Corpus of Electronic Texts Edition
The Irish Parliament of James II (Author: Thomas Osborne Davis)

chapter 5

Repeal of the Act of Settlement

IT appears from the Journal of the proceedings of the parliament, and from many other authorities, that no act of the Irish Parliament of 1689 received such full consideration as the following. Two bills were brought in for the purpose of repealing the acts of settlement — that into the House of Lords, on May 13, by Chief Justice Nugent; that into the House of Commons by Lord Riverstown and Colonel MacCarthy. Committees sat to inquire into the effects of the bills; many memorials were read and considered; counsel were heard, both generally on the bills and on their effects on individuals; the debates were long, and it was not till after several conferences between the two houses that the act passed. The act was deliberately and maturely considered.

The titles and some of the effects of the acts of settlement are given in the preamble to the following statute. The effect of those acts of settlement had been, in a great degree, to confirm the unprincipled distribution of Irish property, made by Cromwell's government, amongst those who had served it best, or, what meant nearly the same thing, who had most injured the Irish. The acts of settlement gave legality to a revolution which transferred the lands of the natives to military colonists. The repeal of those acts, within 24 years after they passed, and within about 37 years after that revolution took place, cannot excite much surprise. The one-third of their holdings (which the Cromwellian soldiers were obliged by the acts of the settlement to give up) could not have made a fund to reprize those who had been ousted from the entire.


However, the giving up of that one-third was not strictly enforced, and the stock resulting was wasted by commissioners, and distributed as the applicants had interest at court, not as they had title to the lands. Thus, Lord Ormond got some hundred thousand acres; albeit he had done more substantial injury to the Irish, and to the royalist cause in which they foolishly embarked, than any of the parliamentarians, from Coote to Ireton. Under such circumstances, we are not exaggerating the effect of the acts of settlement, passed after the Restoration, in saying, that they confirmed by law the Cromwellian robbery. The testimony of all the credible writers of the time goes to the same effect. Indeed, the repeal of the acts of settlement would have been against the interests of the natives, if they had received justice from those acts. This, in itself, is sufficient to prove how much hardship they had caused. The repeal of those acts by the Irish, as soon as they were in power, seems natural, considering how great and how recent was the injury they inflicted. Still, as we said, 24 years had passed since those acts had become law Many persons had got possession of properties under that law, and many of those properties had, doubtless, been sold, leased, subdivided, improved, and incumbered, upon the faith of that law. It might be urged that persons interested by such means in these properties had become so with full knowledge that they had been acquired by violence and injustice, and that the original owners and their families were in existence, ready and resolved to take their first opportunity of regaining their rights. Such reasoning fixes all who had advanced money, made purchases, or become in any wise interested under the acts of settlement, with such injustice and imprudence as to diminish their claim for compensation upon the repeal of those acts. But it only diminished, it did not destroy that claim. All those persons reposed some confidence in the security of the


then existing government; and many of them found a justification for the Cromwellian conquest, in the conduct of the Irish, as the well-sustained falsehoods of the English describe it.

For these reasons, Chief Justice Keating prepared a long memorial, which Lord Forbes, Granard , presented to the king, during the discussions on the bills, in May, 1689, setting forth the claims of those who came in under the acts of settlement, as incumbrancers, purchasers, tenants, by marriage, etc. This memorial is dishonestly represented by the Whig writers, as directed against the repeal altogether; but any one who reads it (which he can do in the appendix to Harris's life of William) will find that it is an argument in favour of the classes described in the last sentence. From the long and careful clauses in the following act, for the reprisal and compensation of those classes, we must infer that Keating's memorial produced its intended effect. However, these clauses require to be carefully examined, to see whether they carry out this principle of compensation fairly and impartially. The character of this parliament for moderation depends greatly on their doings in this respect.

We now come to a second class, the Irish who, having been given the alternative of ‘Hell or Connaught’ (as a certain bishop was of Heaven or Dungarvan), preferred the latter, and were located on the lands of the Connaught people. This class would generally come in for their old holdings in the other provinces, and required no compensation; but the distribution, under this act, of the incumbrances, etc., between them and the owners of their former and present lands, seems lawyer-like and reasonable.

The next great class are the ‘adventurers,’ those who got lands during the Commonwealth, and whose holdings were confirmed by the settlement. Their claim was boldly and ably urged by Anthony Dopping, bishop


of Meath. His speech on the Repeal Bill is given in King's appendix, and is worth reading. He bases their claim upon the supposition of the Irish having been bloody rebels, rightly punished by the giving of their lands to their loyal conquerors. His speech gives the genuine opinion of the English at the time. The preamble to the following act, and that to the Commons' bill, give the Irish view of the war. These documents deny that the bulk of the Irish were engaged in the conspiracy of 1641; and the denial is true, although it is also true that more than a ‘few indigent persons’ engaged in it, as is plain from LordMaguire 's narrative; and although it might have more become this Irish parliament to proclaim the absolute justice of the rising of 1641, on account of the sufferings of all ranks of Irish, in property and in political and religious rights; while they might have lamented that English atrocities had led to a cruel retaliation, though one infinitely less than it has been represented. However, the parliament, probably from delicacy to the king, based the rights of the Irish upon the peace of 1684, and the Restoration as restoring them to their loyalty, and to the properties possessed in 1641.

Most fair inquirers will allow the justice of this restoration of the Irish; but will lament that the act before us contains no provision for the families of those adventurers, who, however guilty when they came into the country, had been in it for from thirty to forty years, and had time and some citizenship in their favour. There had been sound policy in that too, but it was not done; and though the open hostility of most of those adventurers to the government — though the wants and urgency of the old proprietors, added to a lively recollection of the horrors which thronged about their advent, may be urged in favour of leaving them to work out their own livelihood by hard industry, or to return to England, we cannot be quite


reconciled to the wisdom of the course. Yet, let any one who finds himself eager to condemn the Irish Parliament on this account read over the facts that led to it, namely: the conquest of Leinster before the Reformation; the settlements of Munster and Ulster, under Elizabeth and James; the governments of Strafford, and Parsons, and Borlace; Cromwell's and Ireton's conquest; the effects of the acts of settlement, and the false-plot reign of Charles II.; let them, we say, read these, and be at least moderate in censuring the Parliament of 1689.

The Preamble to the Act of Repeal of the Acts of Settlement and Explanation, etc., as it passed the House of Commons.23

Whereas the Ambition and Avarice of the Lords Justices ruling over this your Kingdom, in 1641, did engage them to gather a malignant Party and Cabal of the then Privy Council contrary to their sworn Faith and natural Allegiance, in a secret Intelligence and traitorous Combination, with the Puritan Sectaries in the Realm of Great Britain, against their lawful and undoubted Sovereign, his Peace, Crown, and Dignity, the Malice of which made it soon manifest in the Nature and Tendency of their Proceedings; their untimely Prorogations of a loyal unanimous Parliament, and thereby making void, and disappointing the Effects of many seasonable Votes, Bills, and Addresses which, passed into Laws, had certainly secured the Peace and Tranquility of this Kingdom, by binding to his Majesty the Hearts of his Irish Subjects, as well by the Ties of Affection and Gratitude, as Duty and Allegiance there. The said Lords Justices traitorously disbanding his Majesty's well assured Catholic Forces, when his Person and Monarchy were exposed to the said Rebel Sectaries, then marching in hostile Arms to dispoil


him of his Power, Dominion, and Life; their immediate calling into the Place and Stead of those his Majesty's faithful disbanded Forces, a formidable Body of disciplined Troops allied and confederated in Cause, Nation and Principles with those Rebel Sectaries; their unwarrantable Entertainment of those Troops in this Kingdom, to the draining of his Majesty's Treasury, and Terror of his Catholic Subjects, then openly menaced by them the aforesaid Lords Justices with a Massacre and total Extirpation, their bloody Prosecution of that Menace, in the Slaughter of many innocent Persons, thereby frightening and compelling others in despair of Protection, from their Government, to unite and take Arms for their necessary Defence, and Preservation of their Lives; their unpardonable Prevarication from his Majesty's Orders to them, in retrenching the Time by him graciously given to his Subjects so compelled into Arms of returning to their Duty; and stinting the General Pardon to such only as had no Freehold Estates to make Forfeitures of; their pernicious Arts in way-laying, exchanging and wickedly depriving all Intercourse by Letters, Expresses, and other Communications and Privity between your said Royal Father and his much abused People; their insolent and barbarous Application of Racks and other Engines of Torture to Sir John Read, his then Majesty's sworn menial Servant, and that upon their own conscience Suspicions of his being intrusted with the too just Complaints of the persecuted Catholic aforesaid; their diabolical Malice and Craft, in essaying by Promises and Threats, to draw from him, the said Read, in his Torments, a false and impious Accusation of his Master and Sovereign as being the Author and Promoter of the then Commotion, so manifestly procured, and by themselves industriously spread.

And whereas a late eminent Minister of State, for parallel


Causes and Ends, pursuing the Steps of the aforesaid Lords Justices, hath by his Interest and Power, cherished and supported a Fanatical Republican Party, which heretofore opposed, put to flight, and chased out of this your Kingdom of Ireland, the Royal Authority lodged in his Person, and to transfer the calamitous Consequences of his fatal Conduct from himself, upon your trusty Roman Catholic Subjects, to the Breach of public Faith solemnly given and proclaimed in the Name of our late Sovereign, interposed between them and his late Majesty's general Indulgence and Pardon, and wrought their Exclusion from that Indemnity in their Estates, which by the said public Faith is specially provided for, and since hath been extended to the most bloody and execrable Traitors, few only excepted by Name in all your Realms and Dominions. And further, to exclude from all Relief, and even Access of Admittance to Justice, to your said Irish Catholic People, and to secure to himself and his Posterity, his vast Share of their Spoils; he the said eminent Minister did against your sacred Brother's Royal Promise and Sanction aforesaid, advise and persuade his late Majesty to give, and accordingly obtained his Royal Assent to two several Acts. The one entitled, An Act for the better Execution of his Majesty's gracious Declaration for the Settlement of this Kingdom of Ireland, and Satisfaction of the several Interests of Adventurers, Soldiers, and other his Majesty's Subjects there. Which Act was so passed at a Parliament held in this Kingdom, in the 14th and 15th Years of his Reign. And the other, An Act entitled, An Act of Explanation, etc.

Which Act was passed in a Session of the Parliament held in this Kingdom, in the 17th and 18th Years of his Reign, most of the Members thereof being such, as forcibly possessed themselves of the Estates of your Catholic Subjects in this Kingdom, and were convened together


for the sole special Purpose of creating and granting to themselves and their Heirs, the Estates and Inheritances of this your Kingdom of Ireland, upon a scandalous, false Hypothesis, imputing the traitorous Design of some desperate, indigent Persons to seize your Majesty's Castle of Dublin, on the 23rd of October, 1641, to an universal Conspiracy of your Catholic Subjects, and applying the Estates and Persons thereby presumed to have forfeited, to the Use and Benefit of that Regicide Army, which brought that Kingdom from its due Subjection and Obedience to his Majesty, under the Peak and Tyranny of a bloody Usurper. An Act unnatural, or rather viperously destroying his late Majesty's gracious Declaration, from whence it had Birth, and its Clauses, Restorations and Uses, inverting the very fundamental Laws, as well of your Majesty's, as all other Christian Governments. An Act limiting and confining the Administration of Justice to a certain Term or Period of Time, and confirming the Patrimony of Innocents unheard, to the most exquisite Traitors, that now stand convict on Record; the Assigns and Trustees, even of the then deceased Oliver Cromwell himself, for whose Arrears, as General of the Regicide Army, special Provision is made at the Suit of his Pensioners. Now in regard the Acts above mentioned do in a florid and specious Preamble, contrary to the known Truth in Fact, comprehend all your Majesty's Roman Catholic Subjects of Ireland, in the Guilt of those few indigent Persons aforesaid, and on that Supposition alone, by the Clause immediately subsequent to that Preamble, vest all their Estates in his late Majesty, as a Royal Trustee, to the principal Use of those who deposed and murdered your Royal Father, and their lawful Sovereign. And furthermore, to the Ends that the Articles and Conditions granted in the Year 1648, by Authority from your Majesty's Royal Brother, then lodged in the Marquess of Ormond, may be


duly fulfilled and made good to your Majesty's present Irish Catholic Subjects, in all their Parts and Intentions, and that the several Properties and Estates in this Kingdom may be settled in their ancient Foundations, as they were on the 21st of October, 1641. And that all Persons may acquiesce and rejoice under an impartial Distribution of Justice, and sit peaceably down under his own Vine or Patrimony, to the abolishing all Distinction of Parties, Countries and Religions, and settling a perpetual Union and Concord of Duty, Affection, and Loyalty to your Majesty's Person and Government in the Hearts of your Subjects, Be it enacted, etc.

[Here follows the Act of Repeal.]