Ireland under the Stuarts and During the Interregnum, Vol. 3 (of 3), 1660-1690

by Richard Bagwell

Dissatisfaction of Clarendon.

The Act of Explanation was not intended to alter anything in the Act of Settlement, but only to clear up doubts and supply omissions. Ormonde repeatedly declared that almost any permanent arrangement would be better than none, Ireland being a prey to uncertainty in the meantime. There was not land enough to satisfy everybody and it was necessary that each party should sacrifice something. In Ireland the English party had agreed to surrender one-sixth of what the Act of Settlement gave them, but the Irish agents in London thought this too little, and it was then arranged that 1,800,000 Irish acres of profitable land should be assigned to the English and the rest to the Irish. The latter being still dissatisfied, the English party consented to have the one-sixth raised to one-third, and upon that basis the Bill was settled by Finch with the help of a committee consisting of the Duke of Ormonde and of all the Irish Privy Councillors then in London, including Orrery and Anglesey, with the Commissioners of Claims excepting Smith, who seems not to have left Ireland. Clarendon wished the Bill to be strictly explanatory and opposed all provisos in favour of particular persons, as he had done in the case of the Act of Settlement, and all material alterations in the draft sent from Ireland. ‘To what purpose,’ he said, ‘is Poynings’ Act that all Acts shall be transmitted from thence hither if we under pretence of mending an Act shall graft new matter into it that hath not the least relation to the matter prepared there.’ Both he and Ormonde were opposed to such provisos. But he was overruled, for Charles’s good nature or indolence had induced him to give many promises, which had to be redeemed. ‘The first thing a King should learn,’ said Temple after some experience of the reigning monarch’s ways, ‘is to say No, so resolutely as never to be asked twice, nor once importunately.’ That lesson was never learned by Charles II., and the wrangle about the interests of particular persons continued for nearly a year after Ormonde’s arrival in England.[42]

Provisions of the Bill agreed to.

The Act of Explanation contains 234 clauses and occupies 136 folio pages. Forfeited lands were vested in the Crown as before, but decisions actually given under the former Act were confirmed. There was, however, no attempt to provide for further decrees of innocence, the power to grant which had expired on August 21, 1663. There had been over 800 decrees, but Plunket and his friends alleged that 8000 cases had been unheard for want of time, and Finch allowed that there were about 5000 such claims, including several that had been entered twice. By the Act of Settlement officers and soldiers were protected as to lands in their possession on May 7, 1659, but some doubts had arisen as to whether this did not exclude those who had left the army between that date and November 30, 1660, and it was now decreed that there was no such exclusion. It was laid down that Protestants should be first provided for, ‘of whom his Majesty ever had and still hath greatest care and consideration in the settlement of this his kingdom,’ and all Adventurers, officers, and soldiers were confirmed as to two-thirds of what they had held at the former date. Protestant purchasers of land from the transplanted in Connaught and Clare were confirmed, but Adventurers who claimed under the doubling ordinances of the Long Parliament had to be contented with the equivalent of what they had actually advanced. Of the thirty-eight persons specially named as restorable in the Act of Settlement, seventeen had received nothing, the stock of land available for reprisals having been exhausted. To these were now joined sixteen who had been mentioned but less particularly in the former Act, twenty-one fresh names were added, and the whole fifty-four were declared entitled to their principal houses and 2000 acres of land adjoining them. Very many of the provisos to which Clarendon objected were nevertheless included. The administration of the new Act and of the ‘matters of the former Act which remain in force’ was entrusted to five members of the former commission, Chief Justice Smith, Sir Edward Dering, Sir Alan Brodrick, Sir Winston Churchill, and Colonel Edward Cooke. Rainsford, now a judge in England, and Beverley, a master of requests, were very obnoxious to the English party in Ireland and were not reappointed, ostensibly by reason of their official duties. It was not till May 1665 that the Act was ready for transmission to Ireland, where it might be passed or rejected but not altered.[43]

Ormonde brings the Bill to Ireland.

The Court was at Salisbury in August 1665, and there the Great Seal was affixed to the Bill of Explanation. Business was at this time much interrupted by the plague, and some of the discussion had taken place at Sion House and Hampton Court. Ormonde set out about the middle of the month, stayed some days at Bristol, where as Lord Lieutenant of Somersetshire he was occupied in settling local disputes, and on September 2, having crossed the Severn at Gloucester and the Wye at Hereford, sailed from Milford Haven in the Dartmouth frigate, and after only eight hours at sea arrived at Duncannon next morning, where he found the Duchess and his two sons with their wives. The distinguished party were ill lodged and fed at the fort, whence they went to Waterford, and on the third day to Kilkenny, where the Lord Lieutenant stayed for six weeks. On October 17 he entered Dublin amid great rejoicings, the citizens marching in procession. The garrison were reinforced by a troop of mounted volunteers in handsome grey uniforms with scarlet and silver facings, mythological figures appeared at various points, and claret ran freely from a fountain in the Corn Market. Every available coach was in attendance, and when these vehicles were at last got out of the way fireworks were discharged in the streets.[44]

The Bill in the Irish Parliament.

After the adjournment of the Irish Parliament on May 25, 1663, the recess was prolonged by almost innumerable prorogations until October 26, 1665, when the Houses were at last allowed to meet. In order to observe their temper Ormonde withheld the Bill of Explanation for some days, during which he ordered it to be printed, and the Commons at once took up the Castle plot which had been exposed after their last sitting. A committee was appointed who had the documentary evidence before them, and Robert Shapcote, the member of the House chiefly implicated, was twice heard in his own defence. The result was that he and six other members were expelled and declared incapable of sitting in any Parliament, their further prosecution being left to the ordinary course of law. The conspirators’ declaration written by Blood was ordered, if the Lord Lieutenant should think fit, to be burnt by the hangman in the most public part of Dublin. The Bill of Explanation was read a first time on November 11 and a second time ten days later. Petitions were then presented from John Fitzgerald, Knight of Kerry, a Roman Catholic, and Captain John Magill of Down, a Protestant, whose estates were declared forfeited to the Crown by special words in the Bill. Counsel were heard at the Bar and the documentary evidence was referred to a select committee, who reported that the Knight was ‘a very well deserving innocent person’ and the captain ‘a very well deserving innocent Protestant.’ The House then resolved that they would entertain these cases after the Bill had been read a third time. Another committee was named to criticise the Bill, the chief doubt being as to the sufficiency of the vesting clause. Those who thought themselves aggrieved by the decisions under the first Act were determined to leave nothing to chance. The third reading was taken on November 29, and the House then proceeded to formulate its objections in the shape of a petition to the Lord Lieutenant.[45]

Two hard cases.

The most important question raised by the Commons’ petition concerned the interpretation of words in the first clause, which vested in the King all lands ‘seized or sequestered by reason of the late horrid rebellion which began on October 23, 1641.’ Some lawyers held that it was necessary to prove in each case separately that the owner of land on that fatal day had been actually engaged in rebellion, a doctrine which shook the title of all the men in possession. There was also some doubt whether the new proprietors would hold their land in fee or as tenants for life, but the Irish judges had decided in the former sense. The Lord Lieutenant, first orally and then in writing, answered, promising that doubts should be decided in a manner agreeable to the parliamentary majority and to the intention of those who had passed the Bill, which could only be amended by a subsidiary Act. Any attempt at fresh legislation was dangerous where so many discontented persons were involved, and the rock was avoided by asking the opinion of the English judges on the first point. Ten of them, including Sir Orlando Bridgeman and Rainsford, the late commissioner of claims, held that the disposal of land within the meaning of the Act would of itself be good evidence that it was vested in the King, and that the burden of proof lay upon the party whose former property had been seized or sequestered. As to Fitzgerald and Magill, whose lands had never been seized but who were treated as if they had been, the House of Commons were of opinion that they were innocent—nothing having been proved or even stated against them. Counsel for the Knight of Kerry said their client was ‘of English extraction, never attainted, a matter rare in an Irish pedigree, but constantly loyal.’ In these hard cases Ormonde promised to do his best, and this was something more than a common official answer since clause 159 provided that doubtful points might be decided by an order in council having the force of law.’[46]