1695] THE FIRST PENAL LAWS 19 search, or refusing to appear on due summons to be examined, was liable to a penalty, if a peer, of £100 for a first offence, præmunire for the second; if under the degree of a peer, £30 for first offence, and imprisonment for one year, and thereafter until the fine was paid, præmunire for the second offence. Officers covered by the Articles of Limerick might, on taking the oath of allegiance, keep (as provided by the articles in question) a sword, a case of pistols, and a gun for self-defence or fowling. No armourer or gunmaker could take a Popish apprentice under a penalty of £20; the indentures of apprenticeship, bonds, and contracts of such an apprentice, would be void. A Popish apprentice exercising such a trade was liable to a penalty of £20. Such an apprentice was bound to declare on oath, if asked, whether he was a Papist; his refusal to take such an oath was to be held equivalent to a conviction of the apprentice, and also of the master unless he proved that when the apprentice was bound he was known or reported to be a Protestant. The tenth section declared that Papists should not keep a horse of above five pounds value. Any Protestant discovering on oath to two justices might, with a constable or assistants appointed, search for such horses in daytime, and break open doors in case of opposition, and, on paying five guineas to or for the owner, have the property of such horse as if he had bought it in open market. Any one concealing such horses was liable, on conviction by two witnesses before a justice, to be imprisoned for three months, and to pay a fine equal to three times the value of the horse, to be estimated by the justices at quarter sessions, who had power to keep the owner in prison until the fine was paid. Any one refusing to take the prescribed oaths1 was deemed a Papist, and a magistrate who neglected or refused to execute the Act was liable to forfeit £50, and to be deprived of certain civil rights, such as that of acting as a magistrate. 1 The Oaths of Allegiance and Abjuration and Declaration against Transub. stantiation. The second Act enacted that any one who went himself, or sent any one, beyond the sea to be trained up in Popery, or sent over money, etc., for the maintenance, or as charity for the relief, of a religious house, and was convicted thereof, should be deprived of all civil rights. A justice of the peace, upon information of such an offence, was required to summon and examine the person suspected without oath, and witnesses on oath, and if the offence was probable, he was to bind him or her to appear at next quarter sessions-the onus of rebutting the charge to lie on the defendant. The ninth section further enacted that no Papist should teach a school publicly, or teach in private houses except the children of the family, under a penalty of £20 and three months' imprisonment for each offence. The tenth section recited the Act 28 Hen. VIII., called "An Act for the English order, habit, and language,' which enacted and provided, among other things, that the incumbent of each parish should keep, or cause to be kept, a school to teach English. It also recites another Act made in the twelfth year of Elizabeth, called "An Act for the erection of free schools," by which a public Latin school was to be constantly maintained and kept within each diocese of the kingdom; such schools, according to the Act, "have been generally maintained and kept, but have not had the desired effect by reason of such Irish Popish schools being connived at "; but henceforward all Acts concerning schools were to be strictly observed. These Acts may be considered as inaugurating the penal era. But the spirit of the Ascendency towards their serfs, and the progress of their moral decay, may be better judged by two other Acts passed in the same year than even the special Popery Acts. The first of these is an Act declaring which days in the year were to be observed as holy days.1 Hired labourers and servants who refused to work for the usual wages on any day other than one of those appointed by this Act to be kept holy, or upon 17 Will. III. c. 14 (1695). 1695] THE POSITION OF DISSENTERS 21 extraordinary occasions set apart by the king or chief governor, were fined 2s., which was to go to the poor of the parish. On default-and this was nearly certain-the labourer or servant was to be whipped. As whipping was a frequent punishment, and not deemed in general a pleasant or honourable function of the parish constable, it was found necessary to provide a fine of 20s. in case he refused to inflict the punishment. This great infringement on personal and religious liberty was aimed at the holy days of the national Church. These were, no doubt, too numerous at the time, and interfered with industry. But, however true this may have been, it was tyranny to force any one to work against his conscience. The other Act was aimed at the suppression of the sports and pastimes of the people on Sundays, and was called "An Act for the better observation of the Lord's Day, commonly called Sunday." The third section enacted that, to prevent breach of the peace by disorderly meetings, hurling, football, cudgels, and other pastimes on Sunday, should be prohibited under a penalty of 12d. or two hours in the stocks. Strictly speaking, these Acts did not form part of the penal code as usually understood, and appear to have been borrowed from English Acts. Their enactment at this period was suggested by the same spirit that dictated the penal Acts properly so called, and this spirit was stamped upon even the most trivial law or regulation. The "Protestant interest," though united against the "common enemy," as the native Irish were called, were divided among themselves. The position of Dissenters in Ireland was anomalous: the Huguenots and other foreign Protestants who had been invited to settle in Ireland were allowed full liberty of conscience; not so the Irish and British Dissenters, who were subject to the Act of Uniformity. In England the Toleration Act had secured them liberty of worship, but the Sacramental Test shut them out from public employment. In Ireland, on the other hand, there was no Sacramental Test, and the Oaths of Allegi 17 Will. III. c. 17 (1695). ance and Abjuration, which had been substituted for the Oath of Supremacy, did not shut them out from the magistracy, or from holding commissions in the army; they were eligible to sit in Parliament, to be members of municipal corporations-in a word, they possessed all the secular rights of citizenship, yet were obliged to conform to the worship of the Established Church. King William, who was reluctant to persecute the Catholics, was naturally desirous to secure religious equality for the various Dissenters, with whom he was more akin than with the Established Church. When in Ireland, he had shown his interest in the Presbyterians by giving them a grant of £1200 a year out of the customs of Belfast. But he had to reckon with a power whose force he did not understand. As the Protestant minority trampled on the liberty of the Catholic majority, so the Church minority, which formed barely one-third of the Protestants, and one-eleventh of the whole population, trampled on the rights of the majority of their fellow-Protestants. The Irish Established Church clergy were almost exclusively of the High Church party, extreme believers in the royal prerogative; and their political principles generally belonged to an absolutist type. The great landed proprietors and higher gentry, though still Calvinistic in belief and political principles, were outwardly High Churchmen, in order not to be confounded with the Puritans and Cromwellians, from whom they derived their wealth. King William was desirous of placing all Protestants on an equality so far as he could; he was, at all events, anxious to secure the Nonconformist ministers from the annoyances and petty persecutions of the clergy and minor officials of the Establishment. In 1692 Lord Sidney was directed to submit to Parliament the heads of a Bill identical with the English Toleration Act. The Bill was, however, fiercely opposed; the bishops would not hear of toleration unless accompanied by a Sacramental Test, which would shut out Nonconformists from the army, the navy, the learned professions, and the civil service. Owing to the prorogation, and subsequent dissolution, of the Parliament of 1692, 1696] REACTION IN IRELAND 23 nothing came of the Toleration Bill. The king directed it to be reintroduced into the Parliament of 1695. The Dissenters, anticipating that another attempt would be made to impose the Test when the Bill should be before Parliament, appealed to the Protestant public in a remonstrance, pointing out that the Test Act in England was designed against Catholics, while in Ireland it would cut off the main branch of the Protestant interest; they therefore preferred to remain as they were, liable to prosecution under the Act of Uniformity-and so they did remain until the exertions of their Catholic fellow-countrymen emancipated them. The Toleration Bill was introduced into the Commons, and Capel did all he could to further it, but it was lost. Lord Drogheda tried to carry the heads of a similar Bill in the House of Lords, but it was defeated by the bishops. The party struggles and intrigues of Whigs and Tories in England produced a reaction in Ireland. The High Churchmen-bishops and laymen-who had been most desirous of coercing the Catholics, and clamorous against the slightest symptom of leniency towards them, were now disposed to favour them, and treat the Presbyterians harshly. Capel, who had favoured the equality of the Protestant sects, and alliance with them against the "common enemy," died in 1696; Porter was made Lord Justice, but he too died shortly afterwards. De Ruvigny, Earl of Galway, and the Marquis of Winchester were next appointed; and the Chancellorship was given to an English barrister named Methuen, who had been the minister in Portugal. King William, wearied by his disputes with English parties, seems to have lost all hope of carrying out a policy of toleration towards the Irish, and of effecting a union of the various Protestant sects under a common State Church broad enough to embrace every shade of Dissent. He thought it best to give free scope to the Irish Protestants; so he relinquished the power of reversing Irish outlawries, and in the heads of the Bill for this purpose which was sent over he allowed a clause to be inserted |