Penal legislation affecting Catholics in English-speaking countries since the Reformation
Penal Laws. —This article treats of penal legislation affecting Catholics in English-speaking countries since the Reformation. Separate heads are devoted to the penal laws: I. In England; II. In Scotland; III. In Ireland; IV. In the American Colonies.
I. IN ENGLAND
—By a series of statutes, successive sovereigns and Parliaments from Elizabeth to George III, sought to prevent the practice of the Catholic Faith in England. To the sanguinary laws passed by Elizabeth further measures, sometimes inflicting new disqualifications and penalties, sometimes reiterating previous enactments, were added, until this persecuting legislation made its effects felt in every department of human life. Catholics lost not only freedom of worship, but civil rights as well; their estates, property, and sometimes even lives were at the mercy of any informer. The fact that these laws were passed as political occasion demanded deprived them of any coherence or consistency; nor was any codification ever attempted, so that the task of summing up this long and complicated course of legislation is a difficult one. In his historical account of the penal laws, published at the time when partial relief had only just been granted (see bibliography at end of this section), the eminent lawyer, Charles Butler, the first Catholic to be called to the Bar after the Catholic Relief Act of 1791, and the first to be appointed King’s Counsel after the Catholic Emancipation Act, thought it best to group these laws under five heads: (I) Those which subjected Catholics to penalties and punishments for practising their religious worship; (2) those which punished them for not conforming to the Established Church (Statutes of Recusancy); (3) those regulating the penalties or disabilities attending the refusal to take the Oath of Supremacy (1559; 1605; 1689), the declarations against Transubstantiation (Test Act, 1673) and against Popery (1678); (4) the act passed with respect to receiving the sacrament of the Lord’s Supper; (5) statutes affecting landed property. For the present purpose, however, it seems preferable to adopt a chronological arrangement, which more clearly exhibits the historical development of the code and the state of the law at any particular period.
The Penal Laws began with the two Statutes of Supremacy and Uniformity by which Queen Elizabeth, in 1559, initiated her religious settlement; and her legislation falls into three divisions corresponding to three definitely marked periods: (I) 1558-70, when the Government trusted to the policy of enforcing conformity by fines and deprivations; (2) 1570-80, from the date of the queen’s excommunication to the time when the Government recognized the Catholic reaction due to the seminary priests and Jesuits; (3) from 1580 to the end of the reign. To the first period belong the Acts of Supremacy and Uniformity (I Eliz. 1 and 2) and the amending statute (5 Eliz. c. 1). By the Act of Supremacy all who maintained the spiritual or ecclesiastical authority of any foreign prelate were to forfeit all goods and chattels, both real and personal, and all benefices for the first offense, or in case the value of these was below £20, to be imprisoned for one year; they were liable to the forfeitures of Praemunire for the second offense, and to the penalties of high treason for the third offense. These penalties of Praemunire were: exclusion from the sovereign’s protection, forfeiture of all lands and goods, arrest to answer to the sovereign and Council. The penalties assigned for high treason were drawing, hanging, and quartering; corruption of blood, by which heirs became incapable of inheriting honors and offices, and, lastly, forfeiture of all property. These first statutes were made stricter by the amending act (5 Eliz. c. 1), which declared that to maintain the authority of the pope in any way was punishable by penalties of Praemunire for the first offense and of high treason, though without corruption of blood, for the second. All who refused the Oath of Supremacy were subjected to the like penalties. The Act of Uniformity, primarily designed to secure outward conformity in the use of the Anglican Book of Common Prayer, was in effect a penal statute, as it punished all clerics who used any other service by deprivation and imprisonment, and everyone who refused to attend the Anglican service by a fine of twelve pence for each omission. It should be remembered that the amount of these fines must be multiplied by ten or more to give their modern equivalent.
Coming to the legislation of the second period, there are two acts directed against the Bull of Excommunication: 13 Eliz. c. 1, which, among other enactments, made it high treason to affirm that the queen ought not to enjoy the Crown, or to declare her to be a heretic or schismatic, and 13 Eliz. c. 2, which made it high treason to put into effect any papal Bull of absolution, to absolve or reconcile any person to the Catholic Church, or to be so absolved or reconciled, or to procure or publish any papal Bull or writing whatsoever. The penalties of Praemunire were enacted against all who brought into England or who gave to others Agnus Dei or articles blessed by the pope or by anyone through faculties from him. A third act, 13 Eliz. c. 3, which was designed to stop Catholics from taking refuge abroad, declared that any subject departing the realm without the queen’s licence, and not returning within six months, should forfeit the profits of his lands during life and all his goods and chattels. The third and most severe group of statutes begins with the “Act to retain the Queen’s Majesty’s subjects in their obedience” (23 Eliz. c. 1), passed in 1581. This made it high treason to reconcile anyone or to be reconciled to “the Romish religion”, prohibited Mass under penalty of a fine of two hundred marks and imprisonment for one year for the celebrant, and a fine of one hundred marks and the same imprisonment for those who heard the Mass. This act also increased the penalty for not attending the Anglican service to the sum of twenty pounds a month, or imprisonment till the fine be paid, or till the offender went to the Protestant Church. A further penalty of ten pounds a month was inflicted on anyone keeping a schoolmaster who did not attend the Protestant service. The schoolmaster himself was to be imprisoned for one year.
The climax of Elizabeth‘s persecution was reached in 1585 by the “Act against Jesuits, Seminary priests and other such like disobedient persons” (27 Eliz. c. 2). This statute, under which most of the English martyrs suffered, made it high treason for any Jesuit or any seminary priest to be in England at all, and felony for any one to harbor or relieve them. The penalties of Praemunire were imposed on all who sent assistance to the seminaries abroad, and a fine of £ 100 for each offense on those who sent their children overseas without the royal license.
So far as priests were concerned, the effect of all this legislation may be summed up as follows: For any priest ordained before the accession of Elizabeth it was high treason after 1563 to maintain the authority of the pope for the second time, or to refuse the oath of supremacy for the second time; after 1571, to receive or use any Bull or form of reconciliation; after 1581, to absolve or reconcile anyone to the Church or to be absolved or reconciled. For seminary priests it was high treason to be in England at all after 1585. Under this statute, over 150 Catholics died on the scaffold between 1581 and 1603, exclusive of Elizabeth‘s earlier victims.
The last of Elizabeth‘s laws was the “Act for the better discovery of wicked and seditious persons terming themselves Catholics, but being rebellious and traitorous subjects” (35 Eliz. c. 2). Its effect was to prohibit all recusants from removing more than five miles from their place of abode, and to order all persons suspected of being Jesuits or seminary priests, and not answering satisfactorily, to be imprisoned till they did so.
The hopes of the Catholics on the accession of James I were soon dispelled, and during his reign (1603-25) five very oppressive measures were added to the statute-book. In the first year of his reign there was passed the “Act for the due execution of the statutes against Jesuits, seminary priests, etc” (I Jac. I, iv), by which all Elizabeth‘s statutes were confirmed with additional aggravations. Thus persons going beyond seas to any Jesuit seminary were rendered incapable of purchasing or retaining any lands or goods in England; the penalty of £100 on everyone sending a child or ward out of the realm, which had been enacted only for Elizabeth‘s reign, was now made perpetual; and Catholic schoolmasters not holding a licence from the Anglican bishop of the diocese were fined forty shillings a day, as were their employers. One slight relief was obtained in the exemption of one-third of the estate of a convicted recusant from liabilities to penalties; but against this must be set the provision that retained the remaining two-thirds after the owner’s death till all his previous fines had been paid. Even then these two-thirds were only to be restored to the heir provided he was not himself a recusant.
The carefully arranged “discovery” of the Gun-powder Plot in 1605 was followed by two statutes of particularly savage character. These were “An Act for the better discovering and repressing of Popish Recusants” (3 Jac. I, iv) and “An Act to prevent and avoid dangers which may grow by Popish Recusants” (3 Jac. I, v). The first of these two wicked laws enacted that all convicted recusants should communicate once a year in the Anglican church under penalties of £20 for the first omission, £40 for the second, and £60 for the third. Moreover the king was to be allowed to refuse the penalty of £20 per month for non-attendance at the Anglican church, and to take in its place all the personal property and two-thirds of the real property of the offender. But the main point of this Act was the new Oath of Allegiance which it prescribed, and which was subsequently condemned by the Holy See. Yet all who refused it were to be subjected to the penalties of Praemunire, except married women, who were to be imprisoned in the common jail. Finally, every householder of whatever religion was liable to a fine of £10 a month for each guest or servant who failed to attend the Anglican church.
The second Act was even worse, and the Catholic historian Tierney justly says of it that it “exceeded in cruelty all that had hitherto been devised for the oppression of the devoted Catholics”. It prohibited recusants from remaining within ten miles of the city of London, a provision which it was impossible to carry out; or to remove more than five miles from their usual place of residence till they had obtained licence from four magistrates and the bishop of the diocese or lieutenant of the county. They were disabled from practising as lawyers, physicians, apothecaries; from holding office in any court or corporation; from holding commissions in the army or navy, or any office of emolument under the State; from discharging the duties of executors, administrators, or guardians. Any married woman who had not received the sacrament in the Anglican church for a year before her husband’s death forfeited two-thirds of her dower, two-thirds of her jointure, and was debarred from acting as executrix to her husband or claiming any part of his goods. Husbands and wives, if married otherwise than by a Protestant minister in a Protestant church, were each deprived of all interest in the lands or property of the other. They were fined £100 for omitting to have each of their childern baptized by the Protestant minister within a month of birth. All Catholics going or being sent beyond the seas without a special licence from king or Privy Council were incapable of benefitting by gift, descent, or devise, till they returned and took the oath of allegiance; and in the meantime the property was to be held by the nearest Protestant heir. And, lastly, every convicted recusant was excommunicated from the Established Church, with the result that they were debarred from maintaining or defending any personal action or suit in the civil courts. Their houses were liable to be searched at any time, their arms and ammunition to be seized, and any books or furniture which were deemed superstitious to be destroyed.
The two remaining statutes of James I were “An Act to cause persons to be naturalized or restored in blood to conform and take the oath of allegiance and supremacy” (7 Jac. I, ii) and “An Act for the reformation of married recusant women, and administration of the oath of allegiance to all civil, military, ecclesiastical and professional persons” (7 Jac. I, vi). The chief effect of this latter act was to cause the oath to be offered to all persons over eighteen, and to empower the committal to prison of any recusant married woman, unless her husband paid £10 a month for her liberty.
During the reign of Charles I the only penal statute was a short “Act to restrain the passing or sending of any to be Popishly bred beyond the Seas” (3 Car. I, iii), which reenacted the provisions in 3 Jac. I, c. 5, adding that offenders should be disabled from prosecuting any civil actions in law or equity; from acting as guardian, executor, or administrator; receiving any legacy or deed of gift, or bearing any office within the realm. Moreover, such offender was to forfeit all his lands and personal property.
After the Restoration in 1660 an attempt was made by Charles II, not unmindful of the sacrifices Catholics had made in the Stuart cause, to obtain a repeal of the Penal Laws, and a committee of the House of Lords was appointed to examine and report on the question. The matter, however, was allowed to drop; and in the following year both Houses of Parliament joined in petitioning the king to issue a proclamation against the Catholics. Further efforts on the part of the king came to nothing, and matters remained on the same footing till the latter part of his reign, when new statutes of a harassing nature were passed. With the exception of the Corporation Act (13 Car. II, St. 2, c. 1), which was not aimed against Catholics directly, but which provided that no person could hold any municipal office without taking the Oaths of Allegiance and Supremacy and receiving the sacrament in the Protestant church, no new measures were introduced till 1673, when Parliament passed the Test Act (25 Car. II, ii). This required all officers, civil and military, to take the same oaths and to make the Declaration against Transubstantiation. Five years later another Act was passed (30 Car. II, St. 2), which excluded all Catholics from sitting or voting in Parliament, by requiring every member of either House to take the two oaths and to make the blasphemous Declaration against Popery. From this statute, which was entitled “An Act for the more effectual preserving the King’s person and government, by disabling Papists from sitting in either House of Parliament”, a special exception was made in favor of the Duke of York, afterwards James II.
With the Revolution of 1688 began a new era of persecution. The “Act for further preventing the growth of Popery” (11 & 12 Gul. III, 4), passed in 1699, introduced a fresh hardship into the lives of the clergy by offering a reward of £100 for the apprehension of any priest, with the result that Catholics were placed at the mercy of common informers who harassed them for the sake of gain, even when the Government would have left them in peace. It was further enacted that any bishop or priest exercising episcopal or sacerdotal functions, or any Catholic keeping a school, should be imprisoned for life; that any Catholic over eighteen not taking the Oaths of Supremacy and Allegiance, or making the Declaration against Popery, should be incapable of inheriting or purchasing any lands; and any lands devised to a Catholic who refused to take the oaths should pass to the next of kin who happened to be a Protestant. A reward of £100 was also offered for the conviction of any Catholic sending children to be educated abroad. The cruel operation of this Act, which made itself felt throughout the ensuing century, was extended by a measure passed under Queen Anne (12 Anne, St. 2, c. 14), though Catholics were not generally molested during her reign.
The last penal statutes to be enacted were those of George I. By I Geo., I, St. 2, c. 13, the Hanoverian Succession Oaths were to be taken by all Catholics to whom they were tendered, under penalty of all the forfeitures to which “popish recusant convicts” were liable. The Stuart rising of 1715 was followed by another Act (I Geo., I, St. 2, c. 50) appointing commissioners to inquire into the estates of popish recusants with a view to confiscating two-thirds of each estate. The scope of “An Act to oblige Papists to register their names and real estates” (I Geo., I, St. 2, c. 55) is sufficiently indicated by its title. It added to the expense of all transactions in land, the more galling as Catholics were doubly taxed under the annual land-tax acts. (See also 4 Geo., III, c. 60.) In 1722 was passed “An Act for granting an aid to his Majesty by levying a Tax upon Papists” (9 Geo., I, 18), by which the sum of one hundred thousand pounds was wrung from the impoverished Catholics. Throughout the reign of George II (1727-60) there were no further additions to the penal code and under his successor, George III (1760-1820), the work of repeal was begun.
Even this lengthy enumeration is not absolutely exhaustive, and the Acts here cited contain many minor enactments of a vexatious nature. The task of repeal was a long, slow, gradual, and complicated one, the chief measures of relief being three: The First Catholic Relief Act of 1778, which enabled Catholics to inherit and purchase land and repealed the Act of William III, rewarding the conviction of priests (see Burton, “Life and Times of Bishop Challoner”, ch. xxxi); the second Catholic Relief Act of 1791, which relieved all Catholics who took the oath therein prescribed from the operation of the Penal Code (see Ward, “Dawn of the Catholic Revival”, viii, xiv-xvi); and the Catholic Emancipation Act of 1829. The only disqualifications against Catholics which appear to be still in force are those which prohibit the sovereign from being or marrying a Catholic, or any Catholic subject from holding the offices of Lord Chancellor, or Lord Lieutenant of Ireland.
II. IN SCOTLAND
—The first penal statutes were enacted by the Scottish Parliament of 1560, which, on August 14, passed three statutes; the first abolishing the jurisdiction of the pope, the second repealing all former statutes in favor of the Catholic Church, the third providing that all who said or heard Mass should be punished for the first offense by the confiscation of their goods and by corporal penalties, for the second by banishment from Scotland, for the third by death. A temporary relaxation of these laws was due to Mary Queen of Scots, and a statute was even passed in 1567 giving liberty to every Scotsman to live according to his own religion; but shortly after the Queen’s marriage with Bothwell a proclamation was extorted from her on May 23, 1567, by which severe penalties were renewed against all who refused to conform to Protestantism. After Mary’s deposition the Parliament of 1568 passed further acts ratifying the establishment of Protestantism, and prohibiting the exercise of any other ecclesiastical jurisdiction. Lennox’s Parliament (1571) decreed the apprehension of all persons possessing papal Bulls or dispensations or gifts and provisions of benefices.
The persecution carried on under these statutes by the Privy Council and by the General Assembly was very severe. The Privy Council issued several proclamations during the next half-century enforcing the penal statutes, forbidding the harboring of Catholic priests, ordering parents to withdraw their children from Catholic colleges abroad, and rendering husbands liable for the acts of their wives done in support of the Catholic cause. A commission issued in July, 1629, ordered that, should persecuted Catholics take refuge in fortified places, the commissioners should “follow, hunt and pursue them with fire and sword”. Though in Scotland there were fewer martyrdoms than in England or Ireland, yet the persecution fell even more heavily on the rank and file of Catholics, and in some respects they suffered outrages not paralleled in England, such as the simultaneous expulsion of all Catholics from their homes which was ordered and carried out in 1629-30. But there were times of comparative tranquility when the rigor of the law was not enforced.
At the close of the seventeenth century fresh statutes were passed. In May, 1700, an Act of Parliament offered a reward of five hundred merks for the conviction of any priest or Jesuit; the same statute disabled Catholics from inheriting property or educating their children. After the Act of Union, in 1707, the Penal Laws were still enforced. In addition to the provisions already recorded and other sufferings which they shared with English Catholics, there were galling restrictions peculiar to Scotland. The purchase or dissemination of Catholic books was forbidden under pain of banishment and forfeiture of personal property. They could not be governors, school-masters, guardians or factors, and any one who employed them as such was fined a thousand merks. They were fined five hundred merks for teaching “any art, science or exercise of any sort”. Any Protestant who became a Catholic forfeited his whole hereditable estate to the nearest Protestant heir.
The first repeal of the Penal Code was effected by the Act for the relief of Scottish Catholics, which received the royal assent in May, 1793, and practically complete liberty was granted to them under the provisions of the Catholic Emancipation Act of 1829.
III. IN IRELAND
—Although the penal laws of Ireland were passed by a Protestant Parliament and aimed at depriving Catholics of their faith, such laws were not the outcome of religious motives only. They often came from a desire to possess the lands of the Irish, from impatience at their long resistance, from the contempt of a ruling for a subject race. (See Ireland. The Anglo-Normans.) When Henry V III broke with Rome sectarian rancour came to embitter racial differences. The English Parliament passed the Act of Supremacy, making Henry head of the Church; but the Irish Parliament was less compliant, and did not pass the bill till the legislative powers of the representatives of the clergy had been taken away. And though the Act of Supremacy (1536) was accepted by so many Irish chiefs, they were not followed by the clergy or people in their apostasy. The suppression of monasteries followed, entailing the loss of so much property and even of many lives. Yet little progress was made with the new doctrines either in Henry’s reign or in that of his successor, and Mary’s restoration of the Faith led the Protestant Elizabeth to again resort to penal laws. In 1559 the Irish Parliament passed both the Act of Supremacy and the Act of Uniformity, the former prescribing to all officers the Oath of Supremacy, the latter prohibiting the Mass and commanding the public use of the Book of Common Prayer. Whoever refused the Oath of Supremacy was dismissed from office, and whoever refused to attend the Protestant service was fined 12 pence for each offense. A subsequent viceregal proclamation ordered all priests to leave Dublin and prohibited the use of images, candles, and beads. For some time these Acts and proclamations were not rigorously enforced; but after 1570, when Elizabeth was excommunicated by the pope, toleration ceased; and the hunting down of the Earl of Desmond, the desolation of Munster, the torturing of O’Hurley and others, showed how merciless the queen and her ministers could be. Elizabeth disliked Parliaments and had but two in her reign in Ireland. She governed by proclamation, as did her successor James, and it was under a proclamation (1611) that the blood of O’Devany, Bishop of Down, was shed. In the next reign there were periods of toleration followed by the false promises of Strafford and the attempted spoliation of Connaught, until at last the Catholics took up arms.
Cromwell disliked Parliaments as much as Elizabeth or James, and when he had extinguished the Rebellion of 1641, he abolished the Irish Parliament, giving Ireland a small representation at Westminster. It was by Acts of this Westminster Parliament that the Cromwellian settlement was carried out, and that so many Catholics were outlawed. As for ecclesiastics, no mercy was shown them under Cromwellian rule. They were ordered to leave Ireland, and put to death if they refused, or deported to the Arran Isles or to Barbadoes, and those who sheltered them at home were liable to the penalty of death. To such an extent was the persecution carried that the Catholic churches were soon in ruins, a thousand priests were driven into exile, and not a single bishop remained in Ireland but the old and helpless Bishop of Kilmore. With the accession of Charles II the Irish Catholics looked for a restoration of lands and liberties; but the hopes raised by the Act of Settlement (1663) were finally dissipated by the Act of Explanation (1665), and the Catholics, plundered by the Cromwellians, were denied even the justice of a trial. The English Parliament at the same time prohibited the importation into England of Irish cattle, sheep, or pigs. The king favored toleration of Catholicity, but was overruled by the bigotry of the Parliament in England and of the viceroy, Ormond, in Ireland and if the reign of Charles saw some toleration, it also saw the judicial murder of Venerable Oliver Plunkett and a proclamation by Ormond, in 1678, ordering that all priests should leave the country, and that all Catholic churches and convents should be closed.
The triumph of the Catholics under James II was short-lived. But even when William of Orange had triumphed, toleration of Catholicity was expected. For the Treaty of Limerick (1691) gave the Catholics “such privileges as they enjoyed in the reign of Charles II”; and William was to obtain from the Irish Parliament a further relaxation of the penal laws in existence. The treaty was soon broken. The English Parliament, presuming to legislate for Ireland, enacted that no one should sit in the Irish Parliament without taking the Oath of Supremacy and subscribing to a declaration against Transubstantiation; and the Irish Parliament, filled with slaves and bigots, accepted this legislation. Catholics were thus excluded; and in spite of the declared wishes of King William, the Irish Parliament not only refused to relax the Penal Laws in existence but embarked on fresh penal legislation. Session after session, for nearly fifty years, new and more galling fetters were forged, until at last the Penal Code was complete, and well merited the description of Burke: “as well fitted for the oppression, impoverishment and degradation of a feeble people and the debasement in them of human nature itself as ever proceeded from the perverted ingenuity of man”. All bishops, deans, vicars-general, and friars were to leave the country and if they returned, to be put to death. Secular priests at home could remain if they were registered; in 1709, however, they were required to take an oath of abjuration which no priest could conscientiously take, so that registration ceased to be a protection. They could not set up schools at home nor resort to Catholic schools abroad, nor could they receive legacies for Catholic charities, nor have on their churches steeple, cross, or bell.
The laity were no better off than the clergy in the matter of civil rights. They could not set up Catholic schools, nor teach in such, nor go abroad to Catholic schools. They were excluded from Parliament, from the corporations, from the army and navy, from the legal profession, and from all civil offices. They could not act as sheriffs, or under sheriffs, or as jurors, or even as constables. They could not have more than two Catholic apprentices in their trade; they could not carry arms, nor own a horse worth more than £5; they were excluded even from residence in the larger corporate towns. To bury their dead in an old ruined abbey or monastery involved a penalty of ten pounds. A Catholic workman refusing to work on Catholic holy days was to be whipped; and there was the same punishment for those who made pilgrimages to holy wells. No Catholic could act as guardian to an infant, nor as director of the Bank of Ireland; nor could he marry a Protestant, and the priest who performed such a marriage ceremony was to be put to death. A Catholic could not acquire land, nor buy it, nor hold a mortgage on it; and the Catholic landlord was bound at death to leave his estate to his children in equal shares. During life, if the wife or son of such became a Protestant, she or he at once obtained separate maintenance. The law presumed every Catholic to be faithless, disloyal, and untruthful, assumed him to exist only to be punished, and the ingenuity of the Legislature was exhausted in discovering new methods of repression. Viceroys were constantly appealed to to give no countenance to Popery; magistrates, to execute the penal laws; degraded Irishmen called priest-hunters were rewarded for spying upon their priests, and degraded priests who apostatized were rewarded with a government pension. The wife was thus encouraged to disobey her husband, the child to flout his parents, the friend to turn traitor to his friend. These Protestant legislators in possession of Catholic lands wished to make all Catholics helpless and poor. Without bishops they must soon be without priests, and without schools they must necessarily go to the Protestant schools. These hopes however proved vain. Students went to foreign colleges, and bishops came from abroad, facing imprisonment and death. The schoolmaster taught under a sheltering hedge, and the priest said Mass by stealth, watched over by the people, and in spite of priest-hunter and penal laws. Nor were the Catholics won over by such Protestant ministers as they saw, men without zeal and often without faith, not unlike those described by Spenser in Elizabeth‘s day—”of fleshy incontinency, greedy avarice and disordered lives”. In other respects the Penal Laws succeeded. They made the Catholics helpless, ignorant, and poor, without the strength to rebel, the hope of redress, or even the courage to complain.
At last the tide turned. Too poor to excite the cupidity of their oppressors, too feeble to rebel, the Catholics had nevertheless shown that they would not become Protestants; and the repression of a feeble people, merely for the sake of repression, had tarnished the name of England, and alienated her friends among the Catholic nations. In these circumstances the Irish Parliament began to retrace its steps, and concessions were made, slowly and grudgingly. At first the Penal Laws ceased to be rigorously enforced, and then, in 1771, Catholics were allowed to take leases of unreclaimed bog for sixty-one years. Three years later they were allowed to substitute an Oath of Allegiance for the Oath of Supremacy; and in 1778 Gardiner’s Act allowed them to take leases of land for 999 years, and also allowed Catholic landlords to leave their estates to one son, instead of having, as hitherto, to divide between all. In 1782 a further Act enabled Catholics to set up schools, with the leave of the Protestant bishop of the place, enabling them also to own horses in the same way as Protestants, and further permitting bishops and priests to reside in Ireland. Catholics were also allowed to act as guardians to children. Grattan favored complete equality between Catholics and Protestants, but the bigots in Parliament were too strong, and among them were the so-called patriot leaders, Charlemont and Flood. Not till 1792 was there a further Act allowing Catholics to marry Protestants, to practice at the bar, and to set up Catholic schools without obtaining a licence from the Protestant bishop. These concessions were scorned by the Catholic Committee, long charged with the care of Catholic interests, and which had lately passed from the feeble leadership of Lord Kenmare to the more capable leadership of John Keogh. The new French Republic had also become a menace to England, and English ministers dreaded having Ireland discontented. For these reasons the Catholic Relief Bill of 1793 became law. This gave Catholics the parliamentary and municipal franchise, enabled them to become jurors, magistrates, sheriffs, and officers in the army and navy. They might carry arms under certain conditions, and they were admitted to the degrees of Trinity College, though not to its emoluments or higher honors. Two years later the advent of Lord Fitzwilliam as viceroy was regarded as the herald of complete religious equality. But Pitt suddenly changed his mind, and, having resolved on a legislative union, it suited his purpose better to stop further concession. Then came the recall of Fitzwilliam, the rapid rise of the United Irish Society with revolutionary objects, the rebellion of 1798, and the Union of 1800.
From the Imperial Parliament the Catholics expected immediate emancipation, remembering the promises of British and Irish ministers, but Pitt shamefully broke his word, and emancipation was delayed till 1829. Nor would it have come even then but for the matchless leadership of O’Connell, and because the only alternative to concession was civil war. The manner of concession was grudging. Catholics were admitted to Parliament, but the forty-shilling free-holders were disfranchised, Jesuits banished, other religious orders made incapable of receiving charitable bequests, bishops penalized for assuming ecclesiastical titles, and priests for appearing outside their churches in their vestments. Catholics were debarred from being either viceroy or lord chancellor of Ireland. The law regarding Jesuits has not been enforced, but the viceroy must still be a Protestant. Nor was it till the last half-century that a Catholic could be lord chancellor, Lord O’Hagan, who died in 1880, being the first Catholic to fill that office since the Revolution of 1688.
—E. A. D’ALTON.
IV. PENAL LAWS IN THE ENGLISH COLONIES IN AMERICA
A. Anglican Establishments
—The first Virginia Charter in 1606 established the Anglican Church. The second, in 1609, repeated the terms of the establishment and prescribed the Oath of Supremacy. In support of the Establishment, the draconian laws of Governor Dale in 1611 were directed mainly against the moral laxity of the colonists and were soon abrogated. When lawmaking passed to the Colonial Assembly the Establishment was maintained, but penalizing laws were still directed towards the moral uplift of the church. Intolerance of dissent was latent and implicit. Lord Baltimore, refusing as a Catholic to acknowledge the ecclesiastical supremacy of the king, in 1628 was denied temporary residence in the colony. Following this incident a new Act of Uniformity passed the Assembly, fining absentees from service. Another, in 1642, specifically disenfranchised Catholics and enforced the expulsion, within five days, of a priest coming to the colony. Under Governor Berkeley an Act, directed mainly against the Puritan influx, made mandatory the expulsion of Nonconformists; but Puritanism remained, affecting even the Anglican clergy, and gaining a first step toward disestablishment in coercing the Assembly of 1642 to pass a law conferring upon vestries the right of choosing ministers. Under Cromwell this law was confirmed. Toleration was further established, an exception being made against Quakers who, in 1659, were banished and, upon return, were proceeded against as felons. Indeed, their consciences were not relieved from taking oaths and military service until the next century.
The Restoration ended this qualified liberty. In 1661 the old Law of 1642 was revived. The liturgy of the Anglican Church and the catechisms of the canons were prescribed; only ministers ordained by English bishops were allowed in the colony, who alone were to perform marriage services. Children born of marriages otherwise performed were declared illegitimate. Grudgingly enough Virginia recognized the Toleration Act of 1689, and from that time to the Revolution dissenting sects gradually merged into an anti-British political party arrayed against a Tory Establishment, though the prejudice against Catholics in no wise diminished, persisting almost to the Revolution in the curious Act of 1755,”for Disarming Papists”, during the French and Indian Wars. Other colonies maintaining’ the Establishment were North and South Carolina. Penalizing laws were here almost exclusively directed toward enforcing the Establishment upon a growing class of wealthy landowners whose religious indifference to the Tory Church soon arrogated to itself political rather than spiritual independence. Intolerance of Catholics was legally expressed.
B. Puritan Establishments’
—Massachusettss charter made no mention of religion, and the Puritans were free to construct their absolute theocracy. Episcopacy was repudiated and Congregationalism established. The franchise was limited to church members. Men making active profession of an alien faith were banished. The General Court made provision for a general church tax to be levied and collected by civil officers. In 1631 came the famous law admitting only church members to civic freedom. In 1635 the magistrates were given inquisitional powers over the churches themselves. Congregationalism became law and Church and State were identical. Colonists were compelled to live within easy distance of meeting-houses. Heresy was punished by banishment. Contempt toward ministers merited magisterial reproof, a fine, or standing placarded on a block. In 1656 denial of the Bible meant whipping or banishment, and as late as 1697 a law against “Blasphemy and Atheism” mentions as penalties the pillory, whipping, and boring the tongue with red-hot irons. Catholics of course were not suffered to live in the colony, and Jesuits, if banished, were to be put to death on return. The latter law was never enforced, though latent intolerance may be detected in such an ordinance as that of 1659 making the observance of Christmas a punishable offense. The persecution of Quakers and the inflicting of the death penalty in four instances brought about a rebellion within the colony which, with the endeavor of the Crown to force recognition of the Anglican Church, worked the initial movement in undermining the theocracy. With the appointment of a royal governor the franchise was broadened, Episcopalianism was established, and it was decreed in 1691 that “forever hereafter there shall be liberty of conscience allowed in the worship of God to all Christians (except Papists)”.
In Connecticut, Congregationalism under its famous instrument, the Saybrook Platform, became the State religion. But toleration was unstintingly allowed to every other licensed religion. Even laws against Quakers, apparently unenforced, imposed penalties not upon them but upon the communities that harbored them; while the universal “except Papists” phrase is significantly lacking, though in 1743 a law allowed dissenters “being Protestants” to apply for relief.
The short-lived attempt of the settlement at New Haven to found a theocratic colony based upon the Mosaic Law is interesting only in its failure. The famous “Blue Laws”, now known to be ironic forgeries, were not much more severe than the Mosaic penalties enforced by the New Haven Legislature, according to their own records. The colony was soon incorporated with that of Connecticut, in whose democratic tolerance it was speedily absorbed.
The first settlers of New Hampshire established a broadly tolerant congregationalism, which allowed civil privileges to be independent of religious belief, but the Puritan establishment was firmly planted throughout the years of the colony’s union with Massachusetts. To the influence of this union, perhaps, may be traced the single example of persecution in the colony, that against three Quakers in 1659. In 1679 the union with Massachusetts was dissolved, and a royal governor sought, unsuccessfully, to enforce the establishment of the Anglican Church. The assembly of 1680 fixed the Congregational Establishment. The franchise was limited to Protestants, and subsequent laws, notably those of 1692, 1702, 1714, defined the union of Church and State, allowing the constable to collect the church tax—that from dissenters to go to the support of their own ministers. Under the Toleration Act of 1689 all citizens were obliged to make a declaration against the pope and the doctrines of the Catholic Church.
C. Changing Establishments
—Under the Duke of York all churches were established with governmental rights, though those of power and induction were placed in the governor’s hands. Persecution for conscience’s sake seems unrecorded. Much of this tolerant attitude is due to the older Dutch foundation. It was renewed in the “Charter of Liberties”, passed by the Assembly in 1683. When the Duke of York came to the throne a faint attempt was made to establish the Anglican Church. Later the council suspended “all Roman Catholics from Command and Places of Trust”, and the franchise was soon confined to Protestants. This attitude was given universal royal warrant under the Great Toleration Act, and a supposititious Established Church existed in New York to the American Revolution, suffering the same kind of political opposition that the Establishment endured in Virginia and the Carolinas. The Establishment seized church property and banished Moravians, under the belief that they were “disguised Papists”, though its powers began to wane before its downfall with the American Revolution.
The Palatinate of Maryland under the Baltimores furnishes, with the Colony of Rhode Island, the first example in history of a complete separation of Church and State with religious tolerance. Religious freedom was proclaimed in the famous “Act for Church Liberties”, passed by the assembly and practically carried out. Under this Catholic toleration a Catholic was fined for “interfering by opprobious reproaches with two Protestants”, and Jesuits were refused the privileges of the canon law. The Toleration Act of 1649 denied toleration only to non-Christians and Unitarians, and imposed upon every resident an oath declaring for liberty of conscience. The outcome of the disgraceful Puritan “Plot” resulted in the voiding of the charter, the erection of Maryland as a royal province, and the Episcopal Establishment in 1692. The majority of the colonists were so overwhelmingly non-episcopal that the legislatures never seem to have insisted upon conformity, though they compelled church support. Against Catholics alone persecution endured. They were deprived of all civil and religious rights—the latter only in private homes; the Law of 1704 laid a tax of twenty shillings on every Irish servant imported; while in 1715 it was enacted that children of a Protestant father and a Catholic mother could, in case of the father’s death, be taken from the mother. However, the first Catholic church of Baltimore was erected without opposition in 1763, though the rights of the franchise were not extended to Catholics until the American Revolution put an end to all penal enactments.
The Presbyterian and Quaker settlers of the Jerseys, under their proprietors, were granted entire liberty of conscience. But with the assumption of the provinces, the Crown seems to have assumed that, per se, the Anglican Church was established, though no specific act to that effect seems to have been passed. At any rate, excepting troubles with Quakers in the French Wars, the annals of New Jersey are free from records of official persecution, though Catholics were disenfranchised when Jersey became a royal province. Georgia with its twoscore years of provincial history excluded “Papists” from its confines. The Anglican Church entered with the Crown and was formally, though unsuccessfully, established by the colonial legislature in 1758, the settlement remaining from the beginning indifferent toward Dissent.
D. The Free Colonies
—Two colonies, those of Rhode Island and Pennsylvania (with its offspring, Delaware) proclaimed absolute separation of Church and State. The former labored for long under the accusation of denying citizenship to Catholics, but this charge is probably based on an error of the committee that prepared the revised statutes for the public printer; while the Pennsylvania commonwealth departs from the principles of Rhode Island in restricting the right to hold office to Christians and those who believe in the existence of God. In spite of the protest of Penn, that part of the Test Oath required under the great Toleration Act, excluding Catholics from civil rights, was adopted by the colonial assembly in 1705 and endured until the Revolution, while the Disarming Act was passed, but never enforced.