Penal laws (Ireland)


In Ireland, the penal laws were a series of legal disabilities imposed in the seventeenth, and early eighteenth, centuries on the kingdom's Roman Catholic majority and, to a lesser degree, on Protestant "Dissenters". Enacted by the Irish Parliament, they secured the Protestant Ascendancy by further concentrating property and public office in the hands of those who, as communicants of the established Church of Ireland, subscribed to the Oath of Supremacy. The Oath acknowledged the British monarch as the "supreme governor" of matters both spiritual and temporal, and abjured "all foreign jurisdictions powers"—by implication both the Pope in Rome and the Stuart "Pretender" in the court of the King of France.
The laws included the Education Act 1695, the Banishment Act 1697, the Registration Act 1704, the Popery Acts 1704 and 1709, and the Disenfranchising Act 1728. Under pressure from the British government, which in its rivalry with France sought Catholic alliances abroad and Catholic loyalty at home, the laws were repealed through a series of relief acts beginning in 1771. The last significant disability, the requirement that Members of Parliament take the Oath of Supremacy, was removed in 1829, after Ireland had been incorporated by the 1800 Acts of Union into a United Kingdom with Great Britain. The Government of Ireland Act 1920 contained an all-purpose provision in Section 5 removing any remaining sacramental tests technically still in existence.

Stuart and Cromwellian rule

The penal laws were, according to Edmund Burke, "a machine of wise and elaborate contrivance, as well fitted for the oppression, impoverishment and degradation of a people, and the debasement in them of human nature itself, as ever proceeded from the perverted ingenuity of man." Burke long counselled kinder relations by London with its American and Irish cousins, fearing that the punitive spirit fostered by the British was destroying English character, and would spur violent revolt.
Initially, the dual monarchs of England and Ireland were cautious about applying penal laws to Ireland because they needed the support of the Catholic upper classes to put down the Gaelic Irish rebellion in the Nine Years War. In addition, a significant section of the Catholic aristocracy was composed of Old English, who had traditionally been loyal to English rule in Ireland. However, the ascent of James VI of Scotland to both the English and Irish thrones as James I in 1603 and the eventual victory in the Nine Years War saw a series of coercive new laws put into force. In 1605 the 'Gunpowder Plot' was planned by a group of English Catholics, who were disappointed in their hopes that James would relieve laws against Catholics. This provided a further impetus and justification for restrictive laws on Catholics in Ireland, Scotland and England. In 1607 the Flight of the Earls seeking Catholic help in Europe for a further revolt set the scene for a wholesale Plantation of Ulster by the Lowland Scots and Northern English.
From 1607, Catholics were barred from holding public office or serving in the Irish 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 Anglicans. In 1613, the constituencies of the Irish House of Commons were altered to give plantation settlers a majority. In addition, Catholics in all three Kingdoms had to pay 'recusant fines' for non-attendance at Anglican services. Catholic churches were transferred to the Anglican Church of Ireland. Catholic services, however, were generally tacitly tolerated as long as they were conducted in private. Catholic priests were also tolerated, but bishops were forced to operate clandestinely. In 1634 the issue of the "Graces" arose; generous taxation for Charles I was supported by Irish Catholic landlords on the understanding that the laws would be reformed, but once the tax was passed, 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. The Act of Settlement 1652 barred Catholics from membership of Parliament and the major landholders had most of their lands confiscated under the Adventurers' Act 1640. They were also banned from living in towns for a short period. Catholic clergy were expelled from the country and were liable to instant execution when found. Many recusants had to worship in secret at gathering places in the countryside. In 1666 forty nine Catholics from hiding places in the woods in county Roscommon signed a letter in support of the Pope and protesting the loss of their 'due liberties'. Seventeen Catholic martyrs from this period were beatified in 1992.

1660–1693

Much of this legislation was rescinded after the Restoration in Ireland by Charles II, 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, and took his policy from the hard-line Bishop Bossuet. 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 1688–9 in Dublin included a complete repeal of the 1660s 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 III and Mary II 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. 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.

The quid pro quo to attain these privileges involved swearing an oath of loyalty to William and Mary. Many Catholics found this oath repugnant when the Papacy started to support the Jacobites in 1693. A small number of Catholic landlords had sworn this loyalty oath in 1691–3 and their families remained protected. 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, though they would be excluded from direct involvement in politics.
Articles 2 and 9 required that:
At the European level, this war was a part of the War of the Grand Alliance, in which the Holy See 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 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 eventually became an issue in defining a notable family's loyalty to the crown.

Ascendancy rule 1691–1778

With the defeat of Catholic attempts to regain power and lands in Ireland, a ruling class which became known later as the Protestant Ascendancy sought to ensure dominance with the passing of a number of laws to restrict the religious, political and economic activities of Catholics and Protestant Dissenters. Harsher laws were introduced for political reasons during the long War of the Spanish Succession that ended in 1714. James Stuart, the son of James II, the "Old Pretender", was recognised by the Holy See as the legitimate King of Great 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 basis for the new laws passed for several decades after 1695. Interdicts faced by Catholics and Dissenters under the penal laws were:
  • Exclusion of Catholics from most public offices, Presbyterians were also barred from public office from 1707.
  • Ban on the Irish Language being used in court, 1737.
  • 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 1793.
  • Oath of Supremacy required for membership of the Parliament of Ireland from 1652; rescinded 1662–1691; renewed 1691–1829; also applying to the successive parliaments of England, Great Britain, and the United Kingdom of Great Britain and Ireland until the Roman Catholic Relief Act 1829.
  • Disenfranchising Act 1728, exclusion from the parliamentary franchise until the Roman Catholic Relief Act 1793;
  • Exclusion from the legal professions and the judiciary; repealed 1793 and 1829.
  • Education Act 1695 – ban on foreign education; repealed 1782.
  • Ban to Catholics and Protestant Dissenters 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 a £500 fine 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.
  • 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 a £20 fine and three months in prison for every such offence. Repealed in 1782.
  • 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 view is that enforcement depended on the attitudes of local magistrates bringing or hearing particular cases; some of whom were rigorous, others more liberal.
As a continuing reminder of their defeat in the Williamite War, the Whig historian Lord Macaulay suggested that the Penal-Law regime helps account for the failure of Irish Roman Catholics to heed the Jacobite call when the Scottish army of the Young Pretender marched on London in 1745. Their submission was the effect of "the habit of daily enduring insult and oppression" and of a "brokenness of heart". The systematic discrimination and exclusion from favour kept their "natural chiefs" abroad.
There were indeed Irish Roman Catholics of great ability, energy and ambition; but they were to be found every where except in Ireland, at Versailles and at Saint Ilfonso, in the armies of Frederic and Maria Theresa,. One in exile became a Marshal of France. Another became Prime Minister of Spain. If he had staid in his native land, he would have been regarded as inferior by all the ignorant and worthless squireens who had signed the Declaration against Transubstantiation.