Lecture Nine Wednesday 6th April

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The Ascendancy and the Penal Laws

In this lecture we will be looking at the Protestant Ascendancy and the enactment of the Penal Laws.

The political collapse of the Catholics, their crushing military defeat, the further confiscation of their lands and the departure abroad of both potential leaders and soldiers appeared to have resolved once and for all the struggle for power within Ireland.

For the future the Irish parliament would be a protestant parliament for a protestant people, and the protestants of Ireland would constitute (as Swift put it) ‘the whole people of Ireland’.

Before proceeding it would be apposite to trace the emergence of what is known to history as the Protestant Ascendancy. Their rise can be traced through various phases as follows.

Journey to Protestant Ascendancy

(pre 1640) Although Protestants held the majority of civil positions and power in Ireland, it  was been shared with Catholics. There was no division among the Protestant planters (known then as the New English) but  who were to later become known in 1650s as the ‘Ancient Protestants’ to distinguish themselves from the Cromwellians.

(1640s) The war in Ireland  led to Catholics been ousted from all political power in Ireland. The Protestant settlers became polarised into Royalists and Parliamentarians and fought a civil war over these issues. They were, therefore, divided over these issues.

(1650s) A new group of Cromwellian Protestant settlers were introduced into Ireland. Some of the ‘Ancient Protestants’(Royalists),  as the pre 1640 Protestant settlers became known, were initially excluded from political power in Ireland. Towards the end of the decade this group reunited and called for the Restoration of monarchy.

(1660s and 1670s)  Protestants held a monopoly of  political and economic power in Ireland. Whereas the majority of these were ‘Ancient Protestants’, some of the more moderate Cromwellian settlers joined them as a political group.

Their main aims during this period was to maintain the land settlement and political hegemony over Irish Catholics.

(1680s) For the last few years of his reign, Charles II ruled without a parliament so he was able to relax policies against the Catholics. When he died in 1685 the Protestant Settlers in Ireland were in danger of loosing their ascendancy position. The Glorious Revolution prevented this from occurring and ensured that Protestants in Ireland supported King William against the Jacobites.

(1690s early 1700s) Once the Jacobites had been defeated the Protestant Settlers in Ireland adopted a series of measures  (Penal Laws, further confiscation of Catholic Lands) to put their ascendancy on a more secure footing that it had been during the restoration.

There were two main threats to the emerging of the Protestant Ascendancy either of which, if sucessfull would have ensured that no Ascendancy would emerge. These threats were;

(1) The Restoration of the King in 1660 which brought a threat in the Restoration Land Settlement.

(2) The Restoration of Catholicism under James II which not only threatened the Ascendancy's landed interests, but also, for a time ousted them from most political, military and legal offices.

The Specific threats can be summarised as follows:

Threats faced by the Protestant Ascendancy in 1660 and in 1685

(a) Military        (1685) Commissioned officers and enlisted men in the army were displaced and replaced by Catholics.

                         (1660) No Catholics were admitted to the army so Protestants held the monopoly of these positions.

(b) Judicial      (1685) All of the main judicial positions, including the attorney general positions were given to Catholics.

                        (1660) Catholics were excluded from all judicial and legal positions.

(c) Political      (1685) Catholic sheriffs were appointed.

                        (1660) Only Protestants held these positions (Catholics were excluded).

                        (1685) The charters of boroughs and corporate towns were called in and new ones were issued which effectively gave Catholics the majority                         which they then could use to ensure that the people they elected to represent the Borough or Corporation in Parliament would be Catholic.

                        (1660) All such charters were designed in such a way as to exclude Catholics from becoming members of the corporation. Therefore only                         Protestants could hold these positions and vote Protestants into parliament.

(d) Land          (1685) There was an ever present threat that the land settlement was going to be overthrown. Protestants were initially to loose half of the land                         they had been granted which land was going to be given over to Old English Catholics. The Jacobite parliament that met in Dublin in May 1689                         wanted to deprive them of all their land. The Glorious Revolution in England and the Williamite victory halted these proceedings and saved                         Protestant land.

                        (1660) In the restoration period  the lands of some Protestants were taken back to make enough available to be restored to Catholics.                         However, Protestants did come out of the period holding 67% of the land.

Reaction to the threats

After the Restoration of the King in 1660 the Protestants united in an interest group and went to great lengths and at great expense to maintain representatives at court who bribed or otherwise cajoled themselves into the favour of the courtiers with influence.

After the restoration of Catholicism in 1680s the reaction of the ascendancy was to cement their positions even further by enacting a series of penal laws which had the intention of taking away the dangers of Irish Catholicism by expelling priests, and by making it difficult to hold land if a Catholic –making it attractive to convert to Protestantism.

Protestant confidence grew after the defeat of the Jacobites.

However, there was also some anxieties among Irish Protestants;

(1)   They were far from happy with the lenient terms offered to Catholics in the Treaty of Limerick and the Treaty of Galway.

(2)   As long as the Stewart pretender continued to be accorded recognition by the Papacy it presented a threat to the Protestant position in Ireland.

(3)   They were conscious that they were in a minority in Ireland.

Protestants were aware that while providence had sent them deliverance (and a deliverer) this could be no guarantee for the future

They had to find a way to best conduct themselves with Irish Catholics, with Presbyterian dissenters, with the English government and with the Irish Parliament. It was their attempts to do this that were the motivating forces the moulded the so called Protestant Ascendancy.

These were questions of baffling complexities and was to the fore in the first 60 years of the eighteenth century as one by one the foundations of protestant confidence were whittled away.

The foundations of this protestant confidence were based on the following;

(1)   The Penal Laws;

(2)   Protestant Union (or a perceived union);

(3)   The effectiveness of the Irish Parliament been responsive to their needs;

(4)   English goodwill towards Irish Protestants.

One by one however these were whittled away for one reason or another and this resulted in the emergence in 1760 of something called the Catholic question.

Penal Laws.

It is clear that whatever there original purpose might have been that they did not lead to the elimination of Catholicism, nor did they bring about the mass conversion of Catholics, nor did it keep Catholics poor

Periodically there were drives to enforce the Penal laws (usually associated with war with one of the continental powers); there were also drives to mount a missionary campaign in the Irish language. There was always inducements to conform but by 1730, Irish Protestants were content to see that the Penal Laws remained on the statute books but they were little used to transform the religious geography of Ireland.

This loss of interest in the Penal Laws as an instrument for religious engineering held serious implications for the future. Protestants were beginning to accept that they would continue to constitute a minority no matter what they did. Some even wanted to protect their minority status as it brought many benefits with it as well. There were undoubted social and economic advantages to this status.

But minority status also had its political dangers. By the 1730s protestants may well have written off the threat of popery but their central dilemma, however, remained unresolved. As Archbishop King put it; ‘How will the protestants secure themselves or England secure Ireland when all the commonalty are papists’.

What were the Penal Laws

They were a rigorous legal code that sought to emasculate the rights of Catholics in relation to their land and to the practice of their religion or social standing within eighteenth-century Irish society. There were similar laws in force in England and in some of the continental countries but Ireland was unique in that the penal legislation was directed against the majority of the population whereas in the other countries the legislation was directed against minorities,

The motivation behind the Penal laws is plain. There is retaliation for wrongs suffered in the past and there is an attempt to secure the avoidance of any repetition of these wrongs in the future. Contemporary judicial understanding proceeded along such lines. Sir Richard Cox, one of the chief justices in Ireland held that;

To many of them (the Papists) think we are incorrigible rebels and have no title to our lands nor mush to our goods, and consequently if they had the opportunity would think it meritious to deprive us of both.

Cox went on at length to describe why the Penal Laws were necessary at the time;

He made many references to the ‘woeful experience of our ancestors in the barbarous and bloody rebellion of 1641’ and to the act of attainder passed by James II’s sham Irish parliament of 1689 that had been aimed even at women and children even at ‘some who had never been in the kingdom’.

Whereas Cox was writing in the early 18^th century, another judge was to write in the late 18^th century in relation to the reasons for the penal laws.

If we consider the situation of this kingdom at that time the intention of the legislature will appear pretty clearly to be, to prevent papists acquiring any more landed property that what the statute allows them. The act of 1704 was made by many of those persons who had suffered so severely during the short reign of James II, and by the disturbances which afterwards followed, and who do not seem to want resentment for the injuries they suffered, nor a desire to free their posterity from the like inconveniences, by lessening the popish interest in this kingdom.

The Penal laws then can be seen as both revenge for past wrongs done to Irish Protestants and as a means to ensure that Catholics were never in a position to commit these wrongs ever again.

They can be divided into three separate groups.

(1) Those affecting Catholic Ecclesiastics.

(2) Those affecting a Catholics right to their property.

(3) Other  penal laws.

(1) Those affecting Catholic Ecclesiastics

In 1697 an Act was passed in the Irish Parliament entitled ‘An Act for banishing all Papists exercising any ecclesiastical jurisdiction, and all regulars of the popish clergy out of the kingdom’. It decreed as follows;

All popish archbishops, bishops, vicars general, deans, Jesuits, monks, friars and all other regular popish clergy and all Papists exercising ecclesiastical jurisdiction, shall depart out of this kingdom before the 1^st of May 1698. If any of the said ecclesiastical persons shall be at any time after the said 1^st of May within the kingdom, they and every of them shall suffer imprisonment, until he or they shall be transported beyond the seas; and if any person so transported shall return again to this kingdom, they and every of them shall be guilty of high treason, and suffer forfeit as in case of high treason (i.e. death).

The position of the catholic clergy in Ireland at the passing of this banishment act was already very weakened as most of the hierarchy  had gone into exile with James II.

This act did not affect the diocesan clergy as they were allowed to remain in the country to minister to their flocks but they were required to register with the government. This registration act gave them recognised legal status to say mass, administer the sacraments and carry out the duties and functions of a parish priest.

It was the governments intention not to appear to banish all priests from Ireland, as some of William’s allies on the continent were Catholics and would have frowned upon this. The government in Ireland therefore had the notion that if they ban all the bishops and regulars only allowing the regular clergy to remain, that they would eventually die off. And as no bishop should be found in Ireland to ordain new priests that Catholicism, without its leadership would soon die off.

(2) Those affecting a Catholic’s right to land.

Catholic landholding was the major target of the penal laws because, as was described by a contemporary;

The possession of land and social and political power were so closely intertwined that the obvious way of weakening Catholicism was to prevent the amount of land in Catholic ownership increasing and offering the catholic landowner the choice between conformity and the fragmentation of this estate.

The penal code in relation to Catholic landholding is located in two acts; An act to prevent the further growth of popery (1704) and an act for explaining and amending an act entitled an act to prevent the further growth of popery (1709). The second act was required because many Catholics discovered and took advantage of loopholes in the first act. This second act closed all these loopholes.

The 1704 act provided an inducement for the eldest son of catholic landowners to conform to the established church after which he could have the land passed to him, after he had provided for any of his siblings and where the father became merely a life tenant on the estate after which time the Protestant son would have the land conferred on him and his protestant heirs forever.

The 1704 act also provided that any Catholic who took property by device, descent, inheritance or gift had to conform to the established church within 6 months or else the land would be taken off them and passed to the closest protestant relative that could be found..

The second act of 1709 closed many legal loopholes in the first act. It also provided for what became known as discovers –protestants, usually lawyers,  who went about trying to discover that Catholic land transactions had taken place outside of the popery acts in relation to land. The rewards for these discovers were many and usually included that they got to keep the land. Needless to say there were many cases of discovery not all of which were genuine. Catholics, for their part, attempted to thwart this by having a friendly protestant pretend to be a discoverer and who took the landholder through legal proceedings which lasted a long time. While this was going on, of course, no other genuine discoverer could attack the landowner.

These particular acts led to a lot of Catholics conforming to the Protestant religion. So much so that it was brought up many times in parliament that there was a lot of ‘pretended conformity’ going on where Catholics only converted on the surface to thwart the tenets of the various penal codes.

The methods by which one had to confirm were sometimes complex. It began in a church of Ireland church were the person willing to conform had to make a required declaration and to renounce the church of Rome, after which the protestant minister advised the local Protestant bishop who then gave out a certificate. This certificate had to be filed in the court of chancery in Dublin. For the following six months the person had to attend protestant services and take communion in the protestant faith. After this period they were given a second certificate which again had to be filed in the court of chancery. Once this second certificate was filed the process of conversion was completed.  The following table shows the number of converts who filed certificates in Chancery between the years 1703 and 1800.

There is still much controversy over the nature and extent of this conformity during the 18^th century. Catholic historians generally identify conformity as something undertaken, not out of religious principle, bur from material considerations.

(3) Other  penal laws.

No catholic could be a guardian to a child under 21 years of age under a penalty of £500; rather the guardianship was to be vested in some near Protestant relative or other Protestant properly conformed.

No Catholic could take property within corporations unless they first took an oath.

No catholic was to vote in elections unless they first took an oath.

Marriage with Protestants was forbidden; education abroad was banned, the number of religious holidays was greatly restricted.

Conclusions on Penal Laws.

The Penal Laws in their own imperfect way had been some sort of answer but the failure to accompany them with any kind of sustained missionary endeavours meant that the laws themselves soon fell into disrepute.

From the 1730s onwards the Penal Laws became little more than an intolerable system of petty oppression to Catholics and a source of profound disquiet to protestants.

In the parliaments of 1695 and 1697 a considerable volume of legislation was introduced which (together with additional acts of Anne’s reign) constituted what has been seen as a systematic code aimed against Catholicism.

The most severe legislation came in the 1697 parliament  with the Act banishing bishops and regulars, whose intention was effectively to end Catholicism in the country by preventing further ordinations within Ireland and by preventing people who had been ordained abroad from entering Ireland. The reason for this was that William’s Catholic allies on the continent initially held some sway over his decisions but by 1697 the war on the continent was virtually over so William did not need these allies further.

Further extensive legislation came in Anne’s reign in 1704. The so called  Omnibus act for preventing the further growth of popery was passed which affected the security of property by the inducement held out to sons to obtain sole possession of the family estates by converting to Protestantism. This act also forbade Catholics to acquire lands by purchase; and imposed an oath of abjuration against both the Pope and the Line of James II (the pretender to the throne).

A separate act required that all priests in Ireland had to register with the authorities and Catholics could be required testify under oath as to when they last attended mass, who celebrated it, and who was present.

Who was behind these pieces of legislation?

The motivation for the penal laws came directly from the Irish Protestants rather than from the English (later British) governments. The colonists were determined to put it beyond the capacity of Catholics ever again to be in a position to challenge the hegemony of the ascendancy in Ireland.

Also and unfortunately for Irish Catholicism, the loyalty of the Irish church hierarchy to James II, manifested by the presence of several bishops at the exiled court, along with James’s continued exercising of his right to nominate Catholic bishops to Irish Sees, put the church’s role in Ireland in question.

It was arguably this relationship between the Stuarts and the Irish hierarchy outside Ireland rather than overt Jacobitism within Ireland that represented the perceived threat from Irish Catholicism.

It must be said that had the Ascendancy coupled the penal laws with a deliberate missionary effort to actively convert Catholics then it is highly likely that by the end of the 18^th century Ireland might well have been a Protestant country.

The Ascendancy for their part, because they were members of a very privileged elite, did not want to see the mass conversion of Catholics to the Protestant religion because this would mean that they would have to share their privileged positions with all of these new converts.

Protestant Union (by this is meant the coming together of Anglicans and Presbyterians in Ireland and also the question of Ireland entering into the Union with Britain as Wales and Scotland were)

If security was not to be had from the Penal Laws, neither was it to be found in protestant union, especially that united front between Presbyterians and Anglicans that had characterised their resistance to the Jacobite threat.

With the removal of the Catholic threat the old rivalry between the church and the Kirk soon reared its ugly head mainly because Anglican churchmen refused to consider Presbyterians as partners in victory and soon enacted moves to re-affirm the exclusion of Presbyterians from  public life.

This was brought about as a direct consequence of the large influx of Presbyterians from Scotland which gave rise to the rumour that what was intended was a Presbyterian revolution to establish that religion in place of Anglicanism in Ireland. (This had already occurred in Scotland).

In 1704 a Sacramental Test was imposed on all crown and municipal office holders and this had the affect of excluding Presbyterians from these positions. This remained in force until 1780 when it was finally repealed.

A lot should be said of the arrogance of the Anglicans who assumed that should the Catholics ever rise again that the Presbyterians would forget past differences and unite with Protestants against their historical enemy (Irish Catholicism). How wrong they were, especially in light of the 1798 rebellion where Presbyterians actually united with Catholics with the intention of forming a United Ireland.

18^th century Presbyterianism was a dynamic rather than a static creed and Anglicans were wrong to assume that Presbyterianism would always be the enemy of Catholicism.

Protestantism in Ireland was now legally divided and in the Irish context this could prove very dangerous. As lord lieutenant Wharton was to explain to parliament in 1709; ‘nothing will secure you against popery whilst you continue divided among yourselves’. He unsuccessfully got them to repeal the sacramental test.

A divided Protestantism in Ireland also offered the possibility of a choice of ally for the British government. They could and did play one side off against the other to further governmental policies.

Whereas division within protestant ranks in Ireland might have been expected the same cannot be said for the Anglo-Irish conflict that was periodically to emerge in the 18^th century – specifically disputes between the Irish Parliament and the British Government.

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