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
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 £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
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 below:
Be it enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal and commons in this present Parliament assembled, and by the authority of the same, that all and every the acts, or pretended acts, and the rolls whereon the said acts or pretended acts, and every of them, are recorded or engrossed, and all proceedings of what nature or kind soever had, made, done, or passed by the said persons lately so assembled at Dublin, pretending to be or calling themselves by the name of a Parliament, and also all writs issued in order to the calling of the said pretended Parliament, and returned into any office in this kingdom, and there remaining, and all the journals of the said pretended Parliament, and other books or writings in any wise relating thereunto, or to the holding thereof, shall, by the officers or persons in whose custody the same are, be brought before the lord deputy, or other chief governour or governours of this kingdom for the time being, at such time as the lord deputy, or other chief governour or governours for the time being shall appoint, at the council chamber in Dublin, and there shall be publicly and openly cancelled and utterly destroyed: and in case any officer or person in whose hands or custody the said acts and rolls or proceedings, or any of them, do or shall remain, shall wilfully neglect or refuse to produce the same, to the intent that the same may be cancelled and destroyed, according to the true intent of this act, every such person and officer shall be, and is hereby adjudged and declared to be from thenceforth incapable of any office or employment whatsoever, and shall forfeit and pay the sum of five hundred pounds, one-half thereof to his Majesty, and the other half to such person or persons that shall sue for the same by any action of debt, bill, plaint, or information, in any court of record whatsoever.’’
— 7 Will. III. Ir. c. 1.
It is possible an outline of some such bill might have been prepared by one of those hot-headed people of whom James had too many in his councils either for his safety or for his reputation, and they were chiefly English; and that such draft of a bill having been laid before parliament, that wise, patriotic and sagacious body did ameliorate and reduce it into the statute for the revival of the court of claims; a law so unparalleled from its moderation in its review of forfeitures, by going back to Cromwell's debentures exclusively; a period of only thirty-eight years anterior to the date of their then sitting.’’
Burnet's Own times.
Such a draft of a bill, like our own protestant bill for the castration of Romish priests, which did pass here but was cushioned in England,24 or like the threat of a bill for levelling popish chapels, which I myself heard made when I sat in the house of commons, such a draft of a bill, I say, might have been found among the baggage of the Duke of Tyrconnell, of Sir Richard Nagle, or of the unfortunate sovereign himself, for Burnet acquaints us, that all Tyrconnell's papers were taken in the camp; and those of James were found in Dublin.’’
(Burnet's Own Times. , Vol. 2nd, p. 30).
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
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
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
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
King's first list, like the rest, contains 1,280 names, his second 455, and his third 197, amounting to 1,932. By deducting the 59 names in list 4, King's list falls to 1,873.25 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
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,
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.’’