The Case of Several Subjects in Ireland

THE CASE Of Several of His Majesty's 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, observed, That when the Parliament had taken into Consideration the Affairs of Ireland; there have been great Numbers of Petitions given in, by the Roman Catholics of that Kingdom, setting forth their respective Cases in Reference to the Matter then under Debate: And I have as often wondered 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 appeared 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 concerned 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 public, and a convenient Regard to Himself, to remove, in Ease of his Neighbor, the Oppressors Hand; I had long since adventured thus to have laid their Case before this most Honorable Assembly, but that I was still in hopes some One more fully possessed of the Matter, and more qualified for the Undertaking, would, before now, have taken this Office upon Him.

These Considerations had still withheld 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 Supreme 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, advanced 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 Employments 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 appeared 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 Majesty's 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 continued 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 approached 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 obtained 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 lived 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 lived Peaceably and Dutyfully under his Majesty's Government.

This, upon the best Information I could have, and as I am persuaded, 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 continued in Person there; but upon his Majesty's Return into England, the Scene was soon shifted, and their Days of Trial came on a pace; for as soon as the Forms of Judicature were restored, a manner of proceeding altogether New, Quick, and Comprehensive was set on foot; Lists were brought in from every Parish of all the Catholics, 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 appeared 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 throughout 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 obtained the Lord's Justice's Passes to come for England; having first given two or three thousand Pounds sufficient Bail to be forth coming, when required; 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 licentious 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 entirely 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 carried on for his Honor or Service. It will perhaps, upon a full Enquiry appear, there were several Setts and Forms of Men principally concerned 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 Lord's in Ireland; some who hoped to have for asking, and others, who designed 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 observed, 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 employed their Interest and Authority to block up all the Avenues to his Grace and Favor; 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 Trial? 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 charged with such Capital Crime without some previous and public 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 deprived of the Power of giving Order for Reversal of such Outlawrys.

Secondly, it was so contrived, 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 required not to stir above Five Miles from Home, they were deprived 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 considered, 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 tried 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 lain in their peaceable Graves, and were past the making any Defense in this World; when every day furnished Instances of the like Bills for High Treason committed in Ireland, during the War, found against mere 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 deemed 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 anything 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 allowed to human 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 merely 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 indulged: 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 Catholics, who were forced to subsist Troops, and pay Taxes and Subsidys; and likewise several Protestants in Posts and Stations, from the highest to the lowest, as Privy-Counselors, 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 received into Grace and Favor, and no Prosecution set up against them; and it being a notorious Truth, that the Catholic Protectees submitted as early as their Protestant Neighbors, that they were, whilst the other party prevailed, under a greater Necessity of Complyance; for that any Hesitation or Lukewarmness, was deemed altogether unpardonable in them, and that they have ever since behaved themselves as dutifully; it seems very unequitable, that the Measure they have met with should be so very different.

I cannot omit here to specify their Majesty's Royal Declaration of the 22d of February, 1688, whereby a full and free Enjoyment of their respective Estates, &c. is graciously offered 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 returned 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 Majesty's tendered Grace and Clemency; which must certainly appear an harsh and absurd Construction: And it is here to be observed, that this Declaration doth not require their thus quitting their Arms, and retireing within any prefixed 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 Majesty's Troops; and then it was, that these Gentlemen humbly sued to be received into Protection, and have lived sufficiently retired ever since.

I wish these hardships here pointed at, and the many more not enumerated, were justly to be looked upon, as the mere effects of the first Heat and Resentment of Men upon the Close of the War: For there are many persons in Authority there good natured 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 considered, 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 resolved to stand Trial have been, every Term since then, continued upon Bail; and though' they have each Term pressed for a Trial, yet hitherto neither Discharg'd, nor Try'd, but continued 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 charged: For others finding them, for such a number of Years unmolested, were under no apprehension of their being still in hazard of such public Charge, and frankly entered 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 presumed, that these are Persons, who, in the beginning, 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, anything is devolv'd upon them, they may thank themselves, or their too kind Stars for what has followed.

It is here to be feared, 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 sometimes 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 truly say for my Self, that I have spun out this Discourse to a Bulk much beyond what I proposed, occasioned chiefly thro' a Want of Method, and a Disuse of Undertakings of the Kind; I must therefore hasten to a Close; and if, by anything I have herein offered, 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 employ'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 favorable 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 mere Orphans, who, upon solemn Marriage Settlements long before this Revolution, had suitable Fortunes secured 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, though' of no use or necessity here, than to apportion what each Daughter was to have had of such a Sum in the whole ascertained by the Settlement; yet by the Father's falling under such a Legal Dissability, though' 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 exposed to the lowest Wants, and to, almost, a Necessity of being forced upon the vilest Courses.

There are of these others, whose Fathers happened to be of King James his Menial Servants, and consequently the more obliged not to abandon their Master in his adverse Fortune; and altho' the Paternal Estate is in some, or most of these Cases secured 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 retired soon into France; and passed their Time in an absolute Privacy there, without any Dependance upon, or Relation to the late King James; and yet, by Outlawrys, and Attainders, incur'd in their absence, they, and their numerous Families, without any sort of Provision, are forever excluded.

Lastly, there are of these some Eminent Persons, who now, and heretofore, have deserved 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 employ'd their Fortune and Credit in support of the English Rights and Sovereignity abroad; and being now returned home, find themselves incumber'd with empty Titles, and what else they were to have derived from their Ancestors, swallowed 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 Civil 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 termed) who stayed at home, were so far considered 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 hoped 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 qualified themselves for some Degree of Mercy, may artone to the public 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 seemed less doubtful, who remained for some time unresolv'd as to their Duty upon that Conjuncture. They are often the more lasting, that are the more slowly Received 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, though' 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 offered, and what more may occur to so Great and Wise an Assembly, in extenuation of their Faults, they shall nevertheless be adjudged unworthy any favorable 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.