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<DATE>2014-08-14</DATE>
<RESPSTMT>
<NAME>Colm MacCrossan</NAME>
<RESP>MURP</RESP>
</RESPSTMT>
<ITEM>Proofed and reviewed as part of batch Z140212.pdcc.</ITEM>
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<IDG S="marc" R="OX" ID="B18583">
<STC T="W">C922</STC>
<STC T="G">816.m.17[33]</STC>
<STC T="C">R225225</STC>
<BIBNO T="umi">99885953</BIBNO>
<VID>188572</VID>
</IDG><!-- alt.stc G816.m.17[33] --><!-- alt.stc Cr225225 -->
<TEXT LANG="eng">
<BODY>
<DIV1 TYPE="account">
<PB REF="1" MS="y">
<HEAD>The CASE OF JAMES FITZ-GERALD E&s;q; COUNSELLOR AT LAW; <HI>&V;pon a</HI> PETITION <HI>to the</HI> Commons <HI>of</HI> England <HI>in</HI> Parliament <HI>A&s;&s;embled.</HI></HEAD>
<P>AFter the Defeat of the late King <HI>James</HI> at the Battel of the <HI>Boyne</HI> in <HI>Ireland,</HI> the Petitioner (according to His pre&s;ent Maje&s;ty's Proclamation i&s;&s;ued &s;oon after) took Protection; and as he was not in any Civil, or Military Office, or Commi&s;&s;ion before, &s;o after taking Protection he lived peaceably and quietly at his own Hou&s;e at <HI>Awney,</HI> in the County of <HI>Limerick,</HI> where his E&s;tate lay.</P>
<P>Some time after, the Frontier Lines of the <HI>Engli&s;h</HI> Quarters were a&s;certained by Proclamation, and the Petitioner's Place of Abode was within them: And again, by other Proclamations, the Frontier Lines were &s;o altered, that the Petitioner's Habitation was without them, and they were to be treated as <HI>Rebels</HI> and <HI>Spies,</HI> who &s;hould by a time limited in the &s;aid Proclamation, be found without the &s;aid Lines. The Petitioner, in the mean time, not being able to remove his Goods and Family, was plundered by <HI>both Parties,</HI> by which he lo&s;t to the Value of above 4000 <HI>l.</HI> And by the Alteration of the Frontier Lines, the City of <HI>Limerick</HI> being the Place of Refuge next to him, he fled thither, and was there during the la&s;t Siege, and at the making of the Articles upon the Surrender of that Place, being an Inhabitant and Re&s;ident there.</P>
<P>Soon after, the Petitioner made Application to the Lords Ju&s;tices and Council in <HI>Ireland,</HI> praying to be adjudged the Benefit of the &s;aid Articles; and, upon his Petition, had a Publick Hearing, took the Oath of Allegiance, and duly proved him&s;elf in <HI>Limerick</HI> at the Capitulation: But it was objected again&s;t him, That having taken Protection, he was excepted by the <HI>Second Article,</HI> and &s;o excluded the Benefit of the &s;aid Articles: And upon this, the Lords Ju&s;tices and Council adjudged the Petitioner not comprized in the &s;aid Articles; by means whereof the Petitioner, to this day, &s;tands outlawed for High Trea&s;on, and his E&s;tate &s;eiz'd into the King's Hands, for no other Rea&s;on, but becau&s;e he took Protection.</P>
<P>The Petitioner mo&s;t humbly offers, and &s;ubmits to the Con&s;ideration of this Ju&s;t and Wi&s;e Hou&s;e, That the Judgment of the Council-Board at <HI>Dublin</HI> again&s;t him, in the Point of taking Protection, which &s;eems to be grounded upon the <HI>Second</HI> of the Civil Articles of <HI>Limerick,</HI> is Errroneous.</P>
<P>To this End it will be nece&s;&s;ary to con&s;ider the &s;aid Second Article (if it &s;hall be thought fit by this Honourable Hou&s;e) which, as far it concerns the pre&s;ent Ca&s;e, is in the&s;e Words following; <HI>viz.</HI></P>
<P><NOTE PLACE="marg">cond Article.</NOTE><HI>All the Inhabitants, or Re&s;idents of</HI> Limerick, <HI>or any other Garri&s;on now in the Po&s;&s;e&s;&s;ion of the</HI> Iri&s;h; <HI>and all Officers, and Soldiers now in Arms, under any Commi&s;&s;ion of King</HI> James, <HI>or tho&s;e authorized by him, to grant the &s;ame in the &s;everal Counties of</HI> Limerick, Clare, Kerry, Cork, <HI>and</HI> Mayow, <HI>and all &s;uch as are under their Protection in the &s;aid Counties, or any of them; and all the Commi&s;&s;ion'd Officers in Their Maje&s;ties Quarters, that belong to the</HI> Iri&s;h <HI>Regiments now in being that are treated with <HI>(and who are not Pri&s;oners of War, or have taken Protection)</HI> and who &s;hall return, and &s;ubmit to Their Maje&s;ties Obedience, and their, and every of their Heirs, &s;hall hold, po&s;&s;e&s;s, and enjoy all, and every their E&s;tates of Freehold and Inheritance, and all their <HI>Rights, Titles</HI> and <HI>Intere&s;ts, Privi|leges</HI> and <HI>Immunities,</HI> which they, and every, or any of them held, enjoyed, or were rightfully, and lawfully intituled to, in the Reign of King</HI> Charles II. <HI>or at any time &s;ince, by the Laws and Statutes that were in force in the &s;aid Reign of King</HI> Charles <HI>the II.</HI> &amp;c.</P>
<P>By the true meaning of this Article, All that were then in <HI>Limerick,</HI> or under the Protection of the <HI>Iri&s;h,</HI> in the &s;aid Counties (being the <HI>Iri&s;h</HI> Quarters) are included without Exception, in the fir&s;t Place; and next, the &s;aid Commi&s;&s;ion'd Officers in Their Maje&s;ties Quarters, that belong'd to the <HI>Iri&s;h</HI> Regiments then in being, that are treated with, <HI>and who are not Pri&s;oners of War, or have taken Protection,</HI> were to have the like Benefit; which Qualifications and Exceptions, affix'd and conjoin'd to the &s;aid <HI>Com|mi&s;&s;ion'd Officers in Their Maje&s;ties Quarters,</HI> only to di&s;tingui&s;h them, could not (as is humbly conceiv'd) in Rea&s;on or right Cor|&s;truction be applied to the Petitioner, or any before-mentioned, in the &s;aid Second Article, who were no ab&s;ent Officers that belong'd to any <HI>Iri&s;h</HI> Regiment that was treated with; being all of them in <HI>Limerick,</HI> and in the <HI>Iri&s;h</HI> Quarters, at the time of the Capitulation, and could not rea&s;onably be &s;uppo&s;ed to be Their Maje&s;ties Pri&s;oners, or in their Protection there, as &s;ome of the &s;aid <HI>Commi&s;&s;ion'd Officers</HI> might then well be Pri&s;oners or Protectees in Their Maje&s;ties Quarters, and as in truth many then actually were, who being Their Maje&s;ties Subjects already, and in Their Maje&s;ties Quarters, they were not de&s;ign'd to be capitulated for; which was the only occa&s;ion of adding the &s;aid Exceptions to exclude them: For it was never propos'd, during the whole Treaty of Peace, that the Petitioner for taking Protection, or any other in the <HI>Iri&s;h</HI> Quarters, &s;hould be excluded upon any Account what&s;oever <HI>(not even Spies or De&s;erters)</HI> And they being pardon'd all Trea&s;ons, Capital Crimes, and Mi&s;demeanors, by the &s;aid Articles, it cannot be well ima|gin'd, but that the taking Protection (had it been a Crime) was al&s;o pardon'd them; the contrary whereof was never heard of before the &s;aid Sentence, at the Council-Board, whereby tho&s;e Words <HI>(or have taken Protection)</HI> have been interpreted and &s;trained to a New Sen&s;e and Meaning, not thought of, or intended by the Makers of the &s;aid Articles.</P>
<P>And the Occa&s;ion of in&s;erting in the Second Article tho&s;e Words, <HI>(and who are not Pri&s;oners of War, or have taken Protection)</HI> was truly this: Upon making the Agreement, or &s;tateing the Heads of the &s;aid Articles, and enumerating the Per&s;ons to be treated for, the Lord <HI>Lucan,</HI> (<HI>alias</HI> Colonel <HI>Sarsfield</HI>) being pre&s;ent, &s;aid, That he &s;ent &s;ome Officers into the <HI>Engli&s;h</HI> Quarters about &s;ome Affairs, and that he would have them included; which was agreed to, <HI>provided they were not Pri&s;oners of War, or had not &s;ubmitted and taken Protection.</HI></P>
<P>By the Con&s;truction put by the Council of <HI>Ireland</HI> upon tho&s;e Words, the Petitioner hath been deprived of his E&s;tate, denied the Benefit of the &s;aid Articles, and nothing left to &s;upport him and his Family. Wherefore he mo&s;t humbly appeals to the COMMONS of <HI>ENGLAND</HI> for Redre&s;s again&s;t the &s;aid Erronious Proceedings, Humbly praying that it may be explain'd, and &s;etled to what Per&s;ons the &s;aid Words <HI>(or have taken Protection)</HI> mentioned in the &s;aid &s;econd Article, do properly refer: And withal mo&s;t humbly offers it to be con&s;idered, That by the Law of Nations, where any doubt ari&s;e about Words in Treaties, or Articles of Peace, they ought to be explained mo&s;t beneficially for the Party in who&s;e Favour &s;uch Articles were intended: And by the Municipal Laws of this Kingdom, the Grants of the King are to be expounded liberally, and with all imaginable Favour to the Subject, for the Honour and Dignity of the King, and for the Advantage, Freedom, and Properties of the People.</P>
<P>All which is mo&s;t humbly referr'd, and &s;ubmitted to the Great Wi&s;dom and Judgment of this Honourable and Augu&s;t A&s;&s;embly.</P>
</DIV1>
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<BACK>
<DIV1 TYPE="half title">
<PB REF="2">
<P>THE CASE OF <HI>James Fitz-Gerald,</HI> E&s;q; Coun&s;ellor at Law. <HI>March</HI> 12. 1697.</P>
</DIV1>
</BACK>
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