CHAP. XXI. 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 conditions of the innocency or nocency of the claimants, that had been first re solved upon, were still continued. According to these conditions, to prove a person innocent, it was not enough to shew, 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 innofensively, 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, "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 favor 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 houses in the country, where they could 1 Sale and Settlement of Ireland. Cart. Orm. vol. ii, 2 Orm. vol. ii. them, to his majesty, 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 solicit their rights; in the prosecution whereof, after much time spent the duke of Ormond was called from Ireland to court; at which time a third bill was transmitted from the Irish parlia ment (the black bill), additional and supplemental to the other two, and to reverse many of the decrees made by the commissioners.”—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 esteemed men of great probity and unquestionable reputation; and though he could not refuse to receive complaints, yet he gave those who complained no far. ther 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 suspicion of corruption; and the complaints were still prosecuted by those who had that taken from them, which they desired to keep for themselves.”— Tb. p. 231. 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 engagement 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 honors, and employments of the highest authority in the state; while those who abhorred it, when 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. CHAP. XXII. 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 "from February to August fol 1 Cart. Orm. vol. ii. 3 Sale and Settlement, &c. The new earls of Orrery and Montrath, "This engagement was, during the usurpation, forced upon the Irish in so violent and barbarous a manner, that those who refused it, were not only excused from all benefit of the laws, but were also in imminent dan ger 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 lowing; 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 honorable persons, 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 sworn through a three-inched board,”* The time limited for the trial of innocents being expired,3 sir Richard Rainsford, one of the commissioners, and a man of great probity, thought it reasonable to sue 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 estates, until they were heard and found nocent, as those who had undergone their trials, and been judged innocent. "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 4 Ubi supra. 3 Sale and Settlement. 2 Id. ib. f. 393. not produce a certificate of his having taken it; orders which were cruelly executed, even on poor peasants, 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 suborning 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 sitting, which consisted 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 testimonies 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. † 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 last rebellions" (in 1611 and 1688.)-Com Jour. vol iii f. 649, 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 omission; for in a letter to the earl of Clarendon on that occasion, he says, "if you look upon the composition of this council, and parliament, you will not think it probable, that the settlement of Ireland can be made with much favor, or indeed reasonable regard, to the Irish. If it be it will not pass; or if it be not, we must look for all the clamor 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. mentioned clause, even supposing him to have been merely passive in the omission; 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 impartia lity or honor.+ 5 Cart. Orm. vol. iii. "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 assigned, which days might be prolonged for once by the lord lieutenant (Ormond) upon such reasons as satisfied 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 sought for, and followed. His friend the earl of Orrery told him, "that he was assured by good hands, that most of the persons 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 representations from Ireland, concerning the qualifications of those whose merit he should desire 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 same lord sent him a warrant, "which," he said, "he drew up as near as he could to his grace's sense, by which his majesty empowered him to send a list of their names,"-State Lett. by Brown.' CHAP. XXIII. An enlargement of time for hearing all the claimants, by whom hindered. HIS' majesty, by a letter of February 21st, 1662, to the duke of Ormond, had (probably at sir Richard Rainsford's request,) granted an enlargement of time for the trial of those innocents who could not be heard within the year. But he afterwards revoked that grant, at the request of his grace, and the Irish council. This appears from a letter of lord Arlington to his grace, of the 7th of March following, wherein he tells him, that his majesty was surprised at reading a letter from him and the council, of the preceding month, relating to the period that ought to be put to the commissioners' sitting and determining claims, on account of the contradiction, which that letter contained to what himself had judged, upon hear ing that point debated in the (English) council;" but that, "however, his majesty would resume the consideration of it," And accordingly, on the 25th of July following, the same lord Arlington informed his grace and the council,3 that "the king had actually revoked his grant of the 21st of February at their request and solicitation." For after having told them, that upon receipt of their dispatch concerning his majesty's letter of the 21st of February, directed to his grace the lord lieutenant, for receiving, and admiting, in general all such persons to put in their claims before his majesty's commissioners in Ireland, as his grace should judge fit, notwithstanding the time limited by the act of parliment was elapsed, he adds, "that he had acquainted his majesty with their opinion thereupon, and that his majesty had accordingly commanded him to signify to their lordships, that it was his majesty's pleasure that his said letter of the 21st of February should be wholly suspended and laid aside; finding that said letter was gained upon grounds seemingly equitable, though now by their lordships found to be inconsistent with the act of settle1 State Lett, 2 State Lett. Collect by Brown, p. 356. 4 Id. ib. 3 Id. ib. "The king referred the preparing of this bill to Ormond, and the Irish council." Lel. Hist, of Irel, vol. iii. p. 435. "But the lieutenant and coun |