NUM B. XVI.

[Account of the Debates on the Popery Laws, 2 Ann.] The feveral Arguments of Sir Theobald Butler, Counfellor Malone, and, Sir Stephen Rice, at the Bar of the House of Commons of Ireland, February 22d; and at the Bar of the Houfe of Lords, February 28th, 1703, against paffing the Bill intitled, An Act to prevent the further Growth of Popery.

[See Review, vol. ii. p. 237.]

THE papifts of Ireland obferving, that the house of com

mons were preparing the heads of a bill to be tranfmitted to England, to be drawn up into an act, to prevent the further growth of popery, and having in vain endeavoured to put a ftop to it there; at its remittance back again to Ireland, prefented to the house of commons a petition in the names of Nicholas Lord Viscount Kingsland,, Colonel J. Brown, Colonel Burk, Colonel Robert Nugent, Major Pat. Allen, Captain Arthur French, and other Roman catholics of Ireland, praying to be heard by their counsel against the paffing the faid bill, then under confideration of the said houfe; and to have a copy of the bill, and a reasonable time to speak to it before it paffed. Which petition being referred to the committee of the whole houfe, to whom the confideration of the faid bill was referred, it was ordered, that the petitioners fhould have a copy of the faid bill, and be heard by their counfel, before the faid committee.

And in pursuance of that order, Sir Theobald Butler, Counfellor Malone, and Sir Stephen Rice, (the two first in their gowns as counsel for the petitioners in general, and the last without a gown, only as a petitioner in his private capacity) together with many others, upon Tuesday the 22d of February, 1703, appeared at the bar of the faid house of commons, where Sir Theobald Butler first moved and acquainted the house, that, "by the permiffion of that houfe, he was come thither in behalf of himself, and the rest of the Roman catholics of Ireland comprifed in the Articles of Limerick and Galway, to offer fome reafons, which he and the rest of the petitioners, judged very material against paffing the bill, intituled, An act to prevent the further growth of popery; that by leave of the house, he had taken a copy of the faid bill (which he had there in his hand), and with fubmiffion, looked upon it to tend to the deftroying of the faid articles, granted upon the most valuable confiderations of furrendering the faid garrisons,

at

at a time when they had the fword in their hands; and for any thing that then appeared to the contrary, might have been in a condition to hold out much longer, and when it was in their power to demand, and make for themselves fuch terms, as might be for their then future liberty, fafety and fecurity: and that too, when the allowing fuch terms, were highly advantageous to the government, to which they fubmitted; as well for uniting the people, that were then divided, quieting and fettling the distractions and diforders of this then miferable kingdom, as for the other advantages the government would thereby reap in its own affairs, both at home and abroad; when its enemies were fo powerful both by fea and land, as to give doubt or interruption, to its peace and settlement.

"That by fuch their power, those of Limerick did for themfelves, and others therein comprized, obtain, and make such articles, as by which, all the Irish inhabitants in the city and county of Limerick, and in the counties of Clare, Kerry, Cork, Sligo and Mayo, had full and free pardon of and for all attainders, outlawries, treafons, mifprifion of treafons, felonies, trefpaffes and other crimes whatever, which at any time from the beginning of king James the Second, to the 3d of October 1691, had been acted, committed, or done by them, or any of them; and by which they and their heirs were to be forthwith put in poffeffion of, and for ever poffefs, and enjoy all and every of their freeholds and inheritance; and all their rights, titles, and interefts, privileges and immunities, which they and every of them held and enjoyed, and by the laws in force were entituled unto, in the reign of king Charles II. or at any time fince, by the laws and ftatutes that were in force in that reign, &c. And thereupon read fo much of the fecond article of Limerick, as tended to that purpose.

"That in the reign of king Charles the Second, the petitioners, and all that were entituled to the benefit of those articles, were in fuch full and free poffeffion of their estates; and had the fame power to fell, or otherwise to dispose, or convey them, or any other thing they enjoyed; and were as rightfully intituled to all the privileges, immunities and other advantages whatever, according to the laws then in force, as any other fubjects whatsoever, and which, therefore, without the highest injuftice, could not be taken from them, unless they had forfeited them themselves.

"That if they had made any fuch forfeiture, it was either before or after the making the faid articles: if before, they had a full and free pardon for that by the faid articles, &c. and therefore are not accountable by any law now in force for thè fame; and for that reafon not now to be charged with it, and fince they cannot be charged with any general forfeiture of thofe articles fince, they at that fame time remained as abfolutely intituled

Cc 2

intituled to all the privileges, advantages and benefits of the laws both already made, and hereafter to be made, as any other of her majesty's fubjects whatsoever.

"That among all focieties there were fome ill people, but that by the 10th article of Limerick the whole community is not to be charged with, nor forfeit by, the crimes of particular perfons.

"That there were already wholesome laws in force fufficient, and if not, such as were wanting might be made, to punish every offender according to the nature of the crime and in the name of God let the guilty fuffer for their own faults; but the innocent ought not to fuffer for the guilty, nor the whole for any particular. That furely they would not now (they had tamely got the fword out of their hands) rob them of what was then in their power to have kept; for that would be unjust, and not according to that golden rule, to do as they would be done by, was the cafe reverfed, and the contrary fide their

own.

"That the faid articles were firft granted them by the general of the English army, upon the most important confideration of getting the city of Limerick into his hands (when it was in a condition to have held out, till it might have been relieved by the fuccours then coming to it from France) and for preventing the further effufion of blood, and the other ill confequences which (by reafon of the then divifions and disorders) the nation then laboured under; and for reducing those in arms against the English government to its obedience.

That the faid articles were figned and perfected by the faid general, and the then lords juftices of this kingdom; and afterwards ratified by their late majesties, for themselves, their heirs and fucceffors; and have been fince confirmed by an act of parliament in this kingdom, viz. ftat. 9. Guil. 3. fef. 4. chap. 27. (which he there produced and pleaded), and faid could not be avoided without breaking the faid articles, and the public faith thereby plighted to all thofe comprised under the faid articles, in the most folemn and engaging manner, 'tis poffible for any people to lay themselves under; and than which nothing could be more facred and binding. That therefore to violate, or break thofe articles, would on the contrary be the greatest injuftice poffible for any one people of the whole world to inflict upon another, and which is contrary to both the laws of God and man.

"That pursuant to thefe articles, all those Irish then in arms against the government, did fubmit thereunto, and surrendered the faid city of Limerick, and all other garrisons then remaining in their poffeffion; and did take fuch oaths of fidelity to the king and queen, &c. as by the faid articles they were obliged to, and were put into poffeffion of their eftates, &c.

"That

"That fuch their fubmiffion was upon fuch terms, as ought now, and at all times to be made good to them: but that if the bill then before the house, intituled, An act to prevent the further growth of popery, fhould pass into a law (which, faid he, God for forbid) it would be not only a violation of those articles, but also a manifeft breach of the public faith, of which the English had always been moft tender in many instances, fome of which he there quoted; and that, in particular, in the preamble of the act before mentioned, made for confirmation of these articles, wherein there is a particular regard, and respect had to the public faith.

"That fince the faid articles were thus under the most solemn ties, and for fuch valuable confiderations granted the petitioners, by nothing less than the general of the army, the lords juftices of the kingdom, the king, queen, and parliament, the public faith of the nation was therein concerned, obliged, bound, and engaged, as fully and firmly, as was poffible for one people to pledge faith to another; that therefore this parliament could not pass such a bill, as that intituled, An act to prevent the further growth of popery, then before the house, into a law, without infringing thofe articles, and a manifest breach of the public faith; of which he hoped that house, would be no lefs regardful, and tender, than their predeceffors, who made the act for confirming those articles had been.

"That the cafe of the Gibeonites, 2 Sam. xxi. 1. was a fearful example of breaking of public faith, which above 100 years after brought nothing lefs, than a three years famine upon the land, and stayed not till the lives of all Saul's family atoned

for it.

"That even among the heathens, and most barbarous of nations, all the world over, the public faith had always been held most facred and binding, that furely it would find no less a regard in that auguft affembly.

"That if he proved that the paffing that act, was fuch a manifeft breach of thofe articles, and confequently of the public faith, he hoped that honourable house would be very tender how they paffed the faid bill before them into a law; to the apparent prejudice of the petitioners, and the hazard of bringing upon themselves and pofterity, fuch evils, reproach and infamy, as the doing the like had brought upon other nations and people,

"Now, that the paffing fuch a bill as that then before the house to prevent the further growth of popery, will be a breach of thofe articles, and confequently of the public faith, I prove (faid he) by the following argument.

"The argument then is (faid he) whatever shall be enacted to the prejudice or deftroying of any obligation, covenant or contract, in the most folemn manner, and for the most valuable confideration entered into, is a manifeft violation and de

ftruction

ftruction of every fuch obligation, covenant and contract: but the paffing that bill into a law, will evidently and absolutely deftroy the articles of Limerick and Galway, to all intents and purposes, and therefore the paffing that bill into a law, will be fuch a breach of thofe articles; and confequently of the public faith, plighted for performing those articles; which remained to be proved.

"The major is proved (faid he) for that whatever destroys or violates any contract or obligation, upon the most valuable confiderations, most folemnly made and entered into; destroys and violates the end of every such contract or obligation: but the end and defign of those articles was, that all those therein comprized, and every of their heirs, fhould hold, poffefs, and enjoy all and every of their eftates of freehold and inheritance, and all the rights, titles, and intereft privileges and immuni ties, which they and every of them held, enjoyed, or were rightfully entituled to, in the reign of king Charles the Second; or at any time fince, by the laws and ftatutes that were in force in the faid reign in this realm: but that the design of this bill, was to take away every fuch right, title, intereft, &c. from every father being a papist, and to make the popifh father, who, by the articles and laws aforefaid, had an undoubted right, either to fell or otherwife at pleasure to dispose of his eftate, at any time of his life, as he thought fit; only tenant for life: and confequently disabled from felling, or otherwise difpofing thereof, after his fon or other heir fhould become protestant; though otherwife never fo difobedient, profligate, or extravagant: Ergo, this act tends to the deftroying the end for which thofe articles were made, and confequently the breaking of the public faith, plighted for their performance.

"The minor is proved by the 3d, 4th, 5th, 6th, 7th, 8th, 9th, 15th, 16th, and 17th, claufes of the faid bill, all which (faid he) I fhall confider and speak to, in the order as they are placed in the bill.

"By the first of these clauses (which is the third of the bill), I that am the popish father, without committing any crime against the ftate, or the laws of the land, (by which only I ought to be governed) or any other fault; but meerly for being of the religion of my fore-fathers, and that which, till of late years, was the ancient religion of thefe kingdoms, contrary to the express words of the fecond article of Limerick, and the public faith, plighted as aforefaid for their performance; am deprived of my inheritance, freehold, &c. and of all other advantages which by thofe articles, and the laws of the land, I am entituled to enjoy, equally with every other of my fellow fubjects, whether proteftant or popifh. And though fuch my eftate be even the purchase of my own hard labour and induftry: yet I fhall not (though my occafions be never fo preffing), have liberty (after

my