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The last bill of pains and penalties: the case of Daniel O’Sullivan, 1869

Published online by Cambridge University Press:  28 July 2016

Oliver MacDonagh
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Extract

Acts of pains and penalties are an antique form of criminal action, related (but as a small brother, so to speak) to acts of attainder. Both consisted of bills directed against an individual, and passed by king, lords and commons, in contradistinction to impeachment, where the commons acted as accusers and the lords as sole judges in the case. Whereas, however, attainder was confined to cases of treason and felony and carried the death penalty, pains and penalties also covered conduct tending to grave public mischief and were attended by lesser punishments. The first acts of pains and penalties noticed in the legal textbooks belong to the thirteenth century, and generally concern fugitives domiciled abroad, the last belong to the 1720s and 1730s and cover a wide range of political or quasi-political offences. The Layers conspiracy, the South Sea Bubble scandal and the Porteous riots all ended in this form of punitive legislation.

Type
Research Article
Information
Irish Historical Studies , Volume 19 , Issue 74 , September 1974 , pp. 136 - 155
Copyright
Copyright © Irish Historical Studies Publications Ltd 1974

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References

1 See generally SirHoldsworth, W.S., A history of English law (London, 1938), 11, 617–18Google Scholar; Taswell-Langmead, T.P., English constitutional history: from the Teutonic conquest to the present time, 11th ed., by Plucknett, T.F T. (London, 1960), p. 233 Google Scholar; SirMay, TE., A treatise on the law, privileges, proceedings and usage of parliament, 14th ed., by SirCampion, Gilbert (London, 1946)Google Scholar; Jowett, Earl, The dictionary of English law (London, 1959), pp 63, 241.Google Scholar

2 The 1750 edition of Jacob’s New law dictionary, under the heading ‘Pains and penalties’, treats this case as unique and adds that Atterbury, bishop of Rochester, and the others involved ‘were condemned by parliament for want of such evidence as is strictly required by the common law courts’.

3 Hatsell, John, Precedents of proceedings in the house of commons (London, 1796), 4, 94.Google Scholar

4 The Queen Caroline divorce bill of 1820 was technically a bill of pains and penalties (cf. Jowett, op. cit., p. 241), because it was directed at depriving her of her title as well as her marital status. But it was discussed and determined altogether as if it were a bill of divorce. On the other hand, the titles deprivation act of 1917, to deprive peers who bore arms against Britain or her allies during the first world war, was perhaps a ‘cousin’, if a somewhat remote one, to acts of attainder and pains and penalties.

5 I am indebted to Mr P. Ó Maidín, County Librarian, Cork, for this information.

6 Hansard 3, cxcvi, 206 (5 May 1869; J. F Maguire).

7 It was a little later that Gladstone made the famous observation, ‘when the metropolis itself was shocked and horrified by an inhuman outrage, when a sense of insecurity went abroad far and wide’, Englishmen began to ‘embrace, in a manner foreign to their habits at other times, the vast importance of the Irish controversy’ (ibid., col. 1062; 31 May 1869).

8 While O’Sullivan was mayor, an advertisement appeared daily in some of the Irish newspapers, appealing for subscriptions to a fund for the relief of fenian prisoners (of which he was treasurer), and containing these words : ‘we would remind those who look on the proposed disendowment of the established church as a boon that according to the statement of the present premier they are indebted to the fenian prisoners for that tardy measure of justice’ (ibid., col. 1096; 1 June 1869).

9 Ibid., cxciv, 1659–61, 1904, 1997–9 (18, 22, 23 Mar. 1869).

10 Ibid., cxcv, 359 (8 Apr. 1869).

11 Rt Hon. Chichester Samuel Fortescue, M.P for Co. Louth from 1847; lord of the treasury, 1854–5; under-secretary for the colonies, 1857–8, 1859–66.

12 Hansard 3, cxcv, 356 (8 Apr. 1869).

13 Technically speaking, they were released on licence, or ‘ticket-of-leave’. Amnesty has no legal significance, and the prisoners were not pardoned.

14 For O’Farrell, Henry James (1833–68), see Australian dictionary of biography, 5.Google Scholar

15 The prince was later invited to visit the city, but ‘deeply regretted’ that he could not accept the invitation (The Times, 6 May 1869).

16 In full in, for example, Saunders News Letter, 29 Apr. 1869.

17 Hansard 3, cxcvi, 20, 102–5, 263 (3, 4, 6 May 1869); The Times, 1 and 3 May 1869.

18 Hansard 3, cxcv, 1951–2, 1976–81, 1988–90 (30 Apr. 1869).

19 Ibid., col. 1981.

20 John Francis Maguire, M.P for Dungarvan, 1852–65, for Cork city from 1865. Proprietor and principal editor for the Cork Examiner, which he founded in 1841. Elected mayor of Cork on four successive occasions, 1861–4. A member of the Tenant League and of the independent Irish party in the 1850s.

21 Hansard 3, cxcv, 2042 (30 Apr. 1869).

22 Ibid., cxcvi, 13, 77 (3 May 1869).

23 Edward Sullivan, M.P. for Mallow from 1865. Called to the Irish bar, 1848;; Q.C. 1858; serjeant, 1860; law adviser to the crown, 1861; solicitor general for Ireland, 1865–6. Sullivan and Fortescue appear to have been mainly responsible for the decision to bring in a bill of pains and penalties. Initially, the cabinet determined to prosecute the mayor instead of proceeding by penal legislation (Gladstone papers, B.M., Add. MS 44637, nos 47, 49; 30 Apr., 1 May 1869). Then Gladstone was advised by the judge advocate general, O’Loghlen, not to prosecute or introduce a bill of pains and penalties, but instead to procure a general act either depriving Irish mayors of their judicial powers or empowering the lord lieutenant to deprive any particular mayor of his (B.M., Add. MS 44420, nos 195–8; 2 May 1869). On 3 May, however, Gladstone summoned another cabinet meeting, with the observation that Sullivan and Fortescue, ‘in consequence of communications from Ireland’, now recommended proceeding by a bill of pains and penalties; and the cabinet followed this recommendation (B.M., Add. MS 44637, no. 50, Add. MS 44563, no. 309; 3 May 1869).

24 Hansard 3, cxcvi, 102–3 (4 May 1869).

25 ‘At the conclusion of this meeting, the chairman asked them [the audience] not to drink a drop that night, for it was said that the mayor encouraged drunkenness’ (The Times, 6 May 1869).

26 Cork Examiner, 30 Apr. 1869.

27 A bill to dismiss Daniel O’Sullivan, Esquire, from holding, enjoying or taking the office of mayor or justice of the peace, or any office or place of magistracy in the city of Cork, or elsewhere, in Ireland, H.C. 1868–9 (108), iv, 165–8.

28 Hansard 3, cxcvi, 186–92 (5 May 1869).

29 Rt Hon. Edward Pleydell-Bouverie, M.P for Kilmarnock from 1844. Under-secretary at the home office, 1850–52; jointly vice-president of the board of trade, treasurer of the navy and paymaster-general, 1855; president of the poor law board, 1855–8. Church estates commissioner from 1859.

30 Hansard 3, cxcvi, 193 (5 May 1869). Bouverie’s contribution to the debate was probably the best informed and most acute.

31 Ibid., cols 208–12.

32 Ibid., cols 219–23.

33 Ibid., cols 228–9.

34 Ibid., cols 241–3.

35 Thomas Conolly (Co. Donegal), Hon. Col. William Stuart Knox (Dungannon), Sir Frederick Heygate (Co. Derry), Gathorne Hardy (Oxford University), A. J. Β. Beresford Hope (Cambridge University). One should perhaps add to this list Col. John Wilson Patten (Lancashire North), a former conservative Irish chief secretary who, although with critical notes, took a not dissimilar line.

36 Hansard 3, cxcvi, 202–8 (5 May 1869).

37 Ibid., cols 229–31. Nicholas Daniel Murphy, a solicitor, had been M.P. for Cork city since 1865.

38 John Bagwell, M.P. for Clonmel from 1857. Lord of the treasury, 1859–61 ; deputy-lieutenant for Go. Tipperary.

39 Hansard 3, cxcvi, 192–3 (5 May 1869).

40 The London press comments were reviewed in Saunders News Letter, 7 May 1869.

41 Cork Examiner, 6, 7, 8 May 1869.

42 Saunders News Letter, 6, 8 May, 1869.

43 The Times, 10 May 1869.

44 Ibid.

45 Saunders News Letter, 8, 9 May 1869. See also The Times, 8 May 1869.

46 Saunders News Letter, 10 May 1869.

47 Daniel O’Donoghue, M.P. for Co. Tipperary, 1857–65; for Tralee from 1865.

48 Dublin Express, 10 May 1869.

49 The Times, 12 May 1869; Hansard 3, cxcvi, 573–4 (11 May 1869).

50 For this debate, see Hansard 3, cxcvi, 575–84.

51 Ibid., col. 576.

52 Hansard 3, cxcvi, 576–7 The resignation was received by the clerk on 12 May (The Times, 13 May 1869).

53 It would appear that O’Sullivan resigned on the evening of 8 May but revoked his resignation next day, and that the cabinet was aware of both occurrences, for on 10 May Gladstone wrote to earl de Grey : ‘I think we may state if questioned that, as we had been given to understand the Mayor of Cork had on Sat. evening placed his resignation in the hands of one or more gentlemen in London with authority to act for him but that this act was yesterday virtually revoked & that no intimation of a practical character had reached the gov’t since the introduction of the bill’ (Gladstone papers, B.M., Add. MS 44536, p. 312/186).

54 The O’Sullivan disability bill was withdrawn without debate on 8 June (Hansard 3, cxcvi, 1401).

55 Saunders News Letter, 17, 18 May 1869.

56 Ibid., 24 May 1869. See also The Times, 22 May 1869.

57 The Times, 25 May 1869.

58 Irishman, 15 May 1869.