Penal laws (Ireland)

"Penal Laws" redirects here. For For penal law as understood in the English law system see Penal law, see Penal Laws (disambiguation).

The Penal Laws in Ireland (Irish: Na Péindlíthe) refers to a series of laws imposed under British rule that removed power from the native Roman Catholic majority.

Background

English attempts to govern Ireland had long been marked by the passing of various acts to secure its rule: in 1367, the Statutes of Kilkenny sought to prevent the Old English from any further adoption of Gaelic culture, and Poynings Law of 1494 made the Irish parliament subservient to the English one. These were approved of by the Holy See. But the English Reformation in 1533-38 under Henry VIII brought a new religious division to the relationship between Ireland and England, though he also persecuted Protestants from 1539 to 1547. In 1541 he legislated for the new Kingdom of Ireland. His son Edward VI (reigned 1547-53) was fully Protestant but his policy was only published just before his death. Queen Mary then reimposed orthodox Catholicism in 1553-58, while settling the new 'King's' and Queen's' counties in the midlands. During her reign it was agreed under the Treaty of Augsburg in 1555 that Europeans should follow their rulers' faiths (in Latin, 'Cuius regio, eius religio'). She married the future King Philip II of Spain.

Elizabeth's excommunication

The confused matter of religious loyalties in England and Ireland continued in the first years of Queen Elizabeth I (reigned 1558-1603). However, after 12 years the Papacy excommunicated her as a heretic, on the publication on 25 February 1570 of Pope Pius V’s Bull Regnans in Excelsis. This declared Elizabeth to be illegitimate and a usurper, and thus incapable of having legitimately inherited her crown. It also declared her deposed and strictly forbade all Catholics anywhere to obey her or her laws or to acknowledge, respect or obey any persons in authority appointed by her. Naturally this caused ill-feeling between her and observant Irish Catholics, who were obliged to obey the Pope. Decades of wars and tensions followed until her death in 1603. Her principal opponent, Philip II of Spain, encouraged Catholic rebellions in Ireland in the 1570s-80s and was offered the kingship of Ireland by some important Gaelic chieftains in 1595, which he refused. Whenever they sought support in Europe, it was a hindrance that the important Irish Catholic families, whether of Gaelic or Old English descent, had never supplied Rome with a Pope or a Cardinal.

A number of real or imagined plots, from the Ridolfi plot of 1570 to the Gunpowder plot of 1605 failed to kill Elizabeth and her successor James I. Supported to a greater or lesser extent by the Papacy, they caused an atmosphere of official paranoia about the loyalty of Catholics as a group, in England as well as Ireland.

In Ireland, new laws were put into force from the late 1500s that coincided with a determined effort to bring all of Ireland under English government and culture for the first time (see Tudor re-conquest of Ireland). The colonisation of parts of the island into the 1600s in the Plantations of Ireland included anti-Catholic legislation that had a pronounced effect over two centuries, ultimately disenfranchising in 1728 the richer part of the majority of the Irish population, who remained Roman Catholic, and most Scottish settlers, who were Presbyterian, in favour of the members of the much smaller official Church of Ireland. Though the laws affected adherents of the Presbyterian Church in Ireland (who were concentrated in Ulster), their principal victims were the wealthier, landed members of the Roman Catholic Church, whose co-religionists comprised over three quarters of the people on the island. There was no law forbidding Catholics from converting to the state religion, but relatively few chose to do so. Little attempt was made to convert the poor.

Stuart and Cromwellian rule

Initially, English monarchs were cautious about applying the Penal Laws to Ireland because they needed the support of the Roman Catholic upper classes to put down the Gaelic Irish rebellion in the Nine Years War (1594-1603). In addition, a significant section of the Roman Catholic aristocracy was Old English who had traditionally been loyal to English rule in Ireland. However, the ascent of James I to the English and Irish thrones in 1603 and eventual victory in the Nine Years War saw a series of laws put into force. In 1605 the 'Gunpowder Plot' was planned by a tiny group of English Catholics, as they considered James I to be a heretic also, and this provided a further justification for laws restricting all Catholics in Ireland, Scotland and England. In 1607 the Flight of the Earls seeking Catholic help in Europe for a revolt led to the wholesale Plantation of Ulster.

From 1607, Catholics were barred from holding public office or serving in the army. This meant that the Irish Privy Council and the Lords Justice - who, along with the Lord Deputy of Ireland constituted the government of the country, would in future be Protestants. In 1613, the constituencies of the Irish House of Commons were altered to give Protestant settlers a majority. In addition, Roman Catholics had to pay 'recusant fines' for non-attendance at Protestant services. Roman Catholic churches were transferred to the Protestant Church of Ireland. Roman Catholic services, however, were generally tacitly tolerated as long as they were conducted in private. Roman Catholic priests were also tolerated, but bishops (who were usually trained in Roman Catholic Europe) had to conceal their presence in the country. In 1634 the issue of the "Graces" arose; generous taxation for Charles I (whose Queen Henrietta Maria was Catholic) was voted by Irish Catholic landlords on the understanding the laws would be reformed, but once the tax was voted Charles' viceroy refused two of the 51 Graces, and subsequent bills were blocked by the Catholic majority in the Irish House of Lords.

Catholic resentment was a factor in starting the Irish Rebellion of 1641 and the establishment of Confederate Ireland from 1642 with Papal support, that was eventually put down in the Cromwellian conquest of Ireland in 1649-53. After the Act of Settlement in 1652, Catholics were barred from membership in the Irish Parliament, the richer of them had most of their lands confiscated under the Adventurers Act, and were technically banned from living in towns for a short period. To the Cromwellians, all Catholics were, in turn, heretics. Catholic clergy were expelled from the country and were liable to instant execution when found. Many had to attend their devotions at Mass rocks in the countryside. Seventeen Catholic martyrs from this period were beatified in 1992.

1660-1693

Much of this legislation was rescinded after the English Restoration by Charles II (1660-1685), under the "Declaration of Breda" in 1660, in terms of worship and property-owning, but also the first Test Act became law from 1673. Louis XIV of France increased Protestant paranoia in Europe when he expelled the Huguenots from France in 1685. Following the flight from England to Ireland by James II caused by the English "Glorious Revolution" in 1688, the decisions of the Catholic-majority Patriot Parliament of 1688-89 in Dublin included a complete repeal of the 1650s land settlements. These were reversed after the largely Roman Catholic Jacobites that sided with King James then lost the Williamite war in Ireland in 1689-91. His opponents William and Mary were grandchildren of King Charles I, and so the war ultimately decided whether Catholic or Protestant Stuarts would reign.

The war ended with the Treaty of Limerick agreed by Sarsfield and Ginkel in October 1691.[1] This provided in article 1 that:

The Roman Catholics of this kingdom shall enjoy such privileges in the exercise of their religion as are consistent with the laws of Ireland, or as they did enjoy in the reign of king Charles the second: and their majesties, as soon as their affairs will permit them to summon a parliament in this kingdom, will endeavour to procure the said Roman Catholics such farther security in that particular, as may preserve them from any disturbance upon the account of their said religion.

However, these privileges had to be earned by swearing an oath of loyalty to William and Mary, which most Catholics found repugnant from 1693 when the Papacy started supporting the Jacobites. A small number of Catholic landlords had sworn this loyalty oath in 1691-93 and their families remained protected, but most did not. Previous Jacobite garrison surrenders, particularly the agreement at Galway earlier in 1691, specifically provided that the Catholic gentry of counties Galway and Mayo were protected from the property restrictions in the 1700s, though they would be excluded from direct involvement in politics.

Articles 2 and 9 required that:

2. .... provided also, that no person whatsoever shall have or enjoy the benefit of this article, that shall neglect or refuse to take the oath of allegiance, made by act of parliament in England, in the first year of the reign of their present majesties, when thereunto required.

9. The oath to be administered to such Roman Catholics as submit to their majesties' government, shall be the oath abovesaid and no other.

At the European level, this war was a part of the War of the Grand Alliance, in which the Papacy supported William III's alliance against France, and on the news of the Battle of the Boyne a Te Deum was sung in thanksgiving at the Vatican. But from 1693 the Papacy changed its policy and supported James against William, and William's policy also moved from a degree of toleration for Roman Catholics to greater hostility. By then, King James was based in France at Saint Germain, and was supported politically and financially by Louis XIV, the long-standing enemy of William and Mary. Religion became an easy way to define a notable family's loyalty to the crown, and so formed the political basis for the ensuing Penal Laws in Ireland.

Ascendancy rule 1691-1778

With the defeat of Catholic attempts to regain power and lands in Ireland, what became known later as the "Protestant Ascendancy" sought to insure dominance with the passing of a number of laws to restrict the religious, political and economic activities of Catholics and Dissenters. Harsher laws were introduced for political reasons during the long War of the Spanish Succession that ended in 1714. The son of James II, the "Old Pretender", was recognised by the Holy See as the legitimate king of Britain and Ireland until his death in 1766, and Catholics were obliged to support him. He also approved the appointments of all the Irish Catholic hierarchy, who were drawn from his most fervent supporters. These aspects provided the political excuses for the new laws passed for several decades after 1695. Among the discriminations now faced by Catholics and Dissenters under the Penal Laws were:

• Exclusion of Catholics from most public offices (since 1607), Presbyterians were also barred from public office from 1707.
• Ban on intermarriage with Protestants; repealed 1778
• Presbyterian marriages were not legally recognised by the state
• Catholics barred from holding firearms or serving in the armed forces (rescinded by Militia Act of 1793)
• Bar from membership in either the Parliament of Ireland or the Parliament of Great Britain from 1652; rescinded 1662-1691; renewed 1691-1829.
• Disenfranchising Act 1728, exclusion from voting until 1793;
• Exclusion from the legal professions and the judiciary; repealed (respectively) 1793 and 1829.
• Education Act 1695 - ban on foreign education; repealed 1782.
• Bar to Catholics entering Trinity College Dublin; repealed 1793.
• On a death by a Catholic, his legatee could benefit by conversion to the Church of Ireland;
• Popery Act - Catholic inheritances of land were to be equally subdivided between all an owner's sons with the exception that if the eldest son and heir converted to Protestantism that he would become the one and only tenant of estate and portions for other children not to exceed one third of the estate. This "Gavelkind" system had previously been abolished by 1600.
• Ban on converting from Protestantism to Roman Catholicism on pain of Praemunire: forfeiting all property estates and legacy to the monarch of the time and remaining in prison at the monarch's pleasure. In addition, forfeiting the monarch's protection. No injury however atrocious could have any action brought against it or any reparation for such.
• Ban on Catholics buying land under a lease of more than 31 years; repealed 1778.
• Ban on custody of orphans being granted to Catholics on pain of 500 pounds that was to be donated to the Blue Coat hospital in Dublin.
• Ban on Catholics inheriting Protestant land
• Prohibition on Catholics owning a horse valued at over £5 (in order to keep horses suitable for military activity out of the majority's hands)
• Roman Catholic lay priests had to register to preach under the Registration Act 1704, but seminary priests and Bishops were not able to do so until 1778
• When allowed, new Catholic churches were to be built from wood, not stone, and away from main roads.
• 'No person of the popish religion shall publicly or in private houses teach school, or instruct youth in learning within this realm' upon pain of twenty pounds fine and three months in prison for every such offence. Repealed in 1782. [2]
• Any and all rewards not paid by the crown for alerting authorities of offences to be levied upon the Catholic populace within parish and county.

Historians disagree on how rigorously these laws were enforced. The consensus is that enforcement depended on the attitudes of local magistrates bringing or hearing particular cases; some of whom were rigorous, others more liberal.

Analysis

The Penal laws were ostensibly passed to displace Catholicism as the majority religion in Ireland, and although the Book of Common Prayer was first translated into Irish in 1608 there was no real desire to convert the majority population to Anglicanism or to proselytise in Irish until the 19th century. The lack of effort by the Protestant Ascendancy to actively convert the bulk of the population to Anglicanism, suggests an economic rationale; a greater number of poor Protestants would mean a loss of income as they would have to be supported from the local church tithes which were the source of income for most clergymen.

The main intended effect of the Penal Laws was to ease the conversion or dispossession of the landed Catholic population. In 1641 Catholics had owned 60% of land in Ireland and by 1776 Catholic land ownership in Ireland stood at only 5%. In the 1735 census some 30% of Irish declared that they were not Catholics, and it may have appeared that eventually most or all would conform, but in hindsight this was the Protestants' highest point. Conversion from Roman Catholicism to Protestantism occurred sporadically, especially among the gentry usually from material considerations converting to keep the family lands intact, the sincerity of such conversions often open to question. Many sons of the Catholic gentry left for Europe to join the Wild Geese, or were educated for the church at seminaries such as in Louvain. Others with money engaged in trade as they could not buy land to rent out. For them the problem was limited opportunity through exclusion from many professions; medicine being a rare exception. They were excluded from voting in 1728-1793.

The vast majority of the population, being poor tenant farmers or agricultural labourers, actually lost little due to the penal laws since 1695, but since 1800 the laws have been given as a plausible reason to explain their poverty. The tithing system had the biggest impact on them, as they had to pay a percentage of a crop's value to the local Protestant clergyman, as well as the cost of supporting their local priest.

For Catholic parish priests the laws from 1695 were more restrictive, but unlike the 1650s Cromwellian administration they could register with the local magistrates and preach. Religious orders and bishops were forbidden until 1778. New churches had to be built with permission, generally away from main roads. The last priest to be executed was Nicholas Sheehy in 1766; not for preaching but for political agitation.

During the 1745 Jacobite rebellion in Scotland the viceroy Lord Chesterfield suspended the Penal laws for several months to ensure that Irish Jacobites did not join the revolt. This was a success, and emphasized that London already saw the laws as a political, and not a religious, matter. During the American revolution (1775-83) the London government wanted Catholic support to counteract the patriots, creating the climate for Nano Nagle to set up her convent in 1777.

Some large Catholic landowners such as the Earl of Antrim were untouched by the penal laws and still own their ancestral lands today. The viscounts of Gormanston held their lands in County Meath until 1950. Others of Gaelic origin such as the lords Inchiquin (descendants of Brian Boru), or the Old English lords Dunsany and viscounts Dillon, saved their lands by converting to Protestantism.

Historians disagree over whether the Penal Laws were a tool of political as opposed to religious repression. Some argue (for instance Eamonn O Ciardha) that they were intended to make Catholics in Ireland powerless and to place landed and political power in Ireland in the hands of an English Anglican settler class, being based on ownership of land. Most Irish schools affiliated to the Catholic Church have tended to emphasise the religious aspect of the Penal Laws, and to assume that they were observed to the letter. Most non-Catholic schools tend to view the laws as a political matter that failed, ran on too long and was then reformed, as with other European religious repressions (see Whig history).

The Catholic Committees

From 1758, before the death of James III, ad-hoc groups of the remaining Catholic nobility and merchants worked towards repeal of the penal laws and an accommodation within the Hanoverian system. These were based locally on county lines. An earlier attempt in 1727 had met with strong opposition from the Jacobite movement, which resisted any negotiations with the Hanoverians, being usurpers. By 1760 eminent Catholics such as Lord Trimlestown and Charles O'Conor of Belanagare persuaded the more liberal protestants that they presented no political threat, and that reforms must follow. Events abroad in the 1760s, such as the outcome of the Seven Years war, the death of the Old Pretender (1766), the emerging "Age of Enlightenment", and the Suppression of the Society of Jesus by Europe's Catholic monarchs, all seemed to confirm their position.

Gradual reform and emancipation 1778-1869

On the death of the "Old Pretender" in January 1766 the Holy See recognised the Hanoverian dynasty as legitimate, and so the main political excuse for the laws was removed and the slow process of Catholic Emancipation began, with the repeal of some of the Penal Laws by the Catholic Relief Acts of 1771, 1778 and 1793. However, the long drawn-out pace of reform ensured that the question of religious discrimination dominated Irish life and was a constant source of division. In a show of goodwill, John Carpenter, titular Archbishop of Dublin, technically still an illegal position, was invited to join the Royal Dublin Society in 1773.

An Irish Act of 1774 allowed any subject of George III "of whatever persuasion to testify their allegiance to him". The Quebec Act of 1774 was an encouragement outside Ireland, with the London parliament restoring religious rights in the main part of Canada, followed in Britain and Ireland by the Catholic Relief Act 1778. Carlow College was established in 1782.

From 1782 reformist Irish Protestant politicians like Henry Grattan, JP Curran, William Ponsonby and Frederick Hervey, 4th Earl of Bristol (a Protestant bishop), added their voices in support. In the English House of Commons Edmund Burke also helped, but was faced with anti-Catholic sentiment which exploded in the Gordon Riots of 1780.

In 1792 William FitzGerald, 2nd Duke of Leinster, the eldest brother of Lord Edward Fitzgerald, founded the 'Association of the friends of liberty' whose program sought Catholic members in the Irish House of Commons. They could not persuade most Protestant MPs to effect a bigger change than the Relief Act of 1793, where Catholics were now allowed to buy freehold land, to become grand jurors and barristers, to study at Trinity College Dublin, and to vote if they held property with a rental value of at least £2 a year (the so-called "Forty-shilling freeholders"). A majority of Irish MPs were still reluctant to reform, and the Irish 1793 Act had to be encouraged by the British government that had already passed the Roman Catholic Relief Act 1791.

Opposition to Catholic Relief ensured that when relief when granted it was often accompanied by what were seen to be unpleasant concessions to the system. Relief in 1793 was accompanied by a widely unpopular Militia Act which removed the ban on Catholics holding firearms to allow for their conscription into the militia, but not their admittance into the officer ranks. However, wealthier Catholics did not oppose this as it was further proof of their gradual inclusion into the establishment.

France declared war on Britain and Ireland in February 1793 and the war took priority over further reliefs. As the French government opposed the Holy See from 1790, and as Irish Catholic priests were often trained in France, the Prime Minister Pitt funded the establishment of St. Patrick's seminary in Maynooth in 1795. The French republican policies of "Dechristianization" in 1790-1801 were often similar to Cromwell's anti-Catholic policies in Ireland in the 1650s. In 1795 the new viceroy the earl of Fitzwilliam proposed full political emancipation as suggested by Grattan, but he was removed within weeks by the hardliners in the Irish administration.

The slow pace of reform was a factor which led to many reformers despairing of peaceful change, particularly the lack of tithe reform, and this led on in part to the failed 1798 rebellion. During the rebellion all the Irish Catholic bishops supported the government. The subsequent passing of the Act of Union of 1801 was supposed to bring Catholic Emancipation, as power was moved from the hands of the Protestant Ascendancy to the London Parliament. This was agreed by most of the British Cabinet, including William Pitt, and they resigned when it was not effected. The personal opposition of George III ensured that no change would be forthcoming during his reign.

Emancipation

The political argument for emancipation to allow Catholic MPs to sit in parliament continued after the 1801 Act of Union, supported by liberal MPs such as Henry Grattan. Division arose over the "veto", the issue whether the government could, or could not, veto the appointment of a bishop where he was approved by the Pope. In May 1823, Daniel O'Connell launched the Catholic Association and campaigned for Catholic emancipation which was largely achieved in 1829, primarily benefitting the middle classes. While this was seen as a late and overdue reform by Irish Catholics, Irish Jewish MPs were barred until 1858 and atheists until 1886.

The Act also allowed for Catholic judges and senior civil servants and state officials to be appointed. As with the election of MPs, those who benefitted were the better educated and richer Catholics. The same class took advantage of the reform of town and city corporations in the Act of 1840 and took part in local government. But for the majority of Irish Catholics living in the countryside, the cost of the tithing system had always been the main cause of complaint.

Tithe reform

The obligation by Catholics and other religious groups to pay tithes to the Protestant Church remained until its disestablishment in 1869 and Catholic Emancipation was quickly followed by a period of violent resistance known as the Tithe War. From 1840 tithes were no longer payable by tenants but by their landlords, who were allowed to increase rents to make up the difference. The Catholic Church became resurgent from the 1840s, uniting with the Protestant churches to oppose the integration of students of differing religion in the new primary or 'National' schools, and in the 1850s a debate arose over whether some proposed universities should be mixed or just for Catholics.

Continuing effect in 1920

In May 1920 Seán T. O'Kelly sent a memorandum to Pope Benedict XV which included:

The position of Irish Catholics is a cruel one. We are enslaved by a Protestant power. The penal laws against our religion are not yet abolished in full. The injurious social and economic results of these anti-Catholic laws will not be overcome for generations. To the present day we suffer political injury inside and outside of Ireland, simply and solely because we are practicing Catholics. Sons of martyrs, we are known in every Masonic lodge and every anti-Catholic country as 'Papists', and par-excellence, the most devoted of all the children of the Holy See.