CHAPTER VIII THE BEGINNING OF THE PENAL LAWS On the 26th June 1693, Queen Mary signed instructions for the Lords Justices of Ireland.' These corresponded in large measure with those given to Sidney when he began his rule, but where they differed they tended to take a sterner tone. Of these thirty heads of instructions not more than six, perhaps, are wholly new. Sidney's instructions had directed a better valuation of escheated land, but these specified that no value was to be certified till inquisition were made, and that custodiams might not be granted for more than three years. The rule, difficult to observe in practice, was laid down that when there are letters for disposing of money for public uses, and at the same time other letters for the payment of this money to particular individuals, "you shall prefer the public letters before the private." In order to ensure obedience to this principle no money order was to be issued unless accompanied by a petition which satisfied the Lords Justices, and this petition must further be referred to the Treasury in England for consideration. The Lords Justices were to recommend men worthy of promotion, and no buying and selling of employment, civil or military, was to be permitted. A purchaser, when discovered, was to be discharged from his office and prosecuted according to the law. No letters for grants of possession or titles were to be acted upon till they had been entered at the English Signet Office. That they might the better discharge the trusts reposed in them, the Queen declared that: 1° She 1 C.S.P., Dom., 1693, 194-196; Nairne Papers, vol. vii. p. 25. would not admit any particular complaint of injustice or oppression against any in Ireland, unless it appeared that the complainant had first made his address to them; 2° The places in the chief governor's gift should be left freely to their disposal; 3° No new office should be erected in Ireland till their opinion as to the same were taken; 4 No order for the payment of money should be given to the Receiver of Ireland but through them; and 5° No patent for granting money and lands should be passed in England without their knowledge. The Articles of Galway, Limerick, and other towns to be construed according to the strict meaning, not extending them further than "in justice and honour we are obliged to go." On the 13th of September Nottingham had written to Sidney: "I did not know that any favour was intended to the Papists of Ireland more than their Majesties are obliged, in justice, to allow them and is necessary for the peace of that country." Combining these statements, we see that strict justice, untempered by mercy, was to be meted out to the Roman Catholics. The Lords Justices in Ireland, however, soon manifested less inclination to show them favour than the Queen and her councillors in London. In the summer of 1693 the three Lords JusticesLord Capel, Sir Cyril Wyche, and William Duncombeset about the arduous task of governing Ireland. The need of money was most urgent, for the deficit amounted to £180,000 yearly, and, according to the Commissioners, there was little probability of the revenue improving. The good weather, in fact, brought down the high price of corn, and thus lessened the revenue. This pointed to the summoning of Parliament, but when assembled the House of Commons was almost certain to insist on its sole right of introducing money bills. Just as Sidney had tried to negotiate a loan of £30,000 from Mr. Elnathan Lunn, so they approached Sir Stephen Evans and his partners 1 C.S.P., Dom., 1691-92, Sept. 13, 1692, 447. 2 C.S.P., Dom., 1693, July 27; Capel to the King, 237. 4 Add. 21,136 (Brit. Mus.); Southwell Correspondence. for exactly the same amount.1 Further, Capel, like Sidney, sounded the leading men, and ascertained from them that if Parliament met it would probably grant considerable supplies, and would not meddle with the question of the origin of money bills. He was fortified in his opinion by the fact that the English judges held that the right of the Crown to send such Bills into the House of Commons was founded upon law and constant practice. It was the intention of William to summon a new Parliament shortly after the arrival of the Lords Justices. This rendered it necessary that some Bills should be annexed to the Commission empowering Capel and his colleagues to hold a Parliament. As the Bills lately transmitted to London related to the old Parliament, and therefore could not be affixed to the commission for holding a new one, the Queen ordered three or four of the Bills submitted for her consideration to be transcribed and annexed to the commission. The Bill for the additional excise was one of the contemplated measures. The Lords Justices found themselves involved in a constitutional difficulty by the procedure suggested." Bills as drafted for transmission to England should normally have passed the Irish Privy Council and been engrossed. The Lords Justices had no power to send over Bills at all, otherwise any Bills returned by the English Privy Council with amendments had to go de novo through all the forms in Council, as Bills once engrossed were submitted without modification to the Irish Parliament for acceptance or rejection only. The question arose, Could a Bill originating in the fashion proposed by the Queen's Ministers be amended in the Irish Privy Council? If so, much time would be lost by the discussion of details, which would never have been inserted of the Council's own motion. But if not, there would be involved a violation of Poynings' Law, as interpreted by the 3rd and 4th of Philip and Mary, chap. 4, which required that Bills should be initiated in the Irish Council 1 Add. 21,136 (Brit. Mus.), Southwell Correspondence. 2 C.S.P., Dom., 1693, 237. 3 Ibid. 320. 5 Ibid. 356-357; S.P., Ireland, 355, No. 95. 4 lbid. 188-189. 6 Anson, Law and Custom of the Constitution, i. The Crown, 221-222 (1896). and thence transmitted under the Great Seal to the English Council for approval before being submitted to the Irish Parliament. From a legal standpoint, could a Bill framed in England, and submitted to the Irish Council, without liberty of alteration, be said to have originated in Dublin, as required by the statute, even though for form's sake it were passed by the Irish Privy Council? The Lords Justices did more than hint their answer to this question when they drew attention to the fact that Lord Massarene gave rise to grave comment by his action in promoting a Bill that came from England. They therefore proposed to send over two Bills for money, besides that for an additional excise. The remonstrance proved effectual.1 Lord Nottingham explained that the drafts required from the Irish Council were not public acts; they were merely private papers, written that the English Privy Council might know the opinion of Capel and his colleagues on weighty matters, and that the latter should be informed of the deliberations taking place in London. The Queen's intention in submitting proposals was to prevent desultory debate and to save valuable time. She allowed the Council to alter any part of the drafts, and their right to consider these or other matters was not in any way curtailed. As Capel gave one precedent Mary put forward another. Her method had been employed in the time of Charles II., and indeed in her own reign before Capel came into authority. In accordance with their instructions the Lords Justices received the report of the proceedings of the commissioners who had inquired into the forfeited goods and chattels and the embezzled stores of war and provisions.3 The need for this Commission was evidenced by the fact that discoveries of concealed forfeitures to the value of £63,669 were made, and penalties amounting to £36,570 were imposed. Officials were appointed throughout the 1 C.S.P., Dom., 1693, 356-357. The Lords Justices to Nottingham, Oct. 7 (two letters). 2 C.S.P., Dom., 1693, Oct. 17, Nottingham to the Lords Justices; S.P., Ireland, King's Letter Book, 1, 479. C.S.P., Dom., 1693, July, 241-243; Harding, Transactions of the R.I.A., xxiv. country for collecting the arrears of rent from forfeited property. In order to achieve these ends the commissioners had been granted special powers on the 25th of February 1693.1 They had authority to summon all persons concerned and to punish for non-appearance; to call for any documents necessary for their information; to administer an oath; to reward or compound with informers; to settle accounts; to seize and sell all forfeited goods; to exact satisfaction from the estates of all embezzlers; and to pay all persons they employed. They were sworn to act without favour or affection, and were to receive every assistance from the Court of Exchequer and from the collectors of revenue. On the 2nd of September 1693 the authority of the commissioners received a large extension. They were empowered to grant the discoverer of forfeited lands and goods the rents of the lands for seven years and a fourth part of the property he had brought to light. Of course grave abuses might arise from the fact that the commissioners seemed to be the only judges of what was forfeitable property and what was not. In order to remedy this evil it was laid down that they could not seize goods from persons before they were forfeited, in fact they were bound to act thereon not otherwise than by process of law. They were given power to inspect the forfeited estates both real and personal, but unfortunately no legal method was prescribed for the carrying out of this duty. They gave no security for the arrears they received, and in many cases the money never reached Dublin Castle. With the object of avoiding this danger in the future both Sidney and the Lords Justices arranged that the commissioners should them 1 C.S.P., Dom., 1693, 45-46; S.P., Dom., Signet Office, Letter Book, 12, 567. 2 C.S.P., Dom., 1693, 303-306; S.P., Ireland, 355, No. 87. 3 See Sir R. Cox to, Nov. 25, 1699: "What is but common justice they may call favouring of the Irish, and a lessening of the forfeitures; and we can't help that. We gott nothing but trouble and censure by that Court of Clayms; and if the justice we adminstred there will distinguish us and preserve us from the destroying angell when he comes to punish the oppressions and perjuryes, notorious and publick, committed against the claimants, it is all the reward we desire or expect for that service. . . We consulted the Government and then told them, that it was not designed to give them any trouble who had no estates, and that such might go home. They answered no, and that they should be indicted whenever it pleased a malicious neighbour, unless they had their adjudications." Hist. MSS. Com. xiv. 2; Portland MSS., 611-612. |