Chapter XXX.

An Act for the attainder of various rebels, and for preserving the interests of loyal subjects.

The authenticity of this Act as printed by Archbishop King has been questioned, especially by William Todd Jones in 1793. But we believe its authenticity cannot be successfully contested. Lesley, in his “Reply” to King, makes no attempt to disprove its existence, but, on the contrary, alludes to it and applauds James for having opposed it. King, however, asserts that the Act was kept a secret; and that the persons attainted, or their friends, could not obtain a copy of it. For this Jones answers:—

“But the fact (as stated by King) is impossible: conceive the absurdity; an act of parliament is smuggled, where? through two houses of lords and commons; of whom were they composed? of catholics crowded with protestants; though Leland, upon the authority of King, says there were but fourteen real protestants. Well, what did these two houses do? They voted and passed a secret act of attainder of 2,500 protestants, which was to lie-by privately in petto, to be brought forward at a proper time; unknown, unheard of, by all the protestant part of the kingdom, till peace was restored: and that, according to King, was to be deemed the proper time for a renewal of war and devastation, by its publication and execution, and the secret was to be closely kept from nearly 3,000 persons by the whole house of commons; by fifty-six peers, including primate Boyle, Barry lord Barrymore, Angier lord Longford, Forbes, the incomparable lord Granard (of whom more in my next continuation), Parsons lord Ross, Dopping bp. of Meath, Otway bp. of Ossory, Wetenhal bishop of Cork, Digby bishop of Limerick, Bermingham lord Athenry, St. Lawrence lord Howth, Mallon lord Glenmallon, Hamilton lord Strabane, all protestants and many of them presbyterians, or rather puritans. It was kept close from 3,000 persons by all the privy council; by all the clerks of parliament who engross and tack together bills, it was to be kept an entire secret from all the protestants without doors, by all the protestants within the gates of parliament; and this probable, wise politic expectation was entertained by those Catholic peers and representatives, who through the cloud of war, passion, and uncertainty, could exercise the more than human moderation in solemnly prescribing the narrow bounds of thirty-eight years to all enquirers after titles under the revived court of claims: by those peers and representatives, whose patriotism, political knowledge, and comprehensive minds instructed them to declare the independence of the realm, the freedom of irish trade, and the inestimable value of a marine.—Good God, that any man, woman I mean, after such acknowledged, uncontroverted documents of the wisdom and reach of mind of that parliament, could be induced to credit and to advance the forgeries of a vicar of Bray under a persecuting protestant administration, for the wicked purpose of calumniating their memory, and defeating the efforts of their posterity for freedom….

“A secret conspiracy by way of statute against the lives of near three thousand people, appears in itself impracticable and fabulous; but that it should have been agitated in open parliament, and in the hearing of the protestant members, and yet expected to have been kept a secret from the protestants, by these protestant members, is childish and ridiculous.—In that parliament sat the venerable lord Granard, a protestant, and a constant adherent and companion of King James in Ireland—’This excellent nobleman had married a lady of presbyterian principles; was protector of the northern puritans; had humanely secreted their teachers from those severities which in England proved both odious and impolitic; and had gained them an annual pension of £500 from government.’—(Leland, vol. 3, p. 490). ‘It was this lord Granard to whom the assembled protestants of Ulster, by colonel Hamilton of Tullymore, who was sent to Dublin for the sole purpose, unanimously offered the command of their armed association, from their confidence in his protestant principles; but he told Mr. Hamilton that he had lived loyal all his life, and would not depart from it in his old age; and he was resolved that no man should write rebel upon his gravestone.’—(Lesley’s “Reply,” pp. 79, 80.) … Is it then likely that this man would be privy to a general protestant proscription, and not reveal it?—and it is probable that such a secret conspiracy by way of statute could pass the houses of commons, and lords, the privy council, and finally the king, and that it never should come to the knowledge of a peer of parliament, a favourite of the court, a resident in Dublin, and every day attendant in his place in the upper house?”

The intrinsic improbability is well proved here, and would suffice to show King’s falsehood as to the secrecy of the act; but if further proof were needed, the authorities which prove the authenticity of the act utterly disprove the secrecy alleged by King. The act is well described, in the London Gazette of July 1 to 4, 1689, and the names are given in print, in a pamphlet licensed in London, the 2nd day of the year 1690 (March 26th, old style).

Jones’s statement as to the destruction of all papers relating to that parliament having been ordered, under a penalty of £500 and incapacity from office, is certain, and we give the clause in our note; but this clause was not enacted till 1695, and, therefore, could not have affected the acts of 1689, when King wrote in 1690.

Moreover, we cannot find any trace of Richard Darling (who professedly made the “copia vera” for King) as clerk in the office of the Master of the Rolls, or in any office, in 1690. A Richard Darling was appointed secretary to the commissioners for the inspection of forfeitures, by patent dated 1st of June, 5 William III. (1693)

There certainly are grounds for supposing that some great jugglery, either as to the clauses or names in the act, was perpetrated by this well-paid and unscrupulous Williamite. The temptation to fabricate as much of the act (clauses or names) as possible was immense. The want of scruple to commit any fraud is plain upon King’s whole book. The likelihood of discovery alone would deter him. Probably every family who had a near relative in the “list” would be secured to William’s interest, and no part of King’s work could have helped more than this act to make that book what Burnet called it, “the best fitted to settle the minds” of the people of England, of any of the books published on the Revolution.

The preamble states truly the rebellion of the northerns to dethrone their legitimate king, and bring in the Prince of Orange; and that the insurgents, though offered full pardon in repeated proclamations, still continued in rebellion. It enacts that certain persons therein named, who had “notoriously joyned in the said rebellion and invasion,” or been slain in rebellion, should be attainted of high treason, and suffer its penalties, unless before the 10th of August following (i.e., at least seven weeks from the passing of the act) they came and stood their trial for treason, according to law, when, if otherwise acquitted, the Act should not harm them. The number of persons in this clause vary in the different lists from 1,270 to 1,296.

It cannot be questioned that the persons here conditionally attainted were in arms to dethrone the hereditary sovereign, supported, as he was, by a regularly elected parliament, by a large army, by foreign alliances, and by the good-will of five-sixths of the people of Ireland. King he was de jure and de facto, and they sought to dethrone him, and to put a foreign prince on the throne. If ever there were rebels, they were.

As to their creed, there is no allusion to it. Roman Catholic and Protestant persons occur through the lists with common penalties denounced against both; but neither creed is named in it.

We do not say whether those attainted were right or wrong in their rebellion: but the certainty that they were rebels according to the law, constitution, and custom of this and most other nations, justified the Irish parliament in treating them as such; and should make all who sympathise with these rebels pause ere they condemn every other party on whom law or defeat have fixed that name. Yet even this attaint is but conditional; the parties had over seven weeks to surrender and take their trial, and the king could, at any time, for over four months after, grant them a pardon both as to persons and property—a pardon which, whether we consider his necessities and policy, his habitual leniency, or the repeated attempts to win back his rebellious subjects by the offer of free pardon, we believe he would have refused to few. This, too, is certain, that it has never been even alleged that one single person suffered death under this much talked of Act. Of the constitutional character of the Act, more presently.

The second article attaints persons who had absented themselves “since or shortly before” the 5th November, 1688, unless they return before the 1st of September, that is, in about ten weeks. Staying in England certainly looked like adhesion to the invader, yet the mere difficulty of coming over during the war should surely have been considered.

The third attaint is of persons absent before (some time probably before) 5th November, 1688, unless they return before the 1st October, that is, within about fourteen weeks.

Moreover, a certain number of the persons named in this conditional attaint are excepted from it specially, by a following clause, unless the king should go to England (their usual residence) before 1st October, 1689, and that after his arrival they should neglect to signify their loyalty to the satisfaction of his Majesty.

Yet Harris and “The List” licensed 26th March, 1690, have the audacity to add these English residents and make another list of attainted persons, instead of deducting them from the list under clause 3.

With similar want of faith, both these writers make out a fifth list of attaints of the persons explicitly not attainted, but whose rents are forfeited by sec. 8, so long as they continue absentees. Thus, two out of the five lists, by adding which Harris makes up his 2,461 attaints, are not lists of attainders at all, and one of them should be rather deducted from one of the three lists of real attaints. Harris has under this exception for English residents 547 names (though printed 647 in totting), and were we to deduct these and the fifth list of 85 persons, his number of attaints would fall to 1,829; though he himself confesses that there must be some small drawback for persons attainted twice under different descriptions; and though his own totting, without removing either the fourth or fifth list, is only 2,461, yet in his text he says, “about 2,600” were attainted.

Yet Harris and “The List” pamphlet, which give the names in schedules, were more likely to misplace the lists than King, and he certainly did so in reference to the fourth list.

King’s first list, like the rest, contains1,280
His second455
And his third197
And deducting the names in list 459
King’s list falls to1,873

Yet even in this many are attainted twice over.

Harris’s second list and “The List’s” third list, each of 79 names, should be under title 4, namely, English residents, containing 59 in King. Harris’s third list of 454 names should be second, namely, Absentees since 5th November, containing in King 455, and in “The List” 480 names. Harris’s fourth list of 547, and “The List’s” fourth list of 528 names, should go to No. 3 in King, containing only 197 names, viz., of persons absent before 5th November. Without making these corrections, we would have the conditional attaints, under clauses 1, 2, and 3, amount in “The List” to 1,311, in Harris to 1,282, and in King to 1,873. But if we make these corrections, King’s will remain at 1,873, Harris’s rise to 2,218, and “The List” to 2,209.

It would, we think, puzzle La Place to calculate the probability of any particular name being authentic amid this wilderness of inaccuracies.

The fifth class of 85 persons are, as we said, not attainted at all. The 8th section declares them to be absent from nonage, infirmity, etc., and denounces no penalty against their persons, but “it being much to the weakening and impoverishing of this Realm, that any of the Rents or Profits of the Lands, Tenements, of Hereditaments thereof should be sent into or spent in any other place beyond the seas, but that the same should be kept and employed within the Realm for the better support and defence thereof,” it vests the properties of these absentees in the King, until such time as these absentees return and apply by petition to the Chancery or Exchequer for their restoration. Harder penalties for absenteeism were enacted repeatedly before, and considering the necessities of Ireland in that awful struggle, this provision seems just, mild, and proper.

By the fourth section, all the goods and properties of all the first four classes of absentees were also vested in the King till their return, acquittal, pardon or discharge. By the 5th and 6th sections, remainders and reversions to innocent persons after any estate for lives forfeited by the Act, are saved and preserved, provided (by the 7th section) claims to them are made within 60 days after the first sitting of the Court of Claims under the Act. But remainders in settlements, of which the uses could be changed, or where the lands were “plantation” lands, etc., were not saved. Whether such a Court of Claims ever sat is at least doubtful.

By the 9th and 11th sections, the rights and incumbrances of non-forfeiting persons over the forfeited estates are saved, provided (by section 12) their claims are made, as in case of remainder-men, etc.

The 10th section makes void Lord Strafford’s abominable “offices,” or confiscations of Connaught, Clare, Limerick, and Tipperary, and confirms the titles of the right owners, as if these offices had not been found.

The 13th section repeals a private act for conferring vast estates on Lord Albemarle out of the forfeitures on the Restoration.

The remaining clauses, except the last, have nothing to do with the Attainders. They are subsidiary to the Act repealing the Acts of Settlement and Explanation. They reprize ancient proprietors, who had bought or taken leases of their own estates from the owners under the Settlement Acts.

The 17th section provides for the completion of the Down or Strafford Survey, and for the reduction of excessive quit rents. In this section the phrase occurs, “their Majesties,” but this is probably a mistake in printing, though a crotchety reasoner might find in it a doubt of the authenticity of the Act.

The 21st and last section provides that any of the persons attainted “who shall return to their duty and loyalty” may be pardoned by royal warrant, provided that such pardon be issued “before the first day of November next, otherwise the pardon to be of no effect.”