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The conditions of the innocency or nocency of the claimants.

BUT although the commiffioners of the court of claims were thus happily changed, the rigorous con ditions of the innocency or nocency of the claimants, that had been first resolved upon, were still continued. According to thefe conditions, to prove a perfon in nocent,' it was not enough to fhew, that he had never taken arms in the late infurrection, or entered into any treaty or affociation with those who had; no; for if fuch a perfon chanced but to dwell, however inof VOL. II. fenfively,

Sale and Settlement of Ireland. Cart. Orm. vol. ii.

so far troubled and diffatisfied with thefe proceedings, that they declared they would proceed no farther in the execution of their commiffion, until they could receive his majesty's farther pleasure; and that they might more effectually receive it, they defired leave from the king that they might attend his royal perfon; and there being at the fame time feveral complaints made against them to his majesty, and appeals to him from their decrees, he gave the commiffioners leave to return; and at the fame time all the other interests fent their deputies, to folicit their rights; in the profecution whereof, after much time spent, the Duke of Ormond was called from Ireland to court, at which time a third bill was tranfmitted from the Irish parlia ment (the black bill), additional and fupplemental to the other two, and to reverfe many of the decrees made by the commiffioners." Clarend. Life, vol. ii. p. 329.

"The king," fays Lord Clarendon himself, "was very tender of the reputation of his commiffioners, who had been always eftcemed men of great probity and unquestionable repu tation; and though he could not refufe to receive complaints, yet he gave those who complained no farther countenance, than to give the others opportunity to vindicate themselves. Nor did there appear the leaft evidence to question the fincerity of their proceeding, or to make them liable to any reasonable sufpicion of corruption; and the complaints were ftill profecuted by those who had that taken from them, which they desired to keep for themselves." Ib. p. 231.

fenfively, in any of the places occupied by the infurgents, he was to be judged nocent.

This was furely a very hard condition; " for abundance of Roman catholics," as Mr. Carte observes,2 "well affected to the king, and very averfe to the rebellion of their countrymen, lived quietly in their own houses, within the quarters of the rebels; who out of reverence to their virtues, or favour to their religion, allowed them to do fo; fuch of them as had offered to take fhelter in Dublin, were by the lords juftices banished thence on pain of death by public proclamation, and ordered to retire to their own houfes in the country, where they could not help falling under the power of the rebels; and if these fuffered them to live there in quiet, an equitable man, who confiders the circumftances of thofe times, and the condition of all countries that are in a state of war, will hardly fee any iniquity in the receiving that mercy, or in the unavoidable neceffity they were under of living in their own houfes, as fhould bring upon those perfons the forfeiture of their estates."

a

But of all the marks of nocency established on this occafion, that of having taken the engagement to Cromwell, was the most extraordinary; for that engage. ment was primarily contrived, during the ufurpation, by thofe very perfons, who, after the king's return, had acquired authority and influence enough to have the modelling and impofing of these rigid conditions. From whence refulted this very fhocking injuftice and abfurdity, peculiar, certainly, to the policy of these times, that the original framers and promoters of that engagement, who had themfelves voluntarily taken and figned it, and had compelled others to take it, were not only held innocent, but rewarded with great honours, and employments of the highest authority in the state; while thofe who abhorred it, when it was forced upon them, and never took it but at the last extremity,

3

2 Orm. vol. ii.

3 Sale and Settlement, &c.

a The new Earls of Orrery and Montrath.

extremity, and to avoid a violent and fhameful death," were condemned as nocent, not only to the lofs of their eftates, but alfo to the mortification of seeing them bestowed upon the very authors and impofers of that engagement.

The time limited for holding thefe courts found too short, and not fuffered to be enlarged.·

THE time limited for holding the court of claims was a twelvemonth; but it fat only " from February to Auguft following; during which space, the claims of near a thousand innocents were heard, whereof half were declared innocent, notwithstanding the many difficulties they had to encounter, as well from the rigorous conditions before-mentioned, as from a fwarm of corrupt witneffes that were daily employed against them. For the fuborning of witneffes at these trials was fo frequent and barefaced, that their perjuries were fometimes proved in open court,' by the testimony of honourable perfons, who happened accidentally to be present. Sir William Petty boasted,

when he had evicted the Duke of Ormond out of some lands before this court, that he had gotten witnesses, that would have fworn through a three-inched board.”* I 2 The

'Cart. Orm. vol. ii.

2 Id. ib. f. 393.

"This engagement was, during the ufurpation, forced upon the Irish in fo violent and barbarous a manner, that those who refused it, were not only excluded from all benefit of the laws, but were also in imminent danger of their lives from the public orders given to Cromwell's foldiers to allow quarters to no person, whom they should meet in their way, that could not produce a certificate of his having taken it; orders which were cruelly executed, even on poor peafants, when through ignorance or forgetfulness, they had left their certificates behind them." Sale and Settlement of Ireland.

a Sir William Petty was accufed, in the court of claims, of fuborning

The time limited for the trial of innocents being expired, Sir Richard Rainsford, one of the commiffioners, and a man of great probity, thought it reasonable to fue for more time, in order to try the claims of those who could not be heard within the period above-mentioned, and who certainly, had as much right to demand the restitution of their eftates, until they were heard and found nocent, as those who had undergone their trials, and been adjudged innocent. "But thefe,* fays Mr. Carte, were left to be ruined, merely for want of that common juftice of being heard, which is by all nations allowed to the worft of malefactors." The Duke of Ormond," adds he, "did not think it proper to infert a claufe in the bill, in the draught of which he was obliged to have the concurrence of the council, for relief of thefe unheard innocents." The duke himself feemed conscious of the injustice of this omiffion ; for in a letter to the Earl of Clarendon on that occafion, he fays, "if you look upon the compofition of this council, and parliament, you will not think it probable, that the fettlement of Ireland can be made with

? Sale and Settlement.

5 Cart. Orm. vol. iii.

• Ubi fupra.

fuborning witneffes against Lord Barnwell and thirty-five Irish proprietors; but took care to have his caufe brought before his friends in the Irish commons, then fitting, which confifted mostly of men of his own ftamp, Cromwellian officers and adventurers, who acquitted him of the charge, on a fuppofition that the profecution was malicious, and intended" to blemish and difable fuch teftimonies as fhould be brought into that court (of claims) against rebels, and particularly against the thirty-five Irish proprietors above-mentioned." See Com. Journ. vol. ii. f. 281. & alibi.

bOf four thoufand claims of innocents, entered in that court of claims, the commiffioners had not time to hear above fix hundred, by the 22d of Auguft, when their commiffion ended." Life of Ormond, vol. ii. f. 297.

The Irish commons in their addrefs to the queen (Anne) in 1709, declare," that the title of more than half the estates then belonging to the proteftants, depended on the forfeitures in the two laft rebellions" (in 1641 and 1688.) Com. Jour. vol. iii. f. 643

with much favour, or indeed reasonable regard, to the Irish. If it be, it will not pafs; and if it be not, we must look for all the clamour, that can be raised by undone men."

The king had committed the drawing up of that bill chiefly, if not folely, to the Duke of Ormond's difcretion. His grace therefore was certainly blameable for not inferting the above-mentioned claufe, even fuppofing him to have been merely paffive in the omiffion; but that he was equally active with thofe of the council, in hindering his majefty to grant further time for trying the claims of fo many unheard innocents, will, I fear, be found too evident for the credit of his impartiality or honour.d

CHA P.

"There was a claufe in the (explanatory) act, that all the Irish fhould put in their claims by a day appointed, and that they should be determined before another day, which was likewife affigned, which days might be prolonged for once by the lord lieutenant (Ormond) upon fuch reafons as fatisfied him.” Clarend. Life, vol. ii. p. 227.

* There was hardly any step taken in England, with respect to the fettlement of Ireland, wherein his grace's advice was not fought for, and followed. His friend the Earl of Orrery told him," that he was affured by good hands, that most of the per fons to be restored by name, would be nominated by his grace, though afterwards inferted in the act by his majesty." State Lett. vol. i. p. 184. Lord Orrery's information was very right; for Lord Arlington had before acquainted Ormond," that his majefty had promifed willingly to hearken to his grace's repre fentations from Ireland, concerning the qualifications of thofe whose merit he should defire to recompence." And in another letter, he expressly told him," that his majefty had bid him write to his grace to know, what perfons he would advise him. to nominate to be restored to their eftates." And foon after, the fame lord fent him a warrant, "which," he said, " he drew up as near as he could to his grace's fenfe, by which his majefty empowered him to fend a lift of the names." State Lett. by Brown.