HISTORY OF THE CATHOLIC CHURCH From The Renaissance To The French Revolution Volume II CHAPTER XI THE PENAL LAWS

Burke, /The Irish Priests in the Penal Times (1660-1760)/, 1914 (a valuable book, based on the State Papers preserved in the Record Office, the Bodleian Library and the British Museum). Curry, /An Historical and Critical Review of the Civil Wars in Ireland from the Reign of Queen Elizabeth to the Settlement of King William III./, 2 vols., 1786. Klopp, /Der Fall des Hauses Stuart u.s.w./, 14 Bde., 1875-88. Madden, /Historical Notice of the Penal Laws against Roman Catholics/, 1865. Lecky, /History of Ireland in the Eighteenth Century/, 5 vols. (new imp., 1913). Parnell, /History of the Penal Laws/, 1808. Id., /An Historical Apology for the Irish Catholics/, 1807. /Works and Correspondence of Edmund Burke/, 8 vols., 1851. Butler, /Historical Memoirs of English, Irish, and Scotch Catholics/, 4 vols., 1819. Scully, /The Penal Laws/, 1812. Murray, /Revolutionary Ireland and its Settlement/, 1911.

When the Irish leaders entered into correspondence with General Ginkle they were by no means reduced to the last extremity. The situation of the besiegers was rendered difficult by the approach of winter, and there was a danger that the city might be relieved at any moment by the appearance of a French fleet in the Shannon. Hence to avoid the risks attendant on the prolongation of the siege and to set free his troops for service on the Continent, where their presence was required so urgently, General Ginkle was willing to make many concessions. Before the battle of Aughrim William had offered to grant the Catholics the free exercise of their religion, half the churches in the kingdom, and the moiety of the ecclesiastical revenues.[1] But the position of both parties had changed considerably since then, and Sarsfield and his companions could hardly expect so favourable terms. They insisted, however, on toleration, and though the first clause of the treaty dealing expressly with that subject was drafted badly, they certainly expected they had secured it. In addition to the military articles the Peace of Limerick contained thirteen articles, the most important of which were the first, and the ninth. By these it was provided that the Catholics should enjoy such privileges in the exercise of their religion as is consistent with the laws of Ireland, and as they did enjoy in the reign of Charles II.; that their Majesties as soon as their affairs should permit them to summon a Parliament would endeavour to procure for Irish Catholics "such further security in that particular as may preserve them from any disturbance upon account of their religion;" and that the oath to be administered to Catholics should be the simple oath of allegiance to William and Mary. "Those who signed it [the Treaty]," writes Lecky, "undertook that the Catholics of Ireland should not be in a worse position, in respect to the exercise of their religion, than they had been in during the reign of Charles II., and they also undertook that the influence of the government should be promptly exerted to obtain such an amelioration of their condition as would secure them from the possibility of disturbance. Construed in its plain and natural sense, interpreted as every treaty should be by men of honour, the Treaty of Limerick amounted to no less than this."[2] The Treaty was ratified by the sovereigns in April 1692, and its contents were communicated to William's Catholic ally, the Emperor Leopold I. (1657-1705) as a proof that the campaign in Ireland was not a campaign directed against the Catholic religion.

The king was, therefore, pledged to carry out the agreement, and by means of the royal veto and the control exercised by the English privy council he could have done so notwithstanding the bigoted fanaticism of the Protestant minority in Ireland. Nor can it be said that the conduct of the Irish Catholics afforded any pretext for denying them the rights to which they were entitled. Once their military leaders and the best of their soldiers had passed into the service of France there was little danger of a Catholic rebellion, and during the years between 1692 and 1760, even at times when the Jacobite forces created serious troubles in Scotland and England, the historian will search in vain for any evidence of an Irish conspiracy in favour of the exiled Stuarts. The penal laws were due solely to the desire of the Protestant minority to wreak a terrible vengeance on their Catholic countrymen, to get possession of their estates, to drive them out of public life, by excluding them from the learned professions and from all civil and military offices, to reduce them to a condition of permanent inferiority by depriving them of all means of education at home and abroad, to uproot their religion by banishing the bishops and clergy, both regular and secular, and in a word to reduce them to the same position as the native population of the English plantations in the West Indies.

For some years, however, after the overthrow of the Irish forces, it was deemed imprudent by the king and his advisers to give the Irish Protestants a free hand. Louis XIV. was a dangerous opponent, and till the issue of the great European contest was decided it was necessary to move with caution at home. Besides, Leopold I., William's faithful ally, could not afford, even from the point of view of politics, to look on as a disinterested spectator at a terrible persecution of his own co-religionists in Ireland. But once the fall of Namur (1695) had made it clear that Louis XIV. was not destined to become the dictator of Europe, and above all once the Peace of Ryswick (1697) had set William free from a very embarrassing alliance, the Protestant officials in Ireland were allowed a free hand. Parliament was convoked to meet in 1692. The Earl of Sydney was sent over as Lord Lieutenant, and in accordance with the terms of the Treaty of Limerick Parliament should have confirmed the articles. But men like Dopping, the Protestant Bishop of Meath, took care to inflame passion and bigotry by declaring that no faith should be kept with heretics, and when Parliament met it was in no mood to make any concessions. The few Catholic members who presented themselves were called upon to subscribe a Declaration against Transubstantiation prescribed by the English Parliament, but which had no binding force in Ireland. Having in this way excluded all Catholics from Parliament, an exclusion which lasted from 1692 till the days of the Union, the Houses passed a bill recognising the new sovereigns, and another for encouraging foreign Protestants to settle in Ireland,[3] but they refused absolutely to confirm the Treaty of Limerick. After Parliament had been prorogued the privy council endeavoured to induce the Earl of Sydney to issue a proclamation ordering the bishops and clergy to depart from the kingdom, but under pretence of consulting the authorities in England he succeeded in eluding the would-be-persecutors, who were obliged to content themselves with indirect methods of striking at the priests, until Sydney was recalled, and until Lord Capel, a man after their own heart, arrived as Lord Lieutenant in 1695.

In August of that year Parliament met once more. In his opening speech the Lord Lieutenant struck a note likely to win the approval of his audience. "My Lords and Gentlemen," he said, "I must inform you that the Lords Justices of England have, with great application and dispatch, considered and re-transmitted all the bills sent to them; that some of these bills have more effectually provided for your future security than hath ever hitherto been done; and, in my opinion, the want of such laws has been one of the greatest causes of your past miseries; and it will be your fault, as well as misfortune, if you neglect to lay hold of the opportunity, now put into your hands by your great and gracious king, of making such a lasting settlement, that it may never more be in the power of your enemies to bring the like calamities again upon you, or to put England to that vast expense of blood and treasure it hath so often been at for securing this kingdom to the crown of England."[4] The measures taken to secure the Protestant settlement will repay study. It was enacted that no parent should send his children beyond seas for education under penalty, both for the sender and the person sent, of being disqualified "to sue, bring, or prosecute any action, bill, plaint, or information in course of law, or to prosecute any suit in a court of equity, or to be guardian or executor, or administrator to any person, or capable of any legacy, or deed of gift, or to bear any office within the realm." In addition such persons were to be deprived of all their property, both real and personal. Any magistrate, who suspected that a child had been sent away could summon the parents or guardians and question them under oath, but failing any proof the mere absence of the child was to be taken as sufficient evidence of guilt. Popish schoolmasters in Ireland were forbidden to teach school under threat of a penalty of £20 and imprisonment for three months. But lest the Catholics might object that they had no means of education, it was enacted that every Protestant minister should open a school in his parish, and every Protestant bishop should see that a "public Latin free-school" was maintained in his diocese. Having fortified Protestantism sufficiently on one flank, the members next proceeded to forbid Papists to keep "arms, armour, or ammunition," empowered magistrates to search the houses of all suspected persons, threatened severe penalties against all offenders, forbade the reception of Popish apprentices by manufacturers of war materials, prohibited all Catholics from having in their possession a horse over the value of £5, and empowered Protestant "discoverers" of infringements of this measure to become owners of their Catholic neighbour's horse by tendering him five pounds. Lest these laws might become a dead letter it was enacted that if any judge, mayor, magistrate, or bailiff neglected to enforce them he should pay a fine of £50, half of which was to go to the informer, and besides, he should be declared incapable of holding such an office for ever. To prevent any misconception it was explained that all persons, who, when called upon, refused to make the Declaration against Transubstantiation, should be regarded as Papists.[5]

For so far, however, the opportune moment for a formal rejection of the Limerick Treaty had not arrived. But when Parliament met in 1697 it was deemed prudent to carry out the instruction of the Bishop of Meath, that no faith should be kept with Catholics. The Articles of Limerick were confirmed with most of the important clauses omitted or altered. The first clause guaranteeing toleration was deemed unfit to be mentioned in the bill. It is clear that in the House of Lords grave difficulties were urged against such a wholesale neglect of the terms of the treaty, and that it was necessary to invoke the authority of the king and of the English privy council before the measure was passed. Seven of the lay lords, and six of the Protestant bishops lodged a solemn protest against what had been done. Amongst the reasons which they assigned for their disagreement with the majority were: "(1) Because we think the title of the Bill doth not agree with the body thereof, the title being, An Act for the Confirmation of Articles made at the Surrender of Limerick, whereas no one of the said articles is therein, as we conceive, fully confirmed; (2) because the said Articles were to be confirmed in favour of them, to whom they were granted, but the confirmation of them by the Bill is such, that it puts them in a worse condition than they were before, as we conceive; . . . (4) because several words are inserted in the bill, which are not in the Articles, and others omitted, which alter both the sense and meaning, as we conceive."[6]

The way was now clear for beginning the attack upon the clergy. An Act was passed ordering "all Popish archbishops, bishops, vicars-general, deans, Jesuits, monks, friars, and all other regular Popish clergy, and all Papists exercising any ecclesiastical jurisdiction" to depart from the kingdom before the 1st May 1698, under threat for those who remained beyond the specified time, of being arrested and kept in prison till they could be transported beyond the seas. They were commanded to assemble before the 1st May at the ports of Dublin, Cork, Kinsale, Youghal, Waterford, Wexford, Galway, or Carrickfergus, register themselves at the office of the mayor, and await till provision could be made for transporting them. All such ecclesiastics were forbidden to come into the kingdom after the 29th December 1697, under pain of imprisonment for twelve months, and if any such person ventured to return after having been transported he should be adjudged guilty of high treason. If any person knowingly harboured, relieved, concealed, or entertained any popish ecclesiastic after the dates mentioned he was to forfeit £20 for the first offence, £40 for the second, and all his lands and property for the third offence, half to go (if not exceeding £100) to the informer. Justices of the peace were empowered to summon all persons charged upon oath with having aided or received ecclesiastics and to levy these fines, or to commit the accused person to the county jail till the fines should be paid. All persons whatsoever were forbidden after the 29th December 1697, to bury any deceased person "in any suppressed monastery, abbey, or convent, that is not made use of for celebrating divine service, according to the liturgy of the Church of Ireland as by law established, or within the precincts thereof, under pain of forfeiting the sum of ten pounds," which sum might be recovered off any person attending a burial in such circumstances. Justices of the peace were empowered to issue warrants for the arrest of ecclesiastics who came into Ireland, or remained there in defiance of these statutes, and were commanded to give an account of their work in this respect at the next quarter sessions held in their counties. Finally, it was provided that any justice of the peace or mayor who neglected to enforce this law should pay a fine for every such offence of £100, half of which was to be paid to the informer, and should be disqualified for serving as a justice of the peace. An Act was also passed "to prevent Protestants intermarrying with Papists." If any Protestant woman, heir to real estate or to personal estate value £500 or upwards, married a husband without having first got "a certificate in writing under the hand of the minister of the parish, bishop of the diocese, and some justice of the peace," and attested by two witnesses that her intended husband was a Protestant, the estates or property devolved immediately on the next of kin if a Protestant; and if any man married without having got a similar certificate that the lady of his choice was a Protestant he became thereby disqualified to act as a guardian or executor, to sit in the House of Commons, or to hold any civil or military office, unless he could prove that within one year he had converted his wife to the Protestant religion. Any clergyman assisting at such marriages was liable to a penalty of £20, half of which was to be paid to the informer.[7]

In order to secure that none of the bishops or regular clergy should escape, the revenue officers in the different districts were instructed to make a return of the names and abodes of all priests on the 27th July 1697. According to the digest compiled from these returns there were then in Ireland eight hundred and ninety-two secular priests and four hundred and ninety-five regulars. The houses of the regular clergy were broken up; their property was disposed of or handed over in trust to some reliable neighbour, and the priests prepared to go into exile. During the year 1698 four hundred and forty-four of them were shipped from various Irish ports, several others were arrested and thrown into prison, and a few escaped by passing as secular priests. Many of the unfortunate exiles made their way to Paris, where they were dependent upon the charity of the French people and of the Pope. Similar vigorous action was taken to secure the banishment of the bishops and vicars, in the hope that if these could be driven from the country the whole machinery of the Catholic Church in Ireland would become so disorganised that its total disappearance in a short time might be expected. Several of the bishops had been declared traitors for having supported the cause of James I., and had been obliged to flee to the Continent. Two others were shipped in accordance with the law of 1697; three were discovered by the revenue officials, of whom the Bishop of Clonfert was arrested, rescued, and died; the Bishop of Waterford made his escape after a few years of hiding, and the Bishop of Cork was arrested and transported (1703). So that there remained in Ireland only the Archbishop of Cashel and the Bishop of Dromore. News of what was taking place in Ireland was conveyed to the Emperor, who instructed his ambassador to lodge a strong protest, but the ambassador was put off with empty promises or with a bold denial of the truth of his information. Nor were these acts allowed to remain a dead letter. The revenue officials, the magistrates, sheriffs, judges, Protestant bishops, and Protestant ministers joined in the hunt for regulars, bishops, vicars, deans, etc., and generous rewards were offered to all informers.[8]

The accession of Queen Anne (1702-14) led only to a still more violent persecution. Parliament met in September 1703, and proceeded almost immediately to attack both priests and lay Catholics. Most of the bishops were dead or had been driven from the country. The regulars, it was thought, could not survive. It was determined, therefore, to attack the remaining secular clergy in two ways, first by enforcing strictly the laws against Catholic education in Ireland, and by making more severe the laws against going to colleges abroad,[9] as well as by enacting that any priest who entered Ireland after 1st January 1704 should be punished in accordance with the terms of the law laid down previously against bishops and regulars,[10] so that by these means the supply of clergy might be cut off; and second, by obliging all the priests in Ireland to register themselves so that the government could lay hold of them whenever it wished to do so. According to this latter measure all priests were commanded to give an account to the clerks of the peace of their district, of their place of abode, their parishes, together with the time and place of their ordination, and were to provide two securities of £50 for their future good behaviour; those who neglected to make this return were to be imprisoned and transported; and it was provided later on that no parish priest could have an assistant or curate.[11] To crush the Catholic laymen it was enacted that in case the eldest son became a Protestant his father could not sell, mortgage, or otherwise dispose of the family property; that no Catholic could act as guardian to orphans or minors, but that these should be handed over to the custody of some Protestant who was required to bring them up in the Protestant religion; that no Catholic could purchase any lands, tenements, or hereditaments, or any profits or rents from such possessions, or acquire leases for a term exceeding thirty-one years or inherit as nearest of kin to any Protestant; the estates of a Catholic landowner dying without a Protestant heir were to be divided equally among his sons; no person could hold any office, civil or military, without subscribing to the Declaration against Transubstantiation, and the oath of abjuration, and receiving the sacrament; no Catholics, unless under very exceptional circumstances, could be allowed to live in Galway and Limerick, and no person could vote at any election without taking the oaths of allegiance and abjuration. Sir Theobald Butler appeared at the bar of the House of Commons to plead against these measures, and to point out that as no laws of the king were in force in the days of Charles II. the proposed bill was in direct opposition to the terms of the Treaty of Limerick,[12] but his protest produced no effect in England or in Ireland.

The whole army of government officials, Protestant ministers, and spies were set to work to discover what persons had left Ireland to go abroad for education, to seize all priests found entering the country, and to take measures against those in the country who neglected to register themselves as they had been commanded to do. One hundred and eighty-nine priests were registered in Ulster, three hundred and fifty-two in Leinster, two hundred and eighty-nine in Munster, and two hundred and fifty-nine in Connaught.[13] Against the laity, too, the full penalties of the law were enforced, but yet it is satisfactory to note that in the year 1703 only four certificates of conformity were filed, sixteen in 1704, three in 1705, five in 1706, two in 1707, and seven in 1708.[14] It was clear, therefore, that if the Catholic religion was to be suppressed recourse must be had to even more extreme measures. In 1709 an act was passed ordering all priests to take the Oath of Abjuration before the 25th March 1710, unless they wished to incur all the pains and penalties levelled against the regular clergy.[15] By the Oath of Abjuration they were supposed to declare that the Pretender "hath not any right or title whatsoever to the crown of this realm or any other the dominions thereunto belonging," that they would uphold the Protestant succession, and that they made this declaration "heartily, willingly, and truly." Rewards were laid down for the encouragement of informers, £50 being allowed for discovering an archbishop, bishop, vicar, or any person exercising foreign jurisdiction, £20 for the discovery of a regular or a non- registered secular priest, and £10 for the discovery of a Popish schoolmaster. To facilitate the arrest of the clergy it was provided that any two justices of the peace might summon Catholics before them and interrogate them under oath when and where they heard Mass last, what priest officiated, and who were present at the ceremony. Failure to give the required information about Mass, priests, or school- masters was to be punished by imprisonment for twelve months or until the guilty person paid a fine of £20. A pension of £20 a year, increased afterwards to £40, was provided for those priests who left the Catholic Church.[16] As regards lay Catholics further measures were taken to encourage the children of Catholic parents to become Protestant by ordaining that in such a case the Court of Chancery could interfere and dictate to the father what provision he must make for such children. Similarly wives of Catholics were encouraged to submit by the promise that the Court of Chancery would interfere to safeguard their interests. Stringent regulations were made to ensure that all pretended converts engaged in the professions and in public offices should rear their children in the Protestant faith, and to ensure that no Catholic could teach school publicly or privately or even act as usher in a Protestant school.

The priests, though not unwilling to take a simple oath of allegiance, refused as a body to take the Oath of Abjuration, and immediately they became liable to all the punishments directed against the bishops and regulars. Wholesale arrests took place over the country; spies were employed to track them down; the men who had gone security for their good behaviour in 1704 were commanded to bring them in under threat of having the recognisances estreated; judges were ordered to make inquiries at the assizes; and Catholics were called upon to discover on their clergy by giving information about the priests who celebrated Mass. The search was carried on even more vigorously in Munster and Connaught than in Ulster and Leinster, so that during the remainder of the reign of Queen Anne no priest in any part of Ireland could officiate publicly with safety.[17] Petitions were drawn up and forwarded to all the Catholic sovereigns of Europe, asking them to intercede for their co-religionists in Ireland, but though many of them did instruct their representatives in London to take action, their appeals and remonstrances produced very little effect.[18] At the same time the laws in regard to Catholic property, and Catholic education were enforced with great severity, particular care being taken that only Protestants should be recognised as guardians of Catholic minors or orphans, and that the guardians should rear the children as Protestants. Against the law, the wishes or even the last testament of a dying father were of no avail.[19]

During the reign of George I. (1714-27) there was very little improvement in the condition of the Catholics of Ireland. Indeed, in regard to legal enactments their condition was rendered much worse. They were obliged to pay double the contribution of their Protestant neighbours for the support of the militia; their horses could be seized for the use of the militia; they were prevented from acting as petty constables or from having any voice in determining the amount to be levied off them for the building and repairing of Protestant churches or for the maintenance of Protestant worship. In 1719 a new and more violent measure was passed by the House of Commons, according to one of the clauses of which all unregistered priests caught in Ireland were to be branded with a red-hot iron upon the cheek. The Irish privy council changed this penalty into mutilation, but when the bill was sent to England for approval the original clause was restored. For purely technical reasons the bill never became law.[20] In 1742 another bill was introduced and passed by both Houses in Dublin by which all unregistered priests who did not depart out of Ireland before March 1724 were to be punished as guilty of high treason unless they consented to take the Oath of Abjuration; a similar punishment was decreed against bishops, vicars, deans, and monks without allowing them any alternative; all persons adjudged guilty of receiving or affording assistance to priests were to be put to death as felons "without benefit of clergy;" Popish schoolmasters and tutors were to undergo a like punishment, and to ensure that the law would be enforced ample rewards were given to all informers. But when the bill was sent to England it failed to receive the sanction of the king and privy council, and was therefore allowed to lapse.[21]

The results of these laws made to secure the extirpation of the Catholic religion were to be seen in 1731 when a systematic inquiry was conducted by the Protestant ministers and bishops into the condition of the Catholics in every single parish in Ireland. In Armagh there were only twenty-five "Mass-houses," some of them being mere cabins; in Meath there were one hundred and eight; in Clogher only nine although in addition it was reported that there were forty- six altars where the people heard Mass in the open air; in Raphoe one "old Mass-house," one recently erected, "one cabin, and two sheds;" in Derry there were nine Mass-houses, all "mean, inconsiderable buildings," but Mass was said in most parts of the diocese in open fields, or under some shed set up occasionally for shelter; in Dromore there were two Mass-houses, and "two old forts were Masses are constantly said;" and in Down there were five Mass-houses, but in addition the priests celebrated "in private houses or on the mountains." In the diocese of Dublin it was reported that the number of Mass-houses amounted to fifty-eight, sixteen of which were situated within the city; in Ferns there were thirty-one together with eleven "moveable altars in the fields;" in Leighlin, twenty-eight, besides three altars in the fields and three private chapels, and in Ossory their were thirty-two "old Mass-houses" and eighteen built since the reign of George I. In Cashel there were forty "Mass-houses," and it was noted particularly that one was being built at Tipperary, "in the form of a cross, ninety-two feet by seventy-two;" in Cloyne there were seventy Mass-houses. In Tuam the Protestant archbishop reported that there were Mass-houses in most parishes; in Elphin it was reckoned that there were forty-seven "Mass-houses," a few of them being huts; in Killala there were four, in Achonry thirteen, in Clonfert forty, and in Kilmacduagh there were thirteen. But in a remarkable fact that in spite of all the legal penalties directed against the priests, and of all the work that was being done by the government officials, the "priest-catchers," whose profession according to the Irish House of Commons was an honourable one, and by the magistrates, and ministers, there was a very large number of secular priests still ministering to the people and also of friars, who were reported as being active in preaching to the people sometimes in private houses and sometimes in the open fields. And it is even still more remarkable that despite the vigilance of the Protestant bishops there were even then over five hundred "popish schools" in some of which the classics were taught, and there were besides several schoolmasters who moved from place to place. The Protestant Bishop of Derry announced with a considerable amount of pride that there were not any popish schools in his diocese. "Sometimes," he said, "a straggling schoolmaster sets up in some of the mountainous parts of some parishes, but upon being threatened, as they constantly are, with a warrant, or a presentment by the church- wardens, they generally think proper to withdraw."[22]

During the reign of George II. (1727-60) the persecution began to abate, though more than one new measure was added to the penal laws. Primate Boulter, who was practically speaking ruler of the country during his term of office, was alarmed at the large number of Papists still in the country--five to one was his estimate--and at the presence of close on three thousand priests, and suggested new schemes for the overthrow of Popery. The Catholics were deprived of their votes at parliamentary or municipal elections lest Protestant members might be inclined to curry favour with them by opposing the penal code; barristers, clerks, attornies, solicitors, etc., were not to be admitted to practice unless they had taken the oaths and declarations which no Catholic could take; converts to Protestantism were to be treated similarly unless they could produce reliable evidence that they had lived as Protestants for two years, and that they were rearing their children as Protestants. Very severe laws had been laid down already against marriages between Catholics and Protestants, but as such marriages still took place, it was declared that the priest who celebrated such marriages was to be reputed guilty of felony, that after the 1st May 1746 all marriages between Catholics and persons who had been Protestants within the twelve months preceding the marriage, should be null and void, as should also all marriages between Protestants if celebrated in the presence of a priest. Later on the death penalty was decreed against priests who assisted at such unions.[23] Finally, through the exertions of Primate Boulter and Bishop Marsh, the Charter Schools were established. They were intended, as was explained in the prospectus, "to rescue the souls of thousands of poor children from the dangers of Popish superstition and idolatry, and their bodies from the miseries of idleness and beggary." The schools were entirely Protestant in management, and the children were reared as Protestants. Once a Catholic parent surrendered his children he could never claim them again. In 1745 the Irish Parliament appropriated the fees derived from the licences required by all hawkers and pedlars to the support of the Charter Schools, and it is computed that between the years 1745 and 1767 these same institutions received about £112,000 from the public funds.[24] Though emancipation was still a long way off, yet after 1760 it began to be recognised that the penal code had failed to achieve the object for which it had been designed.