THE THE CASE OF THE Forfeitures IN IRELAND Fairly Stated c. THE CASE OF THE Forfeitures IN IRELAND Fairly Stated WITH The Reasons that induced the Protestants there to Purchase them LONDON Printed in the Year 1700. THE CASE OF THE Forfeitures IN IRELAND Fairly Stated c. SInce the Expedition of King Henry II. into Ireland now about 530 years the Lands of that Kingdom have by reason of the many Rebellions frequently chang'd their Proprietors insomuch that there are very few Acres in that Country which have not more than once been vested in the Crown by Forfeitures All the Lands forfeited in that Kingdom since that time except what in the Rebellion of 1641 was by Act of Parliament secur'd to the Adventurers for the Money they then rais'd in the necessity of Affairs here have all along been bestow'd by the Kings of England according to their own pleasure His present Majesty following the Example of those who went before him has been pleas'd to grant Lands to several great Persons and others whom he esteem'd deserving of his Favour on which all the Chief Judges of that Kingdom other Judges and Great Men in the Law and others encourag'd by their Example have as Purchasers laid out considerable sums of Money This they did because they knew that a Grant under the Great Seal is a good and legal Title and That by which the English there have all along held their Estate In regard of the Bill that is offer'd to resume those Grants 't is humbly represented to the Lords and Commons in Parliament that they in making Laws are in their Great Goodness and Wisdom always very tender of every Man 's Right That the Grantees and those who purchas'd under them have a just and legal right to the Lands granted by his Majesty that barring an Irish Act of Parliament which in this case is not consider'd as appears by the E. of Athlone's Grant the Duke of Ormond's and all the Estates granted since 41 and in former times may as well be resum'd as those given by his Majesty since we are told that no time occurs to the King and Parliament 'T is said that Grants have frequently been ressum'd by Parliaments therefore they have a just right to do it And if so neither the Grantee nor Purchaser has reason to complain since the former is depriv'd of that which Parliaments have frequently dispos'd of and the later suffers as one who purchas'd under an uncertain and bad Title and forgot what the Law says Caveat Emptor If this were so it might perhaps be decent not to urge it in the present Case considering the infinite Obligations His Majesty has laid upon us and how reasonable it is he should be allowed to reward those whom he knew deserved great marks of his bounty and Favour But laying these considerations aside I will allow that if indeed the nature of our constitution be such that a Person who holds a Forfeited Estate by the Kings Grant and he that purchases under that Grant has but an uncertain and bad Title and that it appears to be so by the frequent resuming of Estates then there is some weight in the Objection But if the Parliament has never declar'd That the King has no right to dispose of such Forfeitures to the Crown if the Judges the Interpreters of our Laws have always agreed That such Titles are good in Law if they are the Titles by which the Lands of that and this Kingdom have always been held I humbly conceive the Case is otherwise A Late Author has taken a great deal of pains to shew that Parliaments in former times have made such Resumptions He says which he could not avoid owning That Our constitution seems to have been that the Kings always might make Grants and that those Grants if pass'd according to the forms of prescribed by Law were valid and pleadable not only against him but his Successors If the Kings may make Grants and they are valid Does not an Act of Resumption deprive a man of that which he has a Just and Legal right to And will it not be too great a hardship on the King as well as the Persons concern'd in his Grants to force him to take away what he has granted and so to injure his Subjects whom he has always tenderly protected and with the hazard of his blood preserved That Author is of another opinion for he tells us ' T is likewise manifest that the Legislative Power has had an uncontested right to look into those Grants and to make them void whenever they are thought EXORBITANT If ' t is only Exorbitant Grants that are to be look'd into and made void Will not a general Resumption which voids all Grants without examining what the Merits or Rewards of Persons are be still a Hardship What an Exorbitant Grant is I don't understand nor has the Legislative Power ever determin'd the exact boundaries between a Grant that is and is not Exorbitant Because this Author would have His Majesties Grants voided 't is plain he thinks them Exorbitant But if many former Kings have made Grants vastly greater which never were look'd into or made void If many of His Majesty's greatest Grants put together will not equal the value of one Grant made by the Parliament since His Majesty's Reign to one Person and a Foreigner too for which he is not the more in our Author's esteem can they with any decency be reckoned amongst those Exorbitant Grants which ought to be resum'd 'T is hard to say what the Legislative Power can't do Id potest quod jure potest So that whosoever affirms they have power to resume the King's Grants if they please I believe will not deny that they may likewise Repeal former Acts of Parliament and consequently dissolve the Right that Men enjoy by them He has indeed in his List of resumptions which are nothing to the present purpose instanced one such as it is whereby Grants were made void altho' confirmed by Parliament This Author when he says That they have had such a Power must mean only that they have exercised such a Power and frequently resumed Estates which being vested in the Crown by Forfeiture have been granted away by the Kings of this Realm His Impartial and Intelligent Reader I believe will own That he has demonstrated nothing of this He has he says taken a vast deal of pains but to what purpose Has he in his laborious search discovered any Act that voided the vast Grants made after the Rebellion in 1641 or that resum'd the escheated Counties and other Lands disposed of by King James the First or that broke the many and great Grants of Forfeitures made by Queen Elizabeth Does he know of any Resumption of the great multitude of Estates given by King Henry the VIIIth No though they were acquired by Act of Parliament and not by the King in War yet the King dispos'd of them as he pleas'd and the Grantees and
had done so many Heroick Actions and had so valiantly fought for the Honour of his Country had but 100 l. per. ann Pension for his Life and some Lands in Ireland then of no value the said Earl having ' had no other recompence for his long services which moderation of his is a reproach to the avarice of the present times I must with this Gentleman own that the Heroick Actions of that Noble Earl whose name carries merit in it deserved the greatest recompence that could be given But considering the Poverty of those times and the great value of Money the Recompence tho' not equal to the Merits of the Man yet was greater than he represents it He adds that he had besides some Lands in Ireland then of no value the words of the Act are Till then yeilding nothing being in the hands of Rebels I can assure this Gentleman that the Lands of that noble Lord of which afterwards his Family was deprived by the Statute of Absentees made in Ireland were more than all the Irish ferfeitures disposed of by his present Majesty put together This considered he might with more Justice have said That this shews the moderation of his Grace the present Duke of Shrewsbury who notwithstanding the great Services of his Ancestors in Ireland notwithstanding his own great Merit has not beg'd any Grant of the King in that Kingdom where he had so good a claim But since in comparing Grants made formerly with those of the present time he has mentioned the favours conferred on a Noble Lord of that Great and Honourable Family to make His Majesty's Grants look the greater and more exorbitant I will tell him what I find in my Lord Coke's 12th Report E. of Shrewsbury's Case that King Henry VIII did grant to George E. of Shrewsbury and his Heirs the Abbey of Rufford with the Lands thereto belonging in the County of Nottingham the Lordship of Rotheram in the County of York the Abbeys of Chesterfield Shirbrook and Gossadel in the County of Derby with divers other Lands and Tenements of great value This I mention here being led into it by the Author to shew that there were great Grants in former times Of which more hereafter What this Act of Henry VI. was what force and operation it had whether that which this Gentleman would suggest the Reader may guess from what follows Had all the Crown Lands dispos'd of by that King except those that were secured to the Grantees by the several reservations made by the Commons and the King himself by that resuming Act been re-invested in the Crown there could have been no place left for the complaints and several resuming Acts or Petitions that follow'd By them the nature and validity of this Act as well as their own force and operation is discover'd The very next year 29 th Hen. 6. Another appears of the same nature with this In it there are great complaints made by the Commons of their Poverty of many unportable charges laid upon them and of there being no benefit of the former Resumption how so I wonder if 't was a positive resuming Act Therefore in the most lowly wise to us possible we say the Commons beseechen you most noblay graciously and tenderly to consider the great benefits that should grow unto you and to this your Roialme by the means of this resumption The King in answer to the Petition tells them that by the advice of his Lords Spiritual and Temporal his exellency is agreed to resume c. But 't is with Provisions and Exceptions for all that he pleases as appears by the assent Four years after this 33. Hen. 6. another Act of Resumption passes which shews what kind of Acts these were The Commons set forth That not withstanding their large Grants of Goods he was indebted in outragious Sums that the Revenue of his Land did not suffice to sustain his houshold whereof the People say they lament and sorrow piteously What became then of the Lands vested in the Crown by the former Resumptions The King assents to this Petition as before but with a Reserve for his Prerogative and savings for what he pleased This shews the meaning of those Acts They were only Prayers and Petitions to the King to pity them and the low Estate of his Crown and to resume as much of the Revenues he had given away as was sufficient to support his Family What could there be more in such a Resuming Act wherein the King in the Royal Assent inserts a saving for his Prerogative This I think is plainly manifest by the effect and operation of these Acts. These were the Acts Resumption made by Henry VI. Some may object says this Author that Henry VI. under whose Reign these three Resumptions were made was a weak Prince unfortunate abroad ingaged in Factions at home and kept under by the house of York I would ask that Gentleman what need there is of such an objection for what effect had all these Petitions what was this weak King forced to do Did not he assert his Prerogative Were there any resumptions by what followed 't will appear whether there were or no. This Gentleman was not aware that the insinuating this Objection makes greatly against him For what opinion had the People of Resumptions at that time or of their right of claiming them when in the Reign of so weak a Prince their Acts as they are called avail'd no more About five years after 1 Edw. IV. as soon as that King came to the Crown his Subjects desir'd a Resumption By this all Grants were to be resum'd that were made since the latter end of Rich. II. which was above sixty years The reasons will be clear to any one that knows the History of England This Gentleman does well to name this among the other Precedents to let us know the moderation of those times and to shew that no Prescription will secure Men against a resuming Act. This resumption he says was too large to have any good effect Why so The more Lands it seiz'd the better the effect But it seems it did no execution For Three years after Anno 3 and 4 Edw. IV. there pass'd another Act. This Act as well as the former pass'd with such exceptions as it should please the King to make A prodigious number of these savings it seems there were in so much that our Author says they seem intirely to defeat the design and intention of the Act. Therefore Three or four years after 7 Edw. IV. we are told of another this the King desires for he tells them he is resolv'd to live of his own and not be a charge to his Subjects This passes with what Provisions and Exceptions the King is pleas'd to make but as ill luck would have it the Exceptions our Author tells us frustrated the good intentions of the Commons Thus according to him each of these three Acts was a Felo de se Why then are they produc'd 'T is
Purchasers have not as yet complained of the hardship of a Resuming Act. Have then the Grants of all the Princes since the Reformation created good Titles in Ireland and passed current and free from all Resumptions Yes 't is certain they have and that Author is challenged to shew the contrary This me-thinks shews a custom ancient enough to secure the Grants of His present Majesty to whom we owe more than to all the Kings before him 'T will be ask'd whether there were no such Resumptions before the Reformation if there were why considering the streights we are in shou'd not the same course be taken now to ease the Nation of Taxes In order to give this question a clear and satisfactory answer I shall observe that the Grants made by our Princes have been of two sorts First of Lands that have fallen to the Crown by Rebellion or Conquest Secondly of Lands or Hereditaments that were of the Demesnes or ancient Revenues of the Crown All Estates of the First sort are undoubtedly by our Laws in the gift of the King our constitution does not only allow him to dispose of these but supposes he will do it 'T is so far from being a Crime in any of his Ministers to countenance the Kings doing this that on the contrary should they advise him not to make Grants but to keep his Acquisitions in his own hands they ought to be censur'd for it Because it might prove a thing of ill consequence to our Country for if all the Revenues that fall to the Crown were kept there the King would in time become absolute Possessor and Lord of all and his People must be his Slaves As it is certain then that the King may and for a very good reason ought by our constitution to Grant away such Lands as these so it is as certain that not only since the Reformation but Norman Conquest likewise an Act never has passed to resume Grants of this kind As to the other sort of Grants I mean of the Lands or Hereditaments that were of the Demesnes or Ancient Revenue of the Crown it must be own'd that they in former times have made some noise in this Kingdom All that a late Author has said in a discourse too long for the Argument relates only to such sort of resumptions Therefore his precedents will not touch the Irish Grants though among other things his Book was plainly Calculated for them But since 't is possible many at this time may be induc'd to entertain too harsh and wrong sentiments concerning Grants of this kind since the prejudices of these Men if they should reckon that the Case of the one differs not from the other will reach to forfeitures and suggest to them that a resumption is highly reasonable I will give the plainest and shortest account I can of thosse resumptions I mean of Grants of the Crown Revenues and that taken from what the Author himself says and leave it to all True English Men who love this Government to Judge whether all his noise and clamour and ill-tim'd reflections might not in justice as well as good breeding be spared He tells us pag. 302 that anciently it seemed a fundamental that the Crown-Lands were not alienable To whom did it seem so anciently Not to the Kings themselves for they all along made Grants of the Revenues of the Crown and that so commonly that this Author will be hardly able to name two since the Reign of William I. that have not made Grants of some of the Revenues of the Crown and thus broken in to this fundamental Nor to the Parliament for they never have condemned such Grants never made an Act of Parliament to prohibit them This appears from the Act made 27. Hen. 8 c.11 to secure the Fees belonging to the Clerk of the signet or if the Author will have it so vid. pag. 298 To inforce by a positive Law the ancient steps in passing grants from the Crown Tho' in this he is mistaken in the Judgment of Lawyers mention'd by himself p. 30 who say that these methods are directive not coercive or as Hobart says Hob. Rep. Colt and Glover p. 146 That these kind of Statutes were made to put things in ordinary form and to ease the Sovereign of Labour but not to deprive him of Power But however that be this is certain that to make such Grants as these is what is permitted our Kings even by the Statute Law and the Law never prescribes a rule for doing that which it allows not to be done But does not this Author tell us that 11. Hen. 4. 'T was plainly and directly enacted That all manner of Hereditaments which from thence forward should fall into the Crown should not be alienable but remain to the King This he says is positive unrepeal'd as we know and still as much in force as Magna Charta pag. 303. Here this Gentleman has been guilty of great inadvertency in citing this as a Positive Act and strong as Magna Charta for prohibiting alienations of the Revenues of the Crown I hope he only forgot how he mentioned this Act in the foregoing part of this Book p. 145. I must desire the Reader to turn to the place he quotes the very same year of Henry the IV th and the same Parl. Roll. There he tells us The Commons pray the King That for ever hereafter no Grant might be made of any Hereditaments or other profits of the Crown except Offices and Bailiwicks till the King shall be quite out of Debt and unless there be remaining in his Coffers sufficient for the Provision of his Family The Act as 't is here deliver'd is differing from the Magna Charta the positive Law he mention'd before And yet here he has given the Original a very dextrous turn for the French in the Act is En Temps ensuivants which is no more than for the future but he has render'd it for ever hereafter and so would infer that That which 't is plain was no more than a Petition to the King not to Grant away the Hereditaments of the Crown till he had sufficient for the support of his Family was a positive Law which was to stand for ever like Magna Charta to Guard the Revenues of the Crown and restrain the King from making Grants This Gentleman is mistaken the Wisdom of this Nation never did and I 'm sure never will make such an everlarsting Law as he mentions They foresaw what the Power of the King in time would grow to if there should never be any alienation and that this fundamental would shake the foundation of the Government They know better things My Lord Coke tells us 2 d. Institut pag. 496 497 That the King's Prerogative is part of the Law of England and that this is shewn in his Letters Patents for Lands Tenements and other things Without this Prerogative I can't see how he can Govern and discharge that great duty incumbent upon him What