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The conditions of the innocency or nocency of the
claimants. BUT although the commissioners of the court of claims were thus happily changed, the rigorous con ditions of the innocency or nocency of the claimants, shat had been first resolved upon, were still continued According to these conditions, to prove a person ina nocent, it was not enough to fhew, that he had never taken arms in the late insurrection, or entered into any treaty or association with those who had ; no: for if such a person chanced but to dwell, however inofVOL. II.
Sale and Settlement of Ireland. Cant. Orm, yol ji.
so far troubled and dissatisfied with these proceedings, that they declared they would proceed no farther in the execution of their commission, 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 bis royal person; and there being at the same time several complaints made against them to his majefty, and appeals to him from their decrees, he gave the commissioners leave to return; and at the same time all the other interests sent their deputies, to folicit their rights; in the prosecution whereof, after much time spent, the Duke of Ormond was called from Ireland to courts at which time a third bill was transmitted from the Irish parliament (the black bill), additional and supplemental to the other two, and to reverse many of the decrees made by the commiffioners.” Clarend. Life, vol. ii. p. 329.
“ The king," says Lord Clarendon himself, “ was very tender of the reputation of his commissioners, who had been always estcemed men of great probity and unquestionable repur tation; and though he could not refuse 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 least evidence to question the sincerity of their proceeding, or to make them liable to any reasonable sufpicion of corruption; and the complaints were still prosecuted by those who had that taken from them, which they defixed to keep for themselves.” Ib. p. 231.
fensively, in any of the places occupied by the insurgents, he was to be judged nocent.
This was surely a very hard condition ; " for abundance of Roman catholics,” as Mr. Carte observes," 6€ well-affected to the king, and very averse 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 so; such of them as had offered to take shelter in Dublin, were by the lords justices 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 suffered them to live there in quiet, an equitable man, who considers the circumstances of those times, and the condition of all countries that are in a state of war, will hardly see any iniquity in the receiving that mercy, or in the unavoidable necessity they were under of living in their own houses, as should bring upon those persons the forfeiture of their estates."
But of all the marks of nocency established on this occasion, that of having taken the engagement to Cromwell, was the most extraordinary; for that engage. ment was primarily contrived, during the usurpation, by those very persons, who, after the king's return, had acquired authority and influence enough to have the modelling and imposing of these rigid conditions. From whence resulted this very shocking injustice and absurdity, peculiar, certainly, to the policy of these times, that the original framers and promoters of that engagement, who had themselves voluntarily taken and signed 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 those who abhorred it, when it was forced upon them, and never took it but at the last
extremity, and to avoid a violent and shameful death, were condemned as nocent, not only to the loss of their estates, but also to the mortification of seeing them bestowed upon the very authors and imposers of that engagement.
The time limited for holding these courts found too short,
and not suffered to be enlarged. THE time limited for holding the court of claims was a twelvemonth ; but it sat only
I" from February to August 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 swarm of corrupt witnesses that were daily employed against them. For the suborning of witnesses at these trials was so frequent and barefaced, that their perjuries were sometimes proved in open court, by the testimony of honourable persons, who happened acci. dentally to be present. Sir William Petty boasted, when he had evičted the Duke of Ormond out of some lands before this court, that he had gotten witnesses, that would have sworn through a three-inched board.”*
“ This engagement was, during the usurpation, forced upon
the Irish in to 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 soldiers 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. - Sir William Petty was accused, in the court of claims, of
The time limited for the trial of innocents being expired, Sir Richard Rainsford, one of the commilfioners, and a man of great probity, thought it reasonable to sue for more time, in order to try the claims of thofe who could not be heard within the period above-menti, oned, and who certainly, had as much right to demand the restitution of their estates, until they were heard and found nocent, as those who had undergone their trials, and been adjudged innocent.
66 But these, says Mr. Carte, were left to be ruined, merely for want of that common justice of being heard, which is by all nations allowed to the worst of malefactors. The Duke of Ormond,” adds he, “ did not think it proper to insert a clause in the bill, in the draught of which he was obliged to have the concurrence of the council, for relief of these unheard innocents." The duke himself seemed conscious of the injustice of this omilfion for in a letter to the Earl of Clarendon on that occasion, he says, you
the composition of this council, and parliament, you will not think it probable, that the settlement of Ireland can be made
* Ubi fupra.
* Sale and Settlement.
s Cart. Orm. vol. iii.
fuborning witnesses against Lord Barnwell and thirty-five Irish proprietors; but took care to have his cause brought before his friends in the Irish commons, then fitting, which confisted mostly of men of his own stamp, Cromwellian officers and adventurers, who acquitted him of the charge, on a supposition that the prosecution was malicious, and intended “ to blemish and disable such teftimonies as should 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. * b «' Of four thousand claims of innocents, entered in that court of claims, the commissioners had not time to hear above six hundred, by the 22d of August, when their commission ended.”. Life of Ormond, vol. ii. f. 297.
The Irish commons in their address to the queen (Anne) in 1709, declare, “ that the title of more than half the estates then belonging to the protestants, depended on the forfeitures in the two lait rebellions" (in 1641 and 1688.) Com. Jour. vol.
ii. f, 643
with much favour, or indeed reasonable regard, to the Irish. If it be, it will not pass; 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 solely, to the Duke of Ormond's discretion. His
grace therefore was certainly blameable for not inserting the above-inentioned claufe, even fuppofing him to have been merely passive in the omiflion but that he was equally active with those of the council, in hindering his majesty to grant further time for trying the claims of so many unheard innocents, will, I fear, be found too evident for the credit of his impartiality or honour."
C H A P.
€“ There was a clause in the explanatory) act, that all the Irish should put in their claims by a day appointed, and that they should be determined before another day, which was likewise afligned, which days might be prolonged for once by the lord lieutenant (Ormond) upon such reasons as fatisfied him." Clarend. Life, vol. ii. p. 227.
• There was hardly any step taken in England, with respect to the settlement of Ireland, wherein his grace's advice was not fought for, and followed. His friend the Earl of Orrery told him, “ that he was assured by good hands, that most of the perfons to be restored by name, would be nominated by his" grace, though afterwards inserted 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 majesty had promised willingly to hearken to his grace's repres sentations from Ireland, concerning the qualifications of those whose merit he should defire to recompence.” And in another letter, he expressly told him, " that his majesty had bid him write to his grace to know, what persons he would advise him to nominate to be restored to their estates.” And soon after, the fame lord sent him a warrant, “ which," he said, “ he drew up as near as he could to his grace's fense, by which his majesty empowered him to fend a list of the names.” State Lett. by Brown.