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, ob∣serv'd, That when the Parliament had taken into Consideration the Affairs of Ireland; there have been great Num∣bers of Petitions given in, by the Roman Ca∣tholicks of that Kingdom, setting forth their re∣spective Cases in Reference to the Matter Page 2then under Debate: And I have as often won∣der'd to find no Application made on the be∣half of those of that Kingdom commonly cal∣led 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 Be∣haviour during the War, as to the Extent and Method of their Suffering since then; have had much the severest Treatment of any con∣cern'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 As∣sembly, 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.Page 3
These Considerations had still witheld me, but that now, that the Parliament Commissi∣oners are upon the Point of making a gene∣ral 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 ra∣ther 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 Ar∣raign'd, as well for Wrongs done thro' want of Information, as for those done, or suffe∣red thro' Passion, Interest or Prejudice; and that therefore as Amicus Curiae, as a true Ho∣nourer of this Supream Court, and as One who wishes, as is ever Intended, all its De∣terminations founded in the strickest Justice; I thought it my Duty at this Juncture to lay this Case before both Houses.Page 4
I shall now proceed to a General, and plain Account of the Condition and Behaviour of these Persons during the War; and of the Pro∣secutions, 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 o∣ther Ways of Industry; some of them, be∣ing 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 like∣wise, whilst King James was in England, were made Deputy-Lieutenants, Justices of the Peace, Collectors and other Officers of Reve∣nue; 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 Be∣haviour Page 5when there, serve in the Parliament held there; and all, and every of them, ex∣cepting 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 Be∣haviour, 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 con∣trive to be in any security with their Fami∣lies, 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 Pro∣tection; and, having obtain'd the same, con∣tinued, during the two Sieges of Lymerick, and ever since, in the most dutiful Behaviour and Obedience towards his Majesty's Govern∣ment; and such of them as liv'd within the Page 6Reach 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 un∣der 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 Ac∣count of the Behaviour of those called Protec∣tees in that Kingdom.
Their Condition standing thus, they found themselves secure and happy under his Maje∣sty'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 re∣stor'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 Di∣stinction who had resided there, during K. Page 7James, 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 Spi∣rit 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 usu∣al 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 eve∣ry Writ: And this even in Cases where the per∣sons under Prosecution were then actually up∣on some Civil Process, or other Cause in custo∣dy of the Sheriff, who made the Return.Page 8
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 Ma∣jesty's Royal Protection, they were all, in this manner, to the number of some thousands, at∣tainted of High Treason; their Estates, whe∣ther Leasehold, or Freehold, seized; and all this at a time, when they had late abided the utmost Ravage of a licencious Soldiery; and had no∣thing, 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 Fa∣thers: Nor can they, or their Posterity ever Intertain any hope of Relief, if their Expec∣tations, upon this Juncture, from so Gracious a King, and so Wise, and so Just a Parlia∣ment, shall be intirely disappointed.
It may be a necessary mark of that Duty owing to the King here to observe, who are Page 9they, 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 a∣bout Interest, and difference in matter of Re∣ligion: 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 Re∣sentment of late Injuries; and all in fine uni∣ted to pursue the Chace, and to divide the Spoil amongst 'em. And as a clear Evi∣dence, that no part of this Reproach is level∣led at his Majesty's Person: It is further to be observ'd, that some sew of these thus attain∣ted Gentlemen, who had the Means left of laying their Case before his Majesty, were res∣cu'd from the common Plunder, and admitted Page 10to reverse their Outlawrys: And, without all peradventure, his Royal Clemency had exten∣ded to as many more as were equally Inno∣cent, 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 imploy∣ed 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 Op∣pression 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 Ma∣gistracy, &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 Page 11before 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 with∣out some previous and publick Notice gi∣ven; and these were outlaw'd some Years before they had heard of any Prosecution a∣gainst them, and an Act of Parliament pas∣sed 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 out∣law'd; for that the Indictment and Process was, for the most part, set on foot; and car∣ried on, in some Country remote from the place of Residence of the Person prosecuted; and they being then, by Order of the Go∣vernment, under pain of Imprisonment, and other Penalties requir'd not to stir above Five Page 12Miles 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 exhi∣bited against them; it is to be consider'd, how little Reason they had so far to rely up∣on 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 exhibi∣ted 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, du∣ring 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 Page 13Day of their Majestle's Accession to the Crown; and of which, it was altogether impossible to have had Notice in Ireland, in some Days af∣ter these Treasons are laid. These, and a great Variety of the like Effects of the Reso∣lution 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 As∣sembly 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 Page 14and (if I may so say) natural Acts of Comply∣ance into Treason. There has ever been much allow'd to humane Nature, and the Principle of Self-preservation; when Men, and their Fa∣milies are fallen under a Force not to be re∣sisted. 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 Ad∣ministration; and therefore in all Ages the Ma∣gistrate, 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 Pro∣testant 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, Com∣missioners, and other inferior Officers of Re∣venue, and some, even Officers in the Army; and yet upon a Charitable Supposition, that Page 15they acted in those Posts and Stations in their own Preservation, and they having as soon as they could resorted to his Majesty for Pro∣tection, they were receiv'd into Grace and Fa∣vour, and no Prosecution set up against them; and it being a notorious Truth, that the Ca∣tholick Protectees submitted as early as their Protestant Neighbours, that they were, whilst the other party prevail'd, under a greater Ne∣cessity of Complyance; for that any Hesitati∣on or Lukewarmness, was deem'd altogether unpardonable in them, and that they have e∣ver 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 Ma∣jestie's Royal Declaration of the 22d of Febru∣ary, 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 Pro∣tectees had been actually in Arms, and had, on Notice of this Proclamation, surrender'd their Page 16Commissions, and return'd to their usual and respective Ways of Living, and places of A∣bode; that they had thereby, whatever pay∣ments 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 pla∣ces 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 ab∣surd Construction: And it is here to be ob∣serv'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 Em∣bargoes 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 Ma∣jesties Troops; and then it was, that these Gen∣tlemen Page 17humbly sued to be receiv'd into Pro∣tection, 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 Pro∣secution was set up all over the Kingdom; and in one County, above one hundred Per∣sons Indicted of High Treason, as committed during the late Troubles, and some who were Indicted about three Years since, and who re∣solv'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 con∣tinu'd Page 18on, under the innumerable Inconvenien∣cies, and Scandal of so high an Accusation.
I shall here, as in other places, shun all Aggravation, and only say, that this surpri∣sing 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 apprehen∣sion of their being still in hazard of such pub∣lick Charge, and frankly enter'd into Com∣merce, 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 them∣selves, or their too kind Stars for what has follow'd.Page 19
It is here to be fear'd, that some, who Pre∣side of the other side the Channel, remain yet too much tainted with the Examples they have seen in their Youth of Foreign Confisca∣tions; 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 Ma∣ster, who has too many Royal Virtues to want Sentiments of Pitty for His Peo∣ple; and who is too gracious a Prince to de∣light 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.Page 20
There are Sufferers of other Kinds there, whose Case and Circumstances, if fully under∣stood, might, perhaps, before so Just, so E∣qual, and so Fatherly a Tribunal, render them deserving of some Marks of a favourable Di∣stinction 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 Pow∣er by his last Will, &c. to charge the Estate with so much for the Daughters of that Mar∣riage, and the Father being outlaw'd and con∣sequently 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 Prose∣cution; these Young Women are expos'd to Page 21the lowest Wants, and to, almost, a Necessity of being forc'd upon the vilest Courses.
There are of these others, whose Fathers hap∣pen'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 af∣ter 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, with∣out 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 Per∣sons, who now, and heretofore, have deserv'd well of the Crown of England, who being pla∣ced in Foreign Governments by K. Charles the Page 22Second, 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 re∣turn'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 e∣nough, to lay their Case before his Majesty, had the effects of his usual Bounty and Cle∣mency; and, it is not to be doubted, but that, upon a fair and equal Representation, his Cle∣mency would extend to all the rest and out∣go all his Royal Predecessors: And not only in their Reigns, but during the Oppressions of the late Civill Wars; the Widows, and Or∣phans of the then reputed Offenders were so pro∣vided for, as not to fall into too low and ab∣ject a Condition; and even such of the De∣linquents themselves (as then term'd) who stay'd at home, were so far consider'd as that Page 23they, 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 men∣tion 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 ex∣cellent a Constitution; how conformable it may be found to the practice of the like good Eng∣lish Kings, and Parliaments beretofore to set up Rules, and Qualifications by which to censure Men and Actions, by which so far to distin∣guish the Time, and the Behaviour of Men, as to propound some Measure of Punishment up∣on 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 De∣gree 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 Page 24without Offence humbly offer to Considerati∣on, that those, who were then in that King∣dom 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 Rea∣son and Religion, yet there were numbers of wise, good and learned Men even in England, where, by the King's having withdrawn him∣self, the Matter seem'd less doubtful, who re∣main'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 Ob∣ligation to submit upon this great Occasion, will, perhaps, prove as faithful as they who more readily apprehended their Duty, and assent∣ed to what was done. I shall not, tho' I mean all possible Deference towards the present Esta∣blishment, presume to dwell upon this Argu∣ment, for fear of being thought (beyond my Page 25Intention) 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 exte∣nuation of their Faults, they shall neverthe∣less 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.