The Penal Laws

Treaty of Limerick

From the 17th century to the early 19th century, penal laws imposed legal disabilities on persons who were not members of the established church. These laws were accompanied by other legislation that reinforced the position of the established church and imposed various stages of penalties and restrictions on other churches.

The laws were aimed at Protestant dissenters and Catholics. The anti-Catholic laws were harsher and introduced during the War of the Spanish Succession, in which the Holy See had recognised the son of King James II as the legitimate king of Great Britain and Ireland until his death in 1766. Catholics were obliged to support him. Appointees to the Catholic hierarchy were drawn from supporters.

See the previous sections in relation to the origin of the penal laws. Dating back to the Reformation, significant obstacles to public office existed for persons who were not members of the established church. There were significant forfeitures of lands after the various uprisings and rebellions.

The Treaty of Limerick followed the defeat of the Jacobite forces after the Williamite War in Ireland between King James II and King William III and their supporters. Because William III wished to use his troops in the War of the Grand Alliance against France in Europe, the terms were relatively favourable to Catholics.

Jacobites who wished to be transported to France to continue to serve under James II could do so. Ultimately, about 12,000 soldiers and dependents did so.

Treaty Terms

Article 1 provided: “The Roman Catholics of this kingdom shall enjoy such privileges in the exercise of their religion as are consistent with the laws of Ireland, or as they did enjoy in the reign of King Charles II: and their majesties, as soon as their affairs will permit them to summon a parliament in this kingdom, will endeavour to procure the said Roman Catholics such further security in that particular, as may preserve them from any disturbance upon the account of their said religion.”

Article 2 extended protection from forfeiture offered to those in Limerick and other Jacobite garrisons in 1691 to those under Jacobite protection in Limerick, Clare, Kerry, Cork, and Mayo. “Provided also, that no person whatsoever shall have or enjoy the benefit of this article, that shall neglect or refuse to take the oath of allegiance, made by act of parliament in England, in the first year of the reign of their present majesties, when thereunto required. The oath to be administered to such Roman Catholics as submit to their majesties’ government, shall be the oath abovesaid and no other.”

Article 9 provided that Catholics were required only to take an oath of allegiance rather than an oath of supremacy. Article 12 committed the king to seeking its ratification in the Irish Parliament.

Post-Treaty & Land Confiscation

The settlement was vehemently opposed by Irish Protestants who wished to secure their dominance in landowning, political, and economic life. The treaty, as approved by Parliament in 1697, was wholly altered and undermined. Article 2 was omitted, and the remaining articles were not confirmed in full.

The Treaty reduced the amount of land confiscated from Catholic magnates. Confiscation required legal action in court, which was more difficult to bring. Due to a dispute between King William III and the English Parliament, the disposal of Irish forfeited land was not legislated for.

The Act of Resumption 1700 resulted in about 40 estates being given back to the owners via a Court of Claims that allowed almost half of the claims admitted.

The effect of the legislation was that the holdings by Catholic landholders decreased from approximately 22% before the Williamite War to 14% at the beginning of the 18th century and as low as 5% at the end of the century.

Disarming Catholics

The 1695 Act for Disarming Papists removed access to arms and prohibited Catholics from military service. They were not permitted to hold commissions in the army or navy or serve as soldiers in any capacity. Weapons were to be presented for confiscation to local officials who were permitted to search homes and businesses they suspected of holding the same. The first offence required a fine and/or jail time, and the second offence could result in a trial for praemunire (An Act Disarming Papists, 1695, 7).

Weaponsmiths could not take Catholic apprentices unless they took an oath of allegiance to the King, forsaking the legitimacy of all foreign powers, including the Pope, and disavowing the practice.

Another element of the legislation permitted the seizing of horses worth more than £5 from Catholics with the approval of the justice of the peace or constable. These measures were designed to remove cavalry horses.

Catholic Clergy  & Observance

The Banishment Act 1697 (3 Will. & Mary c. 11) banished Catholic clergy and prevented them from exercising any ecclesiastical jurisdiction. Archbishops, bishops, Jesuits, monks, friars, and other regular Popish clergy were to leave Ireland before 1 May 1698. If they did not comply, they could be imprisoned without trial and transported out of the British Empire. If they returned, they would be guilty of high treason, as would anyone who assisted them.

The Act Declaring Holy Days, 1695 (7 Will. 3. c. 4), declared which days were to be observed as holy days. It was aimed at Catholics who took days off work under the guise of holy days devoted to some saint or image. If they refused to work on days other than prescribed holy days, they would be fined two shillings.

The Registration Act (2 Ann. c. 7 (I); long title An Act for registering the Popish Clergy) was an Act of the Parliament of Ireland passed in 1704, which required all “Popish” (Roman Catholic) priests to register at their local magistrates’ court, to pay two £50 bonds to ensure good behaviour, and to stay in the county where they registered.

An Act to Prevent the Further Growth of Popery (2 Ann. c. 6 (I); (1704), commonly known as the Popery Act, aimed to encourage or act on apostasy from Protestantism to Catholicism.

Marriage and Succession

It effectively prohibited Catholics from inheriting land held by Protestants. It also prohibited Catholics under 21 from going abroad without a licence, to help enforce the Education Act 1695’s prohibition on Catholic education overseas. The courts were empowered to take up to one-third of a Catholic parent’s property to pay for the child’s education if the child conformed to Protestantism.

Section 5 extended the existing prohibition on Protestants marrying Catholics, including those married abroad. Section 6 prohibited Catholics from buying land or leasing it for more than 31 years. Section 7 required any Catholic acquiring title to real property to enter possession within six months, failing which it was forfeited to the nearest Protestant relative. A near Catholic relative could pre-empt the transaction by conforming to Protestantism within six months.

Inheritance from Catholics was governed by gavelkind, meaning the estate was divided equally among all sons. If there were no sons, the estate was divided among the daughters or closest next of kin.

Section 12 allowed the elder son to inherit the whole estate by primogeniture if he conformed to Protestantism within three months of his father’s death. Section 13 provided that inheritance without a will would pass under common law primogeniture.

Exclusion from Office

Section 17 required any person holding an existing civil or military office to subscribe to a court of session the declaration specified in the security of the succession act, and acknowledge the papacy and the Jacobite succession, and give allegiance to Queen Anne.

The sacramental test excluded Protestant dissenters, particularly Presbyterians, from municipal and public offices.

A person could abjure their assumption of the Protestant religion by taking the oath of supremacy and allegiance. A roll was to be kept for those subscribing to the oath and declaration at the four courts.

Section 24 required Catholics voting in elections for the Irish House of Commons to take an oath of allegiance and abjuration.

Office & Franchise

Catholics were excluded from most public offices from 1607. The oath of supremacy was required for membership of the Parliament of Ireland and was renewed in 1691. It applied to the Parliament of England, Great Britain, and the United Kingdom of Great Britain and Ireland until the Catholic Relief Act 1829.

The sacramental test was applied to all civil and military officeholders. They had to provide certified evidence that they received the sacrament of the Lord’s Supper in accordance with the usage of the Church of Ireland and enroll the certificate in the courts. They were to take an oath of allegiance and an abjuration against the Stuart pretender and recognise the royal succession of the House of Hanover.

The Disenfranchising Act 1728 prohibited Roman Catholics from voting in parliamentary elections. It was repealed by the Roman Catholic Relief Act 1793, allowing the franchise in Ireland to all men holding property with a rental value of at least two pounds annually.

Education

The Education Act 1695 (7 Will. 3. c. 4 (I)), was an act of the Parliament of  Ireland, one of a series of penal laws, prohibiting Catholics from sending their children to be educated abroad. Its long title is “An Act to restrain Foreign Education”.

“No person of the Popish religion shall publicly or in private houses teach school, or instruct youth in learning within this realm” upon pain of a £20 fine and three months in prison for every such offence.

An Act of 1698 prevented Catholics from being solicitors.

Further acts in 1707, 1728, and 1734 were aimed at the practice of law by Catholic solicitors. The Banishment Act required all Catholic archbishops, bishops, and regular clergy to be expelled by 1 May 1698. Those returning would be guilty of high treason.

Popery Acts & Reinforcment

The 1703 and 1704 Acts prohibited Catholic clergy from coming into Ireland and required those in the country to register. The Popery Act was a wide-ranging act with provisions affecting landownership and inheritance, office holding, education, guardianship, voting rights, and conversion.

Gavelkind was applied to the inheritance of Catholic estates, which reduced their size and value. Inheritance by primogeniture was allowed for an elder son who converted to the Church of Ireland.

The Limited Toleration Act was passed in 1719. The 1719 Act sought to close loopholes in the 1704 legislation in relation to land purchase, inheritance, education, marriage, conversion, Catholic clergy, and others. It introduced the prospect of a Protestant heir gaining possession of land illegally purchased by Catholics. It provided a reward for persons discovering archbishops and bishops, regular priests, unregistered secular priests, as well as illegal school headmasters.

Acts of 1727 and 1733 reinforced the restrictions on Catholic barristers, attorneys, and solicitors. Legislation prohibited converts to Protestantism and their wives from remaining Catholic or educating their children as Catholics.

Easing of Penal Laws

Upon the death of James II’s son in 1766, the Holy See recognised the House of Hanover as legitimate, which removed the main political basis for the penal laws. Catholic Relief Acts were passed in 1771, 1778, and 1793.

In the late 18th century, Roman Catholic Relief Acts eased the penal laws. In 1772, Catholics were permitted to lease up to 50 acres of land for 61 years. The oath of allegiance for Catholics was replaced in 1774. The Irish re-enactment of the British Act of 1778 implicitly repealed other provisions of the 1704 Act. Maximum leases for Catholic tenants were increased from 31 years to 999 years. The restrictions and hardships in preference for a convert elder son were abolished.

Most restrictions on intermarriage were removed by the Roman Catholic Relief Act 1792. Many of the remaining penal laws were repealed by the Roman Catholic Relief Act 1793. The sacramental test for public office for Catholics was effectively replaced by the 1774 oath.

The Roman Catholic Relief Act 1829 abolished the declaration against transubstantiation and specified a new public oath for Catholics. It permitted Catholics to hold all civil or military offices except for the office of Lord Chancellor.

The Religious Disabilities Act 1846 repealed the provisions prohibiting Catholics from being guardians of Protestant children and acts to persuade conversion from Protestantism to Catholicism and land succession.

The Popery Act was rendered ineffective by the Promissory Oaths Act 1871. Ultimately, it was made redundant by the Irish Church Act 1869 and repealed by the Statute Law Revision Act 1878.