Penal Laws

The penal laws may be described as the corpus of legislation that created and maintained the confessionalism of the early modern Irish state. As such, they include legislation against Protestant dissent as well as anti-Catholic legislation. They also include all the legislation of the sixteenth and seventeenth centuries that formed the Anglican establishment and undermined Catholic economic and political power by land confiscation. However, late-eighteenth-century Catholic activists were anxious to assure Protestants that they sought to overthrow neither the religious establishment nor the existing distribution of property. They thus complained only of such anti-Catholic measures as were enacted in the period after the extension to Ireland of the successful Dutch invasion of Britain in 1688. This gave a more limited and still generally accepted meaning to the term penal laws.

The elements of the penal code have parallels in the contemporary bodies of law enacted against religious dissenters elsewhere in Europe. However, the rise of democratic and nationalist sentiment in the nineteenth century rendered the Irish legislation, in retrospect, particularly objectionable. Democratic thought held the nation to be constituted by its population, and because the penal laws had affected the greater part of that population, they came to be regarded as among the most notable of the Irish nation's historical grievances. Sectarian social and political divisions also ensured that the "penal era" did not lose its importance in popular historiography. Historians of the late twentieth century, in contrast, have worked hard to place the condition of eighteenth-century Catholics in a more favorable light.

Insecurity was the dominant feature of the new British regime established in the wake of the Dutch invasion. Many Anglicans feared that with the establishment of Presbyterianism in Scotland, the terrible events of mid-century were beginning to repeat themselves. Irish Presbyterians consequently found themselves excluded from much of public life and subject to irksome legal restrictions, though their situation was improved in the reign of George I. As always, however, fear of popery was much greater and was intensified by the real threat of a restoration by force of the deposed James II or, from 1701, his son—known to his foreign allies and domestic supporters as James III. For some seventy years after the usurpation of 1688, the Glorious Revolution, as its partisans named the event, was by no means irreversible. The anti-Catholic legislation of the late Stuart and early Hanoverian period may be attributed simply to the fear that this engendered. Legislation enacted in 1695 answered the immediate need to disarm potential insurgents. The assault on Catholic landownership, most notably in the Popery Act of 1704, was intended to ensure, in a society in which the right to power was often held to depend on property, that no Catholic party would ever again exist. Legislation directly aimed at the Catholic Church, such as the Bishops' Banishment Act of 1697, is similarly explained by the desire to defend an insecure regime. The perception of Catholicism as primarily a political conspiracy was deeply embedded in the British Protestant mind. Equally, however, the measures that were not ostensibly concerned with the church itself might be justly seen as having a primarily religious motivation. In an age in which religion was by no means a matter for the individual, particularly in the lower ranks of society, it was assumed that the now exclusively Protestant character of the elite would determine the religion of those outside it. This view received support from the proponents of the early Enlightenment who held naive beliefs about what might be expected of education.

In reality, there was little religious change in the population at large. The established church was incapable of a sustained campaign of proselytism, while the Catholic clergy restored a restricted but effective pastoral presence in the country within decades. The poverty of the lowest ranks of society gave them immunity against the penal code's threats and bribes, and their linguistic and cultural separation from the Protestant elites served as further protection, if one was needed. However, among those who, their Catholicism aside, had claims or aspirations to be included in the elite, a degree of religious change was affected. The stick of the imposition of a humiliating status, involving exclusion from public office or the more desirable professions, and the carrot of economic advantage were recognized by the Catholic community as sufficiently persuasive to prevent great opprobrium falling on those who chose conversion. For those who remained Catholic, there were difficulties, but by no means were all paths to increased prosperity and influence in society barred. A Catholic economic environment, with varying degrees of self-sufficiency, was constructed and extended to the European mainland. Trade was attractive because land, in the early eighteenth century, was not a particularly good investment, quite apart from the restrictions on Catholic ownership of it. Still, short leases of up to thirty-one years were perfectly legal and often economically advantageous. Moreover, restrictions on more permanent forms of possession could be circumvented.

With the British victory in the Seven Years' War the threat to the ruling dynasty was gone. The alienation of the Catholic population in the British Isles was not merely needless, but politically and militarily foolish. Thus, toward the end of the 1770s, the dismantling of the penal code began. Yet in breaking Catholic power in Ireland, it had served the later Stuarts and the Hanoverians well. Unlike Scotland, Ireland never at any time after 1691 became the base for assaults on the regime established by William III. The penal code's importance lies also in its enduring effects on Irish society. The importance of religious affiliation in the distribution of privilege in the Irish ancien régime did much to produce a very extended elite, eventually held by many to encompass the whole Protestant community—the "plebeian oligarchy," which Edmund Burke attacked. Its enduring strength as an oligarchy, together with its fears of Catholicism and the secularizing British state, played a major role in forming the sectarian politics of the nineteenth century and beyond.

Penal Laws

Bibliography