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The making of a penal law (2 Anne, c.6), 1703–4

Published online by Cambridge University Press:  28 July 2016

J.G. Simms
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Extract

The act of 1704 ‘to prevent the further gronth of popery’ was, in Lecky's words, the most notorious of the penal laws. It was also the most comprehensive. It covered changes of religion, the purchase and inheritance of land, education, guardianship, employment, voting and pilgrimages. It was from the first regarded as an important and highly controversial measure. There was a great deal of argument about it, and its form changed remarkably during the protracted proceedings that took place before it passed into law. Catholics opposed it strenuously at various points in the legislative process. The introduction, at a late stage, of the sacramental test hit dissenters and produced further controversv. There were a number of unusual features in the treatment of the bill which repay investigation of the considerable volume of material relating to it. There are also gaps in the evidence which make it difficult to be certain about such questions as the attitude of the English government of the day to penal legislation in Ireland. It is particularly hard to determine why, and by whom, the sacramental test was introduced into the bill.

Type
Articles
Information
Irish Historical Studies , Volume 12 , Issue 46 , October 1960 , pp. 105 - 118
Copyright
Copyright © Irish Historical Studies Publications Ltd 1960

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References

1 The chief primary sources for the history of the bill are the correspondence between the English and Irish governments (calendared in Cal. S.P. dorn., 1703–4), Commons’ jn. Ire., and two manuscripts from the Southwell collection, B.M., Add. MSS 9715, 37,673. Of secondary accounts the fullest is to be found in Froude, The English in Ireland, i. 329–33, 340–53. The question of the test is discussed in considerable detail in Beckett, Protestant dissent in Ireland, pp. 43–52.

2 B.M., Add. MS 9715, ff. 39–41; Commons’ jn. Ire., ii. 161, 253.

3 Cal. S.P. dorn., 1702-3, p. 592.

4 Cal S.P. dorn., 1703–4, pp. 5, 24.

5 Wogan to Edward Southwell, 6 July 1703 (B.M., Add. MS 37, 673, f. 3).

6 Cal. S.P. dorn., 1703–4, pp. 55–7.

7 Ibid., p. 69.

8 Cal. S.P. dorn., 1703–4, p. 133.

9 Commons’ jn. Ire., ii. 321 (ed. 1798); 7 & 8 Wm III, c. 27, sect. 4.

10 Cal S.P. dorn., 1703–4, p. 151.

11 Ibid., p. 160.

12 Ibid., p. 162.

13 S.P Ire., 63/363, f. 115. The summary in Cal. S.P dorn., 1703–4, pp. 182–3, gives the misleading impression that the draft prohibited catholics from buying any land; the prohibition was limited to lands held by protestants.

14 Commons’ jn. Ire., ii. 373-7 From a comparison of the draft in the State Papers with the heads of the bill approved by the commons it can be deduced what was omitted from the version sent over to Ireland.

15 The commons’ heads have nothing about guardianship and their reference to the inheritance by catholics of protestant property is worded quite differently from the English draft.

16 Commons’ jn. Ire., ii. 365.

17 Ibid., p. 385.

18 Cal. S.P. dorn., 1703–4, p. 175.

19 P.R.O., S.P. Ire., 63/363, f. 165; Cal. S.P. dorn., 1703–4, pp. 180-1. The catholic protest is calendared ‘about October’ As, however, it refers to the recent transmission of the bill for registering popish clergy (which was sent on 16 Dec. 1703), the protest is clearly to be dated in the latter part of Dec. 1703 or in Jan. 1704 while the popery bill was before the English council.

20 B.M., Add. MS 9715, f. 43.

21 B.M., Add. MS 37,673, f. 23.

22 B.M., Add. MS 9715, f. 77.

23 H.M.C., Ormonde MSS, N.S. viii. 52; Cal. S.P. dorn., 1703–4, p. 248.

24 B.M., Add. MS 37,673, ff. 25–47; Cal. S.P dorn., 1703–4, pp. 492, 501.

25 B.M., Add. MS 9715, f. 83, H.M.C., Ormonde MSS, N.S. viii. 56; H.M.C, rep. 7, app. p. 769.

26 History of his own times (ed. 1753), iv. 28–9.

27 King to bishop of Glogher, 8 Feb. 1716 (T.G.D., King corr.). There are many references in King’s correspondence to the desirability of maintaining the test. Unfortunately the letter book containing letters from April 1703 to August 1704 is missing.

28 Ware, Works (ed. W Harris), ii. 221–2.

29 Cal. S.P. dorn., 1703–4, p. 537.

30 An impartial relation of the several arguments of Sir Stephen Rice, Sir Theobald Butler and Councillor M alone, Dublin, 1704.

31 Cal S.P. dorn., 1703–4, pp. 542–3. Plowden alleges that some members £ who could not altogether reconcile the act to their consciences by the most disgraceful casuistry affected to clear themselves of responsibility by resigning their seats to others of a more pliant disposition’ (Historical review of the state of Ireland, i. 211). This is not supported by the commons’ journals, which record no resignations during the period that the bill was before the house.

32 Commons’ jn. Ire., ii. 401.

33 Ibid., pp. 451–2.

34 Ware, Works, ii. 2212.

35 Lords’ jn. Ire., ii. 73, 76.

36 8 Anne, c. 3.