuary under the Wings of the Government, were then notoriouſly known to be, and daily ſeen, at their reſpective uſual places of Reſidence, except a few who, to prevent any further Jealouſy of their Behaviour, had obtain'd the Lords Juſtice's Paſſes to come for England; having firſt given two or three thouſand Pounds ſufficient Bail to be forth coming, when requir'd; yet Non eſt inventus in Balliva, &c. was the certain Return upon every Writ: And this even in Caſes where the perſons under Proſecution were then actually upon ſome Civil Proceſs, or other Cauſe in cuſtody of the Sheriff, who made the Return.
This was an expedient Thought neceſſary to diſpatch the Proceſs, and the ſooner to bring theſe Perſons to the Condition of being altogether at mercy; and conſequently, it came ſoon to this Iſſue: For in a very few Months, after they had been thus taken into his Majeſty's Royal Protection, they were all, in this manner, to the number of ſome thouſands, attainted of High Treaſon; their Eſtates, whether Leaſehold, or Freehold, ſeized; and all this at a time, when they had late abided the utmoſt Ravage of a licencious Soldiery; and had nothing, that ſtood above ground, left them.
In this diſtreſſed Condition, without Houſe or Home, have they ever ſince ſtruggled with their Wants; and ſuch of them only happy, as are gone to their long Reſt with their Fathers: Nor can they, or their Poſterity ever Intertain any hope of Relief, if their Expectations, upon this Juncture, from ſo Gracious a King, and ſo Wiſe, and ſo Juſt a Parliament, ſhall be intirely diſappointed.
It may be a neceſſary mark of that Duty owing to the King here to obſerve, who are they, who promoted and ſet on foot theſe extraordinary Ways of Violence; for it is as evident, that the King did not give order for ſuch proceedings, as it is, that they were not carry'd on for his Honour or Service. It will perhaps, upon a full Enquiry appear, there were ſeveral Setts and Forms of Men principally concern'd in the upholding theſe Proſecutions; Some animated by paſſion and prejudice of long ſtanding, grounded on ſome ſtruggle about Intereſt, and difference in matter of Religion: Some ſick of their Condition at home, and deſirous from an Engliſh broken Fortune, to become Wealthy Rulers, and Lords in Ireland; ſome who hop'd to have for asking, and others, who deſign'd to buy of them for next to nothing: Some puſh'd on by a Reſentment of late Injuries; and all in fine united to purſue the Chace, and to divide the Spoil amongſt 'em. And as a clear Evidence, that no part of this Reproach is levelled at his Majeſty's Perſon: It is further to be obſerv'd, that ſome ſew of theſe thus attainted Gentlemen, who had the Means left of laying their Caſe before his Majeſty, were reſcu'd from the common Plunder, and admitted to reverſe their Outlawrys: And, without all peradventure, his Royal Clemency had extended to as many more as were equally Innocent, if He had been in like manner apprized of their Caſe and Condition; and how far they are anſwerable to the King, and to this great Tribunal, whoſe province it was to lay the Condition of his People in a full light before Him; and who, on the contrary, have imployed their Intereſt and Authority to block up all the Avenues to his Grace and Favour; and have made uſe of his Name, and the Truſt ſometimes repos'd in them to carry on their Oppreſſion and Avarice, is not for me to Judge.
It now occurs to me, that I have often heard ſome well Meaning, and Worthy Gentlemen Object, why ſuch as were only in the civil Magiſtracy, &c. which, conſidering the force that was upon them, could not be avoided; and conſequently could be no Crime, why ſuch, when they found themſelves indicted, did not appear and take their Tryal? To which may be Anſwer'd:
In the Firſt place, that ſome of them (as before hinted) were come for England; and being under very high Bail, to appear when called for, and having a Paſs from the Government, upon ſuch Bail given, to go into England, were in no Apprehenſion of being charg'd with ſuch Capital Crime without ſome previous and publick Notice given; and theſe were outlaw'd ſome Years before they had heard of any Proſecution againſt them, and an Act of Parliament paſſed there in Confirmation of all Outlawrys, whereby his Majeſty was depriv'd of the Power of giving Order for Reverſal of ſuch Outlawrys.
Secondly, it was ſo contriv'd, that very few of thoſe, who continued in Ireland, could (probably ſpeaking) have any Notice of their being proſecuted, till they were actually outlaw'd; for that the Indictment and Proceſs was, for the moſt part, ſet on foot; and carried on, in ſome Country remote from the place of Reſidence of the Perſon proſecuted; and they being then, by Order of the Government, under pain of Impriſonment, and other Penalties requir'd not to ſtir above Five Miles from Home, they were depriv'd of the Opportunity of diſcovering ſuch Proceedings, till 'twas too late to prevent them.
Laſtly, as to ſuch of them, as had Notice of an Indictment of High Treaſon exhibited againſt them; it is to be conſider'd, how little Reaſon they had ſo far to rely upon their Innocence or early Return to their Duty, as to put their Lives in Predicament, when they found they were to be tryed by Perſons newly exaſperated againſt them; when they daily ſaw, contrary to all Law and Practice, Indictments of High Treaſon exhibited and found againſt perſons, who had long layn in their peaceable Graves, and were paſt the making any Defence in this World; when every day furniſh'd Inſtances of the like Bills for High Treaſon committed in Ireland, during the War, found againſt meer Children, againſt perſons who had not been there in ſome Time before, or ſince the War; and even againſt ſome who had never been in that Kingdom; beſides Indictments, beyond Number, found for Treaſon committed upon the 13th of February, 1688. being the very Day of their Majeſtle's Acceſſion to the Crown; and of which, it was altogether impoſſible to have had Notice in Ireland, in ſome Days after theſe Treaſons are laid. Theſe, and a great Variety of the like Effects of the Reſolution then, by ſome, taken to root out that unfortunate Remnant were ſufficient, perhaps, to deter a wiſer, and more hardy People from putting their Lives in Hazard.
It may here appear proper enough, to ſay ſomewhat of ſuch Acts and Complyances as, in former Civil Wars, have been deem'd not Treaſonable; but I would not ſeem too apt to plunge out of my Depth, and therefore muſt not undertake a Topic I know ſo little of: I am withal not to forget, that I have taken the Liberty to addreſs this Treatiſe to an Aſſembly conſiſting of the Greateſt and Wiſeſt Men; and that, if I can ſay enough to put them on Diſcuſſion of the matter, it will be much more prevalent than any thing I can urge to ſupport it: I ſhall therefore, as to this, think it ſufficient to obſerve, That in all our Civil Wars, the Wiſdom of our Great Council has been ſuch, as not to have inhanc'd theſe ſmall and (if I may ſo ſay) natural Acts of Complyance into Treaſon. There has ever been much allow'd to humane Nature, and the Principle of Self-preſervation; when Men, and their Families are fallen under a Force not to be reſiſted. The Civil Magiſtracy is an Inſtitution meerly for the Welfare and Support of Society, to be a Barryer between the Weak and the Strong; and at all Times, as much as may be, to preſerve Peace and Order; and, in the Times of Trouble and Tumult, has been found as uſeful towards theſe Ends, or rather more than in the Times of Peace, and rightful Adminiſtration; and therefore in all Ages the Magiſtrate, and civil Officer of what kind ſoever have been indulg'd: And thus it has fared with ſome in Ireland, even at the time now Treated of; for there were a great many Proteſtant Inhabitants, as well as Catholicks, who were forc'd to ſubſiſt Troops, and pay Taxes and Subſidys; and likewiſe ſeveral Proteſtants in Poſts and Stations, from the higheſt to the loweſt, as Privy-Counſellors, Judges, Commiſſioners, and other inferior Officers of Revenue, and ſome, even Officers in the Army; and yet upon a Charitable Suppoſition, that they acted in thoſe Poſts and Stations in their own Preſervation, and they having as ſoon as they could reſorted to his Majeſty for Protection, they were receiv'd into Grace and Favour, and no Proſecution ſet up againſt them; and it being a notorious Truth, that the Catholick Protectees ſubmitted as early as their Proteſtant Neighbours, that they were, whilſt the other party prevail'd, under a greater Neceſſity of Complyance; for that any Heſitation or Lukewarmneſs, was deem'd altogether unpardonable in them, and that they have ever ſince behav'd themſelves as dutifully; it ſeems very unequitable, that the Meaſure they have met with ſhould be ſo very different.
I can not omit here to ſpecify their Majeſtie's Royal Declaration of the 22d of February, 1688, whereby a full and free Enjoyment of their reſpective Eſtates, &c. is graciouſly offer'd to all ſuch, as, upon Notice of His Royal Pleaſure therein, ſhould lay down their Arms, and retire to their reſpective places of abode. It muſt be granted, That if theſe Protectees had been actually in Arms, and had, on Notice of this Proclamation, ſurrender'd their Commiſſions, and return'd to their uſual and reſpective Ways of Living, and places of Abode; that they had thereby, whatever payments of Taxes or other unavoidable Acts of Complyance they had been guilty of, been within the expreſs Letter of this Declaration; and it ſeems to me as clear, that ſuch as never took up Arms, but continued in their before uſual Stations, and at their uſual places of Abode, are comprehended within the Scope and meaning of it: For otherwiſe, their having not been once in Arms againſt the Government, is that, which excludes them His Majeſties tender'd Grace and Clemency; which muſt certainly appear an harſh and abſurd Conſtruction: And it is here to be obſerv'd, that this Declaration doth not require their thus quitting their Arms, and retireing within any prefix'd Time, but upon Notice; and whoever conſiders the Strictneſs and Embargoes then of each ſide uſed, to ſhut out all Intelligence muſt admit it very probable, that few or none of thoſe, then reſiding in Ireland, had ever heard of this Declaration, till the Time of the near Approach of His Majeſties Troops; and then it was, that theſe Gentlemen humbly ſued to be receiv'd into Protection, and have liv'd ſufficiently retir'd ever ſince.
I wiſh theſe hardſhips here pointed at, and the many more not enumerated, were juſtly to be look'd upon, as the meer effects of the firſt Heat and Reſentment of Men upon the Cloſe of the War: For there are many perſons in Authority there good natur'd and forgiving enough, to have been weary, before now, of adding to the number of the Afflicted; but it will, perhaps, appear theſe Hardſhips (as to ſome eſpecially) are grounded upon the more laſting Foundation of Lands and Tenements; if it be conſider'd, that ſo lately as the very laſt Vacation, or near thereabouts, a new Proſecution was ſet up all over the Kingdom; and in one County, above one hundred Perſons Indicted of High Treaſon, as committed during the late Troubles, and ſome who were Indicted about three Years ſince, and who reſolv'd to ſtand Tryal have been, every Term ſince then, continu'd upon Bail; and tho' they have each Term preſs'd for a Tryal, yet hitherto neither Diſcharg'd, nor Try'd, but continu'd on, under the innumerable Inconveniencies, and Scandal of ſo high an Accuſation.
I ſhall here, as in other places, ſhun all Aggravation, and only ſay, that this ſurpriſing Scrutiny, after 8 or 9 Years perfect Peace and dutiful Behaviour, does in Conſequence, and in point of Intereſt, affect a great many beſides the Perſons themſelves thus charg'd: For others finding them, for ſuch a number of Years unmoleſted, were under no apprehenſion of their being ſtill in hazard of ſuch publick Charge, and frankly enter'd into Commerce, Marriages, and Dealings of all kinds with them; and have now only a parcel of wretched Criminals to truſt to.
It is to be preſum'd, that theſe are Perſons, who, in the begining, had no viſible Fortunes, and were therefore overlook'd in the Herd: But if ſince they have been too Induſtrious, or, by a fourtune over Favorable, any thing is devolv'd upon them, they may thank themſelves, or their too kind Stars for what has follow'd.
It is here to be fear'd, that ſome, who Preſide of the other ſide the Channel, remain yet too much tainted with the Examples they have ſeen in their Youth of Foreign Confiscations; that, by being not enough acquainted with our more happy Conſtitution, they are apt ſome times to carry things to too high a Pitch, and that now and then they forget, they are in the Service of a truly Great Maſter, who has too many Royal Virtues to want Sentiments of Pitty for His People; and who is too gracious a Prince to delight in Oppreſſion, or to ſuffer it, when he knows it, in his Subſtitutes.
I may now truely ſay for my Self, that I have ſpun out this Diſcourſe to a Bulk much beyond what I propos'd, occaſion'd chiefly thro' a Want of Method, and a Diſuſe of Undertakings of the Kind; I muſt therefore haſten to a Cloſe; and if, by any thing I have herein offer'd, I become Acceſſary to their being ſo far taken into Conſideration, as that ſome regard may, at the laſt, be had to their quiet Behaviour, during the War, and early Submiſſion afterwards; I ſhall think my Time happily imploy'd.
There are Sufferers of other Kinds there, whoſe Caſe and Circumſtances, if fully underſtood, might, perhaps, before ſo Juſt, ſo Equal, and ſo Fatherly a Tribunal, render them deſerving of ſome Marks of a favourable Diſtinction from the more obſtinate, and long perſiſting: But their Caſe being beſide my purpoſe, I ſhall only ſlightly take Notice, That there are of theſe ſome Young Women of Quality, and meer Orphans, who, upon ſolemn Marriage Settlements long before this Revolution, had ſuitable Fortunes ſecur'd on the Father's Eſtate; but it being done by the uſual Proviſo, that the Father ſhould have Power by his laſt Will, &c. to charge the Eſtate with ſo much for the Daughters of that Marriage, and the Father being outlaw'd and conſequently the laſt will ſet aſide, tho' of no uſe or neceſſity here, than to apportion what each Daughter was to have had of ſuch a Sum in the whole aſcertain'd by the Settlement; yet by the Father's falling under ſuch a Legal Diſſability, tho' outlaw'd after Death, or in England, at a time when it was impoſſible for him ſo much as to have heard of any Proſecution; theſe Young Women are expos'd to the loweſt Wants, and to, almoſt, a Neceſſity of being forc'd upon the vileſt Courſes.
There are of theſe others, whoſe Fathers happen'd to be of King James his Menial Servants, and conſequently the more oblig'd not to abandon their Maſter in his adverſe Fortune; and altho' the Paternal Eſtate is in ſome, or moſt of theſe Caſes ſecur'd to the Mother, and Children after the Fathers Death; yet, in the mean time, they are both left deſtitute of any means of Subſiſtance.
There are ſome, who never bore Arms in Ireland, but retir'd ſoon into France; and paſs'd their Time in an abſolute Privacy there, without any Dependance upon, or Relation to the late King James; and yet, by Outlawrys, and Attainders, incurr'd in their abſence, they, and their numerous Families, without any ſort of Proviſion, are for ever excluded.
Laſtly, there are of theſe ſome Eminent Perſons, who now, and heretofore, have deſerv'd well of the Crown of England, who being placed in Foreign Governments by K. Charles the Second, continued, notwithſtanding the late Revolution in the faithful Diſcharge of their Duty, and effectually imploy'd their Fortune and Credit in ſupport of the Engliſh Rights and Sovereignity abroad; and being now return'd home, find themſelves incumber'd with empty Titles, and what elſe they were to have deriv'd from their Anceſtors, ſwallow'd up in the common gulf of Forfeitures, and no ſort of Support, or Proviſion left for them.
It is here again to his Glory to be noted, that ſuch of theſe, as had Friends in Credit enough, to lay their Caſe before his Majeſty, had the effects of his uſual Bounty and Clemency; and, it is not to be doubted, but that, upon a fair and equal Repreſentation, his Clemency would extend to all the reſt and outgo all his Royal Predeceſſors: And not only in their Reigns, but during the Oppreſſions of the late Civill Wars; the Widows, and Orphans of the then reputed Offenders were ſo provided for, as not to fall into too low and abject a Condition; and even ſuch of the Delinquents themſelves (as then term'd) who ſtay'd at home, were ſo far conſider'd as that they, and their Poſterity were upon a general Rule ſet up, reprized in one Province, in ſome proportion to what they had loſt in another.
I cannot fear to be ſo miſunderſtood, as from this Relation of what was then done to intend any reflection upon the beſt of Governments; I mention this Chriſtian Moderation practic'd in the worſt of Times, from thence only to inſinuate how much more may be hop'd for from ſo excellent a Conſtitution; how conformable it may be found to the practice of the like good Engliſh Kings, and Parliaments beretofore to ſet up Rules, and Qualifications by which to cenſure Men and Actions, by which ſo far to diſtinguiſh the Time, and the Behaviour of Men, as to propound ſome Meaſure of Puniſhment upon which ſuch, as by their being unactive in the War, or early Repentance and Return to their Duty, or other moving Circumſtances may have qualify'd themſelves for ſome Degree of Mercy, may artone to the publick for their Offences.
Having thus far taken the Liberty to point at ſome moderate Expedients, I hope I may without Offence humbly offer to Conſideration, that thoſe, who were then in that Kingdom of what Judgment or Inclination ſoever, were upon the Principle of Self-preſervation, under an apparent Neceſſity of ſubmitting to the then prevailing Power; that the then late King was in Perſon there, at the Head of ſuch Troops as could enforce their Obedience; that how clearly ſoever the great Turn of thoſe Times was grounded upon right Reaſon and Religion, yet there were numbers of wiſe, good and learned Men even in England, where, by the King's having withdrawn himſelf, the Matter ſeem'd leſs doubtful, who remain'd for ſome time unreſolv'd as to their Duty upon that Conjuncture. They are often the more laſting, that are the more ſlowly Receiv'd Impreſſions; and they who took time and pains to convince themſelves of their Obligation to ſubmit upon this great Occaſion, will, perhaps, prove as faithful as they who more readily apprehended their Duty, and aſſented to what was done. I ſhall not, tho' I mean all poſſible Deference towards the preſent Eſtabliſhment, preſume to dwell upon this Argument, for fear of being thought (beyond my Intention) to make other uſe of it than in Mitigation only; and if upon what is here humbly offer'd, and what more may occur to ſo Great and Wiſe an Aſſembly, in extenuation of their Faults, they ſhall nevertheleſs be adjudg'd unworthy any favourable Compromiſe; I think, I may ſo far denounce againſt them, (as that, in Addition to their own) the Sins of their Fathers are upon them, and that their Kingdom is not of this World.
FINIS.
End of the text · Thomas Case, The Case of Several Subjects in Ireland (1698)