Confiscation in Irish history/Chapter 7

by William Francis Thomas Butler

CHAPTER VII

JACOBITES AND WILLIAMITES

The dispossessed Irish, with characteristic optimism, did not abandon their hopes of redress, nor desist from their efforts to obtain it.^[1] The persistency of Talbot and others of their agents prevailed so far that in 1670 the King ordered Sir Heneage Finch, the Solicitor General, to report on the alleged grievances done to the Irish by the Act of Explanation. The report, professing impartiality, is an excellent example of special pleading. It was easy to prove to the satisfaction of the King that he was not bound to keep the peace extorted from his father's and his own necessities in 1648. As to the unheard innocents. Finch, while admitting that there were over 4000 in this case, declared that many of them would have failed to prove their innocence, and that of those who could have done so most, if not all, had received from the usurper lands in Connaught, and so were not altogether destitute.^[2] Both these statements are no doubt to a great extent true. So, too, would seem to be his charge against Talbot and the leading men of the Irish that they had at the time of the passing of the Act made no real effort on behalf of the unheard innocents, since as nomineees it was to their interest not to diminish the limited amount of land available for reprisals; for their own restoration depended on their being enough reprisals left after restoration of innocents to allow of compensation to the Cromwellians actually in possession of their, the nominees, estates.^[3]

The King professed himself satisfied with the arguments put before him, and declared his intention of upholding the Acts of Settlement and Explanation.

In 1675 it was brought to his notice that the transplanted persons in Connaught and Clare had as yet received no legal titles to the estates assigned to them by the Cromwellian government.^[4] This was set right by the issue of letters patent to the transplanted. In all 580 grants were issued, a number which appears surprisingly small. It is possible, however, as I have already said, that new grants were not considered necessary in cases where the Cromwellians had assigned to the landowners within the various qualifications their proper proportion out of their former estates. In 1684 a "Commission of Grace" was issued, for securing defective titles, and for disposing of lands still in the King's possession. The number of grants under this Commission was 223 and some Catholic landowners at least were included among the grantees. The recipients of grants were to pay a fine which was intended for the benefit of such of the nominees and innocents transplanted to Connaught for whom as yet no compensation had been found. The money however, found its way into the pockets of the Duchess of Cleveland.^[5]

Although James had always shown himself ill disposed to the Irish, yet towards the end of the reign of Charles II. his own interest began to point towards the utility of conciliating and strengthening them as a balance to the probable hostility of the more fanatical among the colonists. Still more was he urged towards a policy of conciliation when after his accession he entered on a course destined to lead to a breach with his English subjects.

Talbot, now Earl of Tyrconnell, was first given command of the army, then in 1687 made Viceroy, the only instance from the time of Elizabeth to the present day of a Catholic holding that post.

The King was determined to uphold the Act of Settlement, and instructed Clarendon, Tyrconnell's predecessor, to oppose all efforts to have it reversed. The same policy was maintained after Talbot's appointment. Early in 1688 Nugent and Rice, two recently appointed Catholic judges, went to London to urge the repeal of the obnoxious Act. But they found no favour with either King or Council; and the insults to which they were exposed from the London mob proved how hateful was the Irish name to the mass of the English people.

But on the other hand Catholics were admitted to the army, and to the corporations; Protestant soldiers were disbanded,^[6] the charters of corporations were called in, and new ones issued giving to the Catholics a preponderance among the freemen, even in places like Derry where practically the whole population was Protestant.

In 1687 there were Catholic sheriffs, and Catholic Justices of the Peace: before that Protestant judges had been removed and replaced by Catholics, and several of that religion had been admitted to be Privy Councillors.^[7] A Protestant officer who had murdered a Catholic gentleman was tried, convicted and hanged. These measures of course caused widespread alarm amongst the colonists. Rumours of an impending massacre were spread and believed.^[8] The colonists began to draw together for safety, or to fly to England. The native element, on the other hand, became restless, acts of robbery were frequent, debts were not paid, Protestants could obtain but small redress from magistrates and sheriffs.

Finally, late in 1688, not long after the successful landing of the Dutch army in England, but before the flight of James, portions of Ulster revolted.^[9] Tyrconnell was not the man to cope with this emergency; in any case the means at his disposal were insufficient; the rebellion grew in strength; and before long the authority of James was defied over a large portion of the province.

Then in February the English proclaimed William and Mary as sovereigns. The greater portion of the Irish Protestants openly or secretly acquiesced in this; but some Protestants and all the Catholics still clung to the cause of James.

The loss of Great Britain did not involve the loss of Ireland. There the government had sufficient forces at its disposal to keep down the disaffected, and the administration continued as before to be carried on in the name of James.

It must be remembered that the theory that the de facto ruler of England becomes automatically the de jure ruler of Ireland was by no means looked on as established in the seventeenth century. Just as it was quite certain that the execution of Charles I. and the proclamation of a Republic in England could not affect the rights of Charles II. to the Crown of Scotland, so many, if not all, of the legal authorities in Ireland were of opinion that a successful revolt in England did not release the Irish subjects of James from their allegiance to him.^[10]

Even under William III., Molyneux roundly asserted that the King is King of Ireland precisely as he is of Scotland, and this at a time when the independence of Scotland was unchallenged. Tyrconnell, after some hesitation, real or pretended, definitely refused to recognise William and Mary as his sovereigns.

Accordingly when in March, 1689, James landed at Kinsale he found his authority recognised over the greater part of the island. In February Tyrconnell had disarmed the southern malcontents; and a force was sent to Ulster which soon overran the greater part of that province.

James himself after a short stay in Dublin proceeded to the north; but before his departure he had summoned a meeting of Parliament; and the body thus convoked assembled at Dublin on May 7th, 1689.

As usual our printed authorities differ widely as to the composition of this Parliament. Admittedly it was the first for half a century in which the Irish element was adequately represented. As to the colonist element Murray and Davis differ widely. According to the latter, of a possible total of 300 only 224 members sat in the House of Commons; the vacancies being caused either by the fact that some boroughs were the seat of war, and that others had had their charters cancelled by James. Bonn, following King, says that 232 members appeared and Murray follows him. Of these, according to Archbishop King, six were Protestants.

In dealing with the composition of the House of Lords Murray professes to follow King, and here it seems impossible to accept his statements. He declares that the total number who attended was 36, of whom five temporal and four spiritual peers were Protestants, and that of the Catholics 17 owed their seats either to new creations or to the reversal of attainders. King himself, however, puts the matter somewhat differently. According to him the total number of Papist peers in Ireland was forty-five, including new creations, of which he says there were four, although in reality there were five. But a little further on he says that of thirty-seven Papist lords there attended twenty-four at times, besides the new creations; and that, of these twenty-four, fifteen were under attainders by indictments and outlawries. He further says that only four or five of the Protestant lay peers attended.

But in an appendix he has a list which purports to give the actual composition of James' House of Lords. This list gives forty-eight lay peers, one Archbishop and four Bishops of the Established Church. Of the lay peers named, eight certainly, eleven possibly, were Protestants.

Now it appears certain that, including Fitton the Lord Chancellor, there were only five new creations. And it seems difficult to believe that thirty years after the Restoration there were still twelve Catholic peers as Murray says, or fifteen, if we follow King, whose attainders, often resting merely on their opposition to Cromwell, had not been reversed.^[11]

Davis, on the other hand, giving authorities for each name, declares that the total number of peers who sat was fifty-five. Among them he names the Archbishop of Armagh and five other Bishops of the Established Church, and at least nine of the temporal peers, whose names he gives, would appear to have been Protestants.^[12]

It is admitted that many of the Acts of this Parliament are distinguished by ideas of tolerance and an appreciation of the economic needs of the country far in advance of the general ideas of the age. They may be found set out in Davis' work. But two of the Acts passed have been the subject of the severest strictures from the majority of historians.

The first of these Acts repealed the Act of Settlement, and enacted that everyone was to be restored to the possession of what he or his ancestors had been lawfully in possession of on October 23rd, 1641. This enactment, therefore, did not interfere with the nine million acres which, as we have seen, had been in the possession of Protestants on that date. But it retransferred to the Catholics everything of which they had been deprived by Cromwell and by the proceedings after the Restoration dealt with in the last chapter. The loss caused to the Protestant interest therefore was equal to the amount so transferred from Catholic to Protestant hands and would therefore be at the lowest, i.e. Petty 's estimate, five million English acres. But, as has been said before, Petty 's figures cannot be relied on, and there are some grounds for believing that, of the eleven million acres held by Catholics in 1641, they had only retained or recovered something between two and a quarter and three millions. In this case at least eight million acres would now, after a lapse of nearly forty years, be retransferred to Catholic hands.

But during these forty years many of the lands in question had changed hands by bona fide sales. It was felt that compensation was due to all who had expended money on the purchase of lands which they were now to restore to the representatives of the owner in 1641. Of such purchasers many no doubt were Catholics, for under Charles II., Catholics were not impeded in purchasing landed property. All purchasers, therefore, of lands now restorable were to be compensated, and compensation was to be given in the form of a "reprise" of other lands of equal value. These lands according to clause 10 of the Act were to be provided out of lands forfeited to the Crown by those who on August 1st, 1688, or at any time since had resisted James.^[13]

There were further provisions for the compensation of deserving persons who lost their estates, and James set apart £10,000 a year out of his own private estate for further compensation for this class.^[14]

To deal with those who refused to acknowledge James an Act of Attainder of the usual type was passed, declaring their lives and property forfeit if they did not submit and stand their trial before certain specified dates.

But it is to be noted that there was a special clause excepting 85 persons who were absent from nonage, infirmity, etc. Their properties however were to be vested in the King until the absentees could return and apply by petition for restoration.

As usual it is difficult to arrive at exact figures for the persons affected by this Act. About twelve hundred and eighty persons were attainted as having actually perished in the rebellion or having notoriously joined in the said rebellion and invasion, unless before the 10th of August, 1689, they returned and stood their trial. Then about 450 persons who had absented themselves from the kingdom since or shortly before November 5th, 1688, were attainted unless they returned before September 1st.

A third clause, according to King, condemned nearly two hundred absentees who had left the country before November 5th, 1688, unless they returned before October 1st, but nearly sixty of this number whose usual residence was in England were excepted from the operation of the clause unless James went to England before October 1st and unless they then failed to show their loyalty.

In all, therefore, it would seem that, if we follow King as corrected by Davis, between eighteen and nineteen hundred persons were attainted; and if we follow Harris, and a pamphlet cited by Davis as "the List" the number may possibly be two thousand two hundred.^[15]

Some writers have attempted to deny the existence of this Act, asserting that it is a forgery made by someone in the Williamite interest. This view according to Davis cannot be sustained. But it seems difficult to accept Archbishop King's statement that the terms of the Act were kept a secret, and that none of those named in it could ascertain whether they were included in it or not. That an Act debated on in both Houses, and known to clerks, printers, etc. could be thus kept secret appears quite incredible.

These two Acts have brought down volumes of abuse on the heads of their authors. Especially have the clauses ordering the return from England within a certain time under pain of forfeiture been marked out for blame.^[16] It is said that, first, such persons could not have been made acquainted with the provisions ordering their return and, secondly, that it would have been almost impossible for them to return if they had wanted to. Both these objections are true; but on the other hand it is extremely unlikely that any considerable number of the persons named in these clauses would have wanted to return.

As to the Acts in general, barely a generation had passed since clause (1) of the Act of the Long Parliament for the Settlement of Ireland had condemned practically the whole adult male population to lose both life and estate, and since the Act for the Attainder of the Irish Rebels (1657) had attainted all Catholic and many Protestant landowners, excepting of the Catholics only those falling within the classes of comparatively innocent laid down in the first Act. At least eight thousand Catholic and about one hundred and seventy Protestant landowners had lost everything under the Cromwellians; now about two thousand Protestants, and possibly a few Catholics, were to lose their estates unless, within certain specified periods, they could prove their loyalty. Yet Macaulay can assert that "they"—the colonists—"never came up to the atrocious example set by their vanquished enemy during his short tenure of power."^[17]

And just as, in spite of the apparent ferocity of the first clause of the Cromwellian Act of Settlement, the death penalty was in no case inflicted, so there is no proof that the Jacobite Act would have taken more than the estates of the rebels.^[18]

Much also has been said of the impolicy of these two Acts. King James and his English advisers were against them, as they involved a definite breach with the whole Protestant interest. This they undoubtedly did, and it has also been said that if these Acts had not been passed the treatment of the Jacobites in their hour of defeat would have been more lenient. It would certainly have been more prudent if the Irish had abstained from measures of retaliation until they had made sure of ultimate victory. But the Irish had before them the example of the English Act of 1642; they had been kept for nearly forty years out of their own, and they would have been more than human if they had now refrained from taking it back. And there is not the smallest reason to believe that, if the Jacobites had not passed these Acts, the Williamites in their turn would have refrained from confiscation.

However this may be, as soon as the partisans of William had gained the upper hand, they proceeded to indict and outlaw the partisans of James. One would expect that as regards this, the final confiscation in our story, the information available would be full and clear. But, when one comes to examine the various printed accounts one finds that there is scarcely any set of transactions in our whole history as to which it is so difficult to arrive at the exact facts. I have endeavoured to set out these facts as accurately as possible, yet there are many points which still appear to me obscure.

Unlike the Cromwellians, the Williamites did not proceed to a wholesale confiscation, leaving to the victims the onus of proving their innocence. Commissions were issued to various persons to inquire into the conduct during the late "rebellion" as the support of James was now called, and verdicts were to be brought in in the usual way by juries of freeholders.

These inquiries went on from 1691 until Sept. 1st, 1699, the date fixed by the Act passed in 1697, entitled an Act to Hinder the Reversal of Several Outlawries and Attainders, etc.^[19]

One would expect that apart from persons who through infancy, physical disabilities, or absence could not be considered guilty of rebellion, and apart from those few persons, if there were any such, who saved their estates by a timely submission, the persons outlawed by this procedure would have included all Catholic landowners in Ireland. But we are told, on the authority of the Commission of 1699 that in many places, notably in the west of Ireland, juries, often composed of adherents of James who had been secured in their estates by the Articles of Limerick, refused to convict persons whose support of the fallen monarch was notorious.^[20] As it was, however, the Commissioners of Irish Forfeitures reported in 1699 that 3,921 persons in Ireland as well as 57 who resided in England had been attainted and outlawed, and that these persons between them owned over one million and sixty thousand Irish Plantation acres.^[21]

But these figures raise difficulties. We have seen that, as a result of the Acts of Settlement and Explanation, the total number of Catholic landowners in Ireland restored or confirmed under the Acts of Settlement and Explanation can hardly have exceeded thirteen hundred. So that it is not possible that the 3,921 persons outlawed, even if, as is certain, some Protestants were among them, were all landowners. In the number were probably included many younger sons and other relatives of landowners, holding no landed property, merchants, members of the learned professions and so forth. For example, D'Alton mentions that the lists of those attainted contain the names of one hundred O'Neills, while we know that not ten of that name can have held any land after the Restoration. Yet making all deductions the number attainted seems surprisingly large.^[22]

And on the other hand the amount of land they are said to have held between them seems surprisingly small, even though to the area specified we must add a certain amount for lands of which the Report says no proper surveys existed, and also between seventy and eighty thousand acres for small scattered parcels of which many, they say, only amounted to a single acre.

If between them the forfeiting persons held only something over one million one hundred thousand plantation acres, or allowing for Potty's error, concealments, etc. something like two and a quarter million English acres, what credence can be given, as I have said already, to Potty's statement, accepted blindly by most modern writers, that the Catholics after the Restoration settlement still held one-third of the profitable land of Ireland, i.e., five million English acres? These are points deserving^[23] of a fuller study than can be given here. From the penalties of outlawry and forfeiture were excepted, of the above 4,000, all such persons as could show that they were comprised within the Articles of Galway and Limerick. They were to be pardoned on submitting to William, to have their attainders and outlawries reversed and to enjoy their property as they had held it in the reign of Charles II.

The first set of articles, referring to the inhabitants of Galway, and of such of the garrison as chose to submit, present no difficulties. But round the latter set, which laid down the conditions of submission for the whole of the remaining partisans of James fierce controversies have raged. For our present purpose the important article of the Civil Treaty of Limerick is the second.

This laid down that "all the inhabitants or residents of Limerick, or any other garrison now in possession of the Irish, and all officers and soldiers, now in arms under any commission of King James, or those authorised by him to grant the same, in the several counties of Limerick, Clare, Kerry, Cork and Mayo, or any of them, and all such as are under their ^protection in the said counties; and all the commissioned officers in their Majesties' quarters, that belong to the Irish regiments, now in being, that are treated with, and are not prisoners of war, nor have taken protection" shall on submitting be left in possession of all their estates, rights, titles, etc. which they held or were lawfully entitled to in the reign of Charles II.

But according to a memorandum by George Clarke Secretary of War, his clerk Mr. Payzant in transcribing the fair copy which was actually signed left out the italicised words and all such as are under their protection in these counties. The mistake was discovered the next day, before the actual surrender had taken place, and Sir Theobald Butler drew Clarke's attention to it. But by this time the actual signed copy had gone with Ginkell to the King; and the Lords Justices, while acknowledging the mistake, thought it "inconvenient with the respect they owe to His Majesty" to rectify the matter before they received his answer. This seems a perfectly consistent and credible story; its truth was admitted afterwards by the Lords Justices and William himself.^[24] There seems to be no reason to suspect that the omission was in any way intentional; but equally there seems to be no reason to suppose that there never was any omission, and that the whole story of the omitted words is an invention.

It is curious to see how modern historians have treated this point. Macaulay omits all reference to it. Murray declares that of the civil articles two only, the first and the twelfth—both, be it said, dealing with religion—are concerned with the fate of the Irish. And he does not quote the second article at all. But he devotes a page to Clarke's story of the omission mixing up with it however at the end the question of religious toleration. Then later on he alludes to the clause as if instead of being an omission it had been added. Thus on page 250 he speaks of the "addition made in the second article of the civil treaty of Limerick."^[25]

But it is Froude who gives the most extraordinary account of this transaction. According to him, William's express statement in his declaration of February, 1692, that the words had been accidentally omitted is false: the omission had been a deliberate one on the part of the Lords Justices who had arrived before Limerick between the settlement of the original draft on September 28th and the actual signature of the Treaty on October 3rd. Further on he speaks of the "extended form" in which the King had ratified the articles, and finally treats what at first he puts forward as a hypothesis as if it was a fully established truth, for he actually speaks "of the features which had been surreptitiously introduced into them (the articles)."^[26]

He gives no real reason for such extraordinary behaviour on William's part; nor does he explain why the Lords Justices who, according to him, had deliberately omitted the words, afterwards declared that the omission was due to an accident. We can test the reliability of Froude's theories on one point, and on that it decisively breaks down. He says "The estates of those who were absent, and yet were compromised in the insurrection, were in the counties thus carefully particularized, and thus it might be said that nearly every Catholic of consequence, with a disposition to be dangerous, would be covered by the broad vagueness of the word 'Protection.'"

It is only necessary to examine this statement to see the absurdity of it. For of the five counties named, in which King James still had forces in arms, Cork and Limerick were almost entirely in possession of the Williamite troops. In Kerry scarcely any Catholics had recovered lands at the Restoration. So there remain merely the two counties of Clare and Mayo in which there could have been any considerable number of persons covered by the disputed words. Sligo, named by Froude is not mentioned in the second article at all, although it is mentioned in the heading.

The Treaty of Limerick had stipulated that the conditions agreed on were to be confirmed by Parliament, and William had promised in his Letters Patent confirming the treaty to recommend this. When at last, after long delays and at least one refusal the Irish Parliament did pass an Act purporting to confirm the Articles, the disputed clause was omitted by the Commons. The Lords at first objected; but finally the Act, in its mutilated form, became law by a majority of one vote.

Seven temporal peers and seven bishops protested that while the title of the Act was "for the Confirmation of Articles made at the Surrender of the City of Limerick" yet no one of the said Articles is therein fully confirmed. It seems that William, despairing of overcoming the resistance of the Commons reluctantly consented to the omission of the words and "all such as are under their protection in the said counties."

To sum up this question we may conclude that the disputed clause was agreed on by both sides in the original draft of the articles; that its omission from the copy actually signed was purely accidental; that neither the Lords Justices nor William desired to take any advantage of this omission; that yielding to the clamour of the colonists the clause was omitted from the Act of Parliament purporting to confirm the articles of Limerick; and that the number of persons affected by this omission cannot have been very great.

Returning now to the actual effects of the second article, it is to be noted that its drafting does little credit to the representatives of the Irish. For it stipulated for terms only for those actually in arms for King James, or under the protection of the Jacobite forces. Therefore it acquiesced in the forfeiture of all prisoners of war and of all those civilians in that part of Ireland, by far the greatest portion, which was already in the hands of the Williamites as well as of all those who had fallen in fight or died during the war.^[27] It is true that the first terms asked for by the Irish had included a complete amnesty for all the supporters of James. These terms had been scornfully rejected by Ginkell; but it seems probable that as regards the estates of the partisans of James a little perseverance would have obtained better terms. William was anxious to end the war at any price, and must above all have been anxious to prevent any considerable emigration from Ireland to France.

Under the provisions of the articles of Galway and Limerick, as finally ratified by the Irish Parliament, 1,283 Catholic proprietors retained their estates estimated to amount to 233,106 Irish acres. It would seem, too, that between the surrender and the Act of 1697 a certain number of the Irish were allowed the advantage of the disputed clause.^[28] In addition sixty-five leading men, with between them 74,733 plantation acres were pardoned and restored by William, It is not necessary for our purpose to follow in detail the dealings with the forfeited lands. Most of them were disposed of by William to his favourites, many of them, such as Bentinck, Ginkell and Ruvigny, foreigners. The personal estate of King James, his share of the spoil under the Act of Settlement, was given to William's former mistress, the Countess of Orkney.^[29] There grants provoked indignation in England, and the English Parliament set up a commission to enquire into the Irish forfeitures. Their report, presented in 1699, led to the English Act of Resumption in 1700 which revoked all William's grants except five, and directed that all forfeited estates should be vested in thirteen trustees and sold by them by public auction.

Before these transactions an Outlawry Bill had been introduced in 1697 into the Irish Parliament. This Bill contained a clause taking away the estates of all adherents of James who had been killed in "rebellion" or had died in foreign service, even if their estates had not up to then been forfeited. But the Irish House of Lords protested vigorously against punishing by attainder the families of men who had been killed in the service of one whom they had considered to be their lawful sovereign. According to Froude, a less sweeping measure was introduced. But the Act in its final form as printed in the Irish Statutes expressly convicts and attaints all persons who either had been found by a jury or who within two years from September 1st, 1697, should be found to have died or to have been slain in actual rebellion.

This Act, as I have already said, took away from the Crown all power to reverse outlawries, etc. not reversed or pardoned before July 27th, 1697, except in the cases of those who had been adjudged, or who within two years might be adjudged within the Articles of Gal way and Limerick.

But from the operation of the Act were excluded thirteen peers, including Sarsfield, and about nine other persons.^[30] Of these Lord Kerry and Lord Kingston were Protestants. These the King could pardon if he wished and if they submitted; and accordingly most of them were pardoned and restored.

Much confusion exists in our printed sources owing to the two Acts of the Irish Parliament of 1697, and the English Resumption Act of 1700. This last did not interfere with those persons who had been adjudged to be within the Articles of Limerick and Galway. But it led to a more stringent inquiry into concealed forfeitures.^[31] It also set up a court before which all persons claiming any interest in the estates actually forfeited, were to appear and present their claims. Of 3,150 claims sent in, 373 were allowed. Much confusion has been caused by the way in which Hardinge has represented this matter in an article in the Transactions of the Royal Irish Academy. He speaks of the persons whose claims were allowed as "innocents," and several writers following him have taken these innocents to be the same as the persons comprehended within the Articles of Galway and Limerick. He further states that to these "innocents" the Court of Claims awarded 655 denominations of land with a total area of 97,853 Irish Plantation acres, and 1,965 denominations with no area specified. By a sum in simple proportion he then arrives at the result that 391,412 Irish acres were "restored" to these innocents. As 640,460 Irish acres were actually sold, besides 402 denominations whose areas are not stated, he thinks that 716,374 Irish acres were ultimately forfeited, which with the 391,412 acres "restored to innocents" and the 307,839 retained by the persons comprehended in Articles or pardoned by William would make up a total of 1,415,625 acres, an amount entirely at variance with the statement of the Commissioners in 1699.

But when we look at the list of "innocents" which he prints we find among them notorious partisans of William such as the Duke of Ormond, the Earl of Thomond, Sir R. Southwell, Lord Massereene, several bishops and corporations, together with some forty undoubted Protestants of Co. Tyrone. There are some Catholics in the list, such as the children of Lord Kenmare who were minors, and other Catholics who had been pardoned by the King or were comprehended in the Articles. By far the greater number of the names however are those of Protestants. It would seem, therefore, that this list is really one of the claims to various interests in the forfeited estates which were allowed by the Court, and it is very probable that the figure of 391,412 acres given by Hardinge as the area awarded to these persons is altogether too high. On the other hand we may allow his figure of what was actually sold, and perhaps allow of his estimate of the area of the 402 denominations of which the area is not specified. The Commissioners explicitly stated that, besides the acreage returned by them, there were also forfeited lands of which no correct survey existed, and whose area therefore they had not estimated. There were also small parcels forfeited all over the country, which, said they, might amount to 70,000 or 80,000 acres in addition to their previous estimate. Thus the real area of the lands belonging to persons indicted and outlawed may well have been 1,150,000 Irish acres of profitable land, an amount which would allow an ample margin for the area adjudged to "innocents" as well as for the area restored by the King, or by the Articles of Limerick.

A few specific cases may be given to show how the estates of individuals suffered from the harsh conditions of the Articles of Limerick especially as interpreted by the Act professing to confirm them. The Earl of Clancarthy, owner of nearly the whole barony of Muskerry, was taken prisoner at the surrender of Cork. He was therefore not within the Articles, and his vast estate, valued soon after at £60,000 a year was forfeited.^[32] At the surrender of Cork no terms were made for the lands of the citizens, and so the old loyalist families Copingers, Sarsfields, etc. finally lost the lands which they had recovered with so much difficulty at the Restoration. Robert Grace of Courtstown, owner of an immense estate in Kilkenny, was included in the Articles. But he died soon after, and in 1701 it was discovered that his elder son Oliver had died in France nine days after Robert's decease. As this was after the Articles had been signed, and as his name had not been included in the fourth Article, the estate was forfeited; although for ten years it had been held by John younger son of Robert.^[33] Daniel O'Brien, Viscount Clare,^[34] to whose grandfather James I. had granted about one-half of the MacMahon territory of West Corcabaskin, had not only recovered his ancestral property at the Restoration, but had also got possession of the properties of several other persons.^[35] His Clare estate was estimated at over eighty-four thousand English acres. He died in 1690. His sons followed the fortunes of their sovereign in France, making no claim to the benefits of the capitulation.

If now, considering the results of the two Irish Acts, the Resumption Act, and the Articles, we try to estimate the area still left in the hands of Catholics, it would seem, making all allowance for the estates of minors, etc., for persons acquitted by partial juries, for under measurements, and all other sources of error, that this area cannot have exceeded, if it reached, a million English acres of profitable land.^[36] The aim of the Penal Laws was to secure that this area should never be increased, and should if possible be diminished.

The Cromwellian confiscation and the proceedings at the Restoration had swept away the great bulk of the lesser Catholic landowners. Now, under William, of the great men who had recovered at the Restoration a large number lost everything and, following their King to France, disappeared from Irish history.

"Wild geese rising on clamorous wing.
To follow the flight of an alien king······Ended the roll of the great
And famous leaders of armies,
The shining lamps of the Gael,
Who wrestled awhile with fate
And broke the battle on foemen,
Ere the end left widowed Eire
Lone with her desolate wail."

1. For the general history of this period, see Murray: Revolutionary Ireland and its Settlement. The work is of course strongly anti-Jacobite; but has a useful corrective in the introduction by Dr. Mahaffy. This points out that Dr. Murray has given too much credence to Archbishop King. Davis in the Patriot Parliament of 1689, gives a very clear account of the proceedings of James' Parliament, but of course he takes the opposite standpoint to Dr. Murray's.
2. He says, what seems borne out by the records of the sittings, "There were several times when the Commissioners wanted causes and could not prevail with men to bring them in."
3. Finch's report is printed in the appendix to Carte's Ormond.
4. All transplanted persons were to put in their claims: all in possession of lands were to have their due share set out and confirmed by Letters Patent: all not yet satisfied were to be reprised from lands still undisposed of. The document states that many had been dispossessed of the lands assigned to them by Cromwell (in order to restore innocents and others who had decrees under the Act of Settlement) and had not yet been reprised. Ormonde MSS. 1899. Vol. II. Old Series, p. 348.
5. Bonn: Vol. II., p. 118, quoting the Carte papers.
6. According to Murray 300 officers and 6000 men were turned adrift, p. 61.
7. According to Murray the new Lord Chancellor, Fitton, a convert—he was descended from an Elizabethan "Undertaker"—held that among 40,000 Protestants there was not one who was not a traitor, a rebel and a villain. Naturally the Irish Catholics were still more convinced of this.
8. An anonymous letter, dated Dec. 3rd, 1688, was found in the street at Comber, Co. Down, purporting to be a warning to Lord Mount Alexander that there was a plot to massacre all Protestants. Murray, p. 71. He admits that the letter "was a hoax." This is strikingly reminiscent of recent events.
9. Derry shut its gates on Dec. 7th. Enniskillen revolted a few days later.
10. Murray holds the contrary view, namely, that the Crown of Ireland was by the Statute Law of Ireland, annexed to that of England (p. 111). But his interpretation of this could not, I think, have been upheld in the 17th century without great risk to the upholder. The whole public law of the period looked on James as the lawful sovereign, William as an usurper, his partisans as rebels.
11. A "List of the Nobility of Ireland in 1688" printed at the end of the pamphlet "The State of the Papist and Protestant Proprieties" gives only twenty-one Catholic peers, among them Baltimore, Castlemaine, Baresford (sic.) and Bronkart. It gives Clancarthy and Clare among the Protestants; also Howth, Kerry, Kingston and Kinsale. Omitted are Limerick, Louth, Trimleston, Netterville, Dunsany, Dunboyne, Mountgarret, and several others.
12. It appears that the Archbishop of Armagh though summoned was excused attendance on account of age. Two others, Killaloe and Waterford, were also excused; but sent their proxies against the repeal of the Act of Settlement.
    Lords Kinsale, Kerry, Howth, Kingston, Cavan, Longford, Granard, Ross, Monaghan, Ballyshannon are all given by Davis, the three first were old Anglo-Irish, the others new English. Lord Ikerrin was a Protestant in 1698. King gives Barrymore and Malone, Baron Glenmalun and Courchey.
13. Macaulay seems entirely to ignore the existence of the provisions for the compensation of purchasers. He devotes the greater part of two paragraphs to a denunciation of the injustice to persons who had sunk money in the purchase or improvement of forfeited estates.
14. It was also provided that the money paid for bona fide purchases of transplanted estates was to be paid over to the Crown by the ancient proprietor, and was to be used to increase the fund for reprisals.
15. The lists as given by King, Harris and the pamphlet published in 1690 differ widely. Davis treats of the whole question very fully. Murray does not attempt to decide the true number.
    The lists were hurriedly drawn up, and the same persons sometimes figure in more than one category.
16. Macaulay actually calls it "a law without a parallel in the history of civilised countries." We must only conclude that he did not consider England under the Commonwealth a "civilised country," or that he had never read the Acts of the Long Parliament dealing with Ireland. He believes that the names in the Act of Attainder were really kept secret.
17. Chap. XII.
18. Much has been made by Macaulay and others of the fact that the power of pardon was taken away from James if not exercised before Nov. 1st, 1689. But there had been precisely similar enactments preventing Charles I. from pardoning the Irish rebels, and preventing Charles II. from exercising the royal prerogative after the passing of the Act of Explanation. The Act to Hinder the Reversal of Outlawries of 1697 took away the King's power of pardon after July 27th, 1697, except as regards the death penalty.
19. It was laid down in the Act to Confirm the Articles of Limerick that the "rebellion" was to be deemed to have commenced on April 1st, 1689, that being the date allowed for submission by William's proclamation of February of that year.
20. They say that no enquiries into the forfeitures were held west of the Shannon until 1695.
21. Nos. (12) and (14) of the Report of the Commission. It seems plain that their figures all through refer only to "profitable" land. No. (76) of the Report adds between 70,000 and 80,000 acres to the forfeited area.
    There were no forfeitures in Derry, Donegal, Tyrone or Leitrim, which would show that no Catholics recovered lands there at the Restoration, except the Abercorn family, the head of which had been pardoned by William in 1692.
22. See for information as to the lists of attainders Appendix to the 17th Report of the Deputy-keeper of the Public Rolls.
23. On the other hand it seems difficult to accept the figures of the Commissioners. The Earl of Clancarthy, the Earl of Limerick and Viscount Clare between them forfeited nearly 400,000 English acres. Among those secured by the Articles of Limerick was the Earl of Antrim, the owner of an immense estate, and, for a time, Grace of Courtstown who held over 30,000 English acres. In the forfeited area also were included the immense estates of the Earls of Clanrickard and Kenmare; the former ultimately restored by the King, the latter secured to the Kenmare heirs by the Court of Claims.
24. In the following February William by Letters Patent declared that the words had been casually omitted by the writer. Story gives substantially the same account of the omission; but says that the arrival of the French Fleet led the Lords Justices to allow of the omitted words.
25. On page 308 however he speaks of "the omitted clause."
26. Froude: English in Ireland, pp. 205, 225, and 254 of the edition of 1872.
27. And the "Act for Confirming the Articles" enacted that all persons absent from Ireland when the Treaty was signed were excluded from it unless they were comprehended within the 3rd and 4th Articles. The latter only referred to four persons.
    The Duke of Berwick in his memoirs criticises severely the imbecility of the Irish plenipotentiaries.
28. It seems likely that after the passing of this Act these people were dispossessed.
29. It was estimated at over 95,000 acres; other estimates put it at 120,000 acres.
30. The peers were Lords Tyrone, Kerry, Kingston, Bellew, Baltimore, Athenry, Upper Osaory, and the late Lords Tyrone, Dillon, Louth, Carlingford, and Nettcrville, besides Sarsfield whom James had made Earl of Lucan, and who had been killed in 1693.
31. The Commissioners had reported that there were manypersons not yet indicted for rebellion, and many concealments.
32. This is Archbishop Boulter's estimate in 1735.
33. The Grace estate was over 32,000 acres.
34. Daniel O'Brien, first Viscount Clare, was a younger son of Conor, third Earl of Thomond.
35. In his will, made in 1690, he mentions that he had got the estates of others in his "proviso" and desires that they should be given back to the rightful owners.
36. 616,000 restored by the Articles, or by Royal pardon: then the estates of minors, etc., of those excepted from the Outlawries Bill (of whom some were Protestants), and claims, such as those of the Kenmare minors, allowed by the Court set up under the Resumption Act, and the estates of persons acquitted or never indicted would have to make up the balance. We might add about 350,000 acres for "unprofitable land."