The Land-War in Ireland: A History for the Times

by James Godkin

CHAPTER XIII.

THE PENAL CODE, A NEW SYSTEM OF LAND-WAR.

The accession of James II. was well calculated to have an intoxicating effect on the Irish race. He was a Catholic, he undertook to effect a counter-reformation. He would restore the national hierarchy to the position from which it had been dragged down and trampled under the feet of the Cromwellians. He would give back to the Irish gentry and nobility their estates; and to effect this glorious revolution, he relied upon the faith and valour of the Irish. The Protestant militia were disarmed, a Catholic army was formed; the corporations were thrown open to Catholics. Dublin and other corporations, which refused to surrender their exclusive charters, were summarily deprived of their privileges; Catholic mayors and sheriffs, escorted by troops, went in state to their places of worship. The Protestant chancellor was dismissed to make way for a Catholic, Baron Rice. The plate of Trinity College was seized as public property. The Protestants, thoroughly alarmed by these arbitrary proceedings, fled to England in thousands. Many went to Holland and joined the army of the Prince of Orange. Dreadful stories were circulated of an intended invasion of England by wild Irish regiments under Tyrconnel. There was a rumour of another massacre of the English, and of the proposed repeal of the act of settlement. Protestants who could not cross the channel fled to Enniskillen and to Derry, which closed its gates and prepared for its memorable siege. James, who had fled to France, plucked up courage to go to Ireland, and make a stand there in defence of his crown. His progress from Kinsale to Dublin was an ovation. Fifteen royal chaplains scattered blessings around him; Gaelic songs and dances amused him; he was flattered in Latin orations, and conducted to his capital under triumphal arches. In Dublin the trades turned out with new banners; two harpers played at the gate by which he entered; the clergy in their robes chanted as they went: and forty young girls, dressed in white, danced the ancient rinka, scattering flowers on the newly sanded streets. Tyrconnell, now a duke, the judges, the mayor and the corporation, completed the procession, which moved beneath arches of evergreens, and windows hung with 'tapestry and cloth of arras.' The recorder delivered to his majesty the keys of the city, and the Catholic primate, Dominick Maguire, waited in his robes to conduct him to the royal chapel, where the Te Deum was sung. On that day the green flag floated from the main tower of the castle, bearing the motto, 'Now or never—now and for ever.'

The followers of James, according to Grattan, 'though papists, were not slaves. They wrung a constitution from King James before they accompanied him to the field.' A constitution wrung from such a man was not worth much. His parliament passed an act for establishing liberty of conscience, and ordering every man to pay tithes to his own clergy only, with some other measures of relief. But he began to play the despot very soon. The Commons voted him the large subsidy of 20,000l. He doubled the amount by his own mere motion. He established a bank, and by his own authority decreed a bank monopoly. He debased the coinage, and fixed the prices of merchandise by his own will. He appointed a provost and librarian in Trinity College without the consent of the senate, and attempted to force fellows and scholars on the university contrary to the statutes. The events which followed are well known to all readers of English history. Our concern is with their effects on the land question.

One of the measures passed by this parliament was an act repealing the act of settlement. But, soon after the Revolution, measures were taken to render that settlement firmer than ever. A commission was appointed to enquire into the forfeited estates; and the consequence was that 1,060,792 acres were declared escheated to the crown. In 1695 King William, in his speech, read to the Irish parliament, assured them that he was intent upon the firm settlement of Ireland upon a Protestant basis. He kept his word, for when he died there did not remain in the hands of Catholics one-sixth of the land which their grandfathers held, even after the passing of the act of settlement. The acts passed for securing the Protestant interest formed the series known as the penal code, which was in force for the whole of the eighteenth century. It answered its purpose effectually; it reduced the nation to a state of poverty, degradation, and slavishness of spirit unparalleled in the history of Christendom, while it made the small dominant class a prodigy of political and religious tyranny. Never was an aristocracy, as a body, more hardened in selfishness, more insolent in spirit; never was a church more negligent of duty, more intensely and ostentatiously secular. Both church and state reeked with corruption.

The plan adopted for degrading the Catholics, and reducing all to one plebeian level, was most ingenious. The ingenuity indeed may be said to be Satanic, for it debased its victims morally as well as socially and physically. It worked by means of treachery, covetousness, perfidy, and the perversion of all natural affections. The trail of the serpent was over the whole system. For example, when the last Duke of Ormond arrived as lord lieutenant in 1703, the Commons waited on him with a bill 'for discouraging the further growth of Popery,' which became law, having met his decided approval. This act provided that if the son of a Catholic became a Protestant, the father should be incapable of selling or mortgaging his estate, or disposing of any portion of it by will. If a child ever so young professed to be a Protestant, it was to be taken from its parents, and placed under the guardianship of the nearest Protestant relation.

The sixth clause renders Papists incapable of purchasing any manors, tenements, hereditaments, or any rents or profits arising out of the same, or of holding any lease of lives, or other lease whatever, for any term exceeding thirty-one years. And with respect even to such limited leases, it further enacts, that if a Papist should hold a farm producing a profit greater than one-third of the amount of the rent, his right to such should immediately cease, and pass over entirely to the first Protestant who should discover the rate of profit. The seventh clause prohibits Papists from succeeding to the properties or estates of their Protestant relations. By the tenth clause, the estate of a Papist, not having a Protestant heir, is ordered to be gavelled, or divided in equal shares between all his children. The sixteenth and twenty-fourth clauses impose the oath of abjuration, and the sacramental test, as a qualification for office, and for voting at elections. The twenty-third clause deprives the Catholics of Limerick and Galway of the protection secured to them by the articles of the treaty of Limerick. The twenty-fifth clause vests in the crown all advowsons possessed by Papists.

A further act was passed, in 1709, imposing additional penalties. The first clause declares that no Papist shall be capable of holding an annuity for life. The third provides, that the child of a Papist, on conforming, shall at once receive an annuity from his father; and that the chancellor shall compel the father to discover, upon oath, the full value of his estate, real and personal, and thereupon make an order for the support of such conforming child or children, and for securing such a share of the property, after the father's death, as the court shall think fit. The fourteenth and fifteenth clauses secure jointures to Popish wives who shall conform. The sixteenth prohibits a Papist from teaching, even as assistant to a Protestant master. The eighteenth gives a salary of 30l. per annum to Popish priests who shall conform. The twentieth provides rewards for the discovery of Popish prelates, priests, and teachers, according to the following whimsical scale:—For discovering an archbishop, bishop, vicar-general, or other person, exercising any foreign ecclesiastical jurisdiction, 50l.; for discovering each regular clergyman, and each secular clergyman, not registered, 20l.; and for discovering each Popish schoolmaster or usher, 10l.

In judging the Irish peasantry, we should try to estimate the effects of such a system on any people for more than a century. It will account for the farmer's habit of concealing his prosperity, and keeping up the appearance of poverty, even if he had not reason for it in the felonious spirit of appropriation still subsisting under legal sanction. We are too apt to place to the account of race or religion the results of malignant or blundering legislation. We are not without examples of such results in England itself.

In the winter of 1831-2, a very startling state of things was presented. In a period of great general prosperity, that portion of England in which the poor laws had their most extensive operation, and in which by much the largest expenditure of poor-rates had been made, was the scene of daily riot and nightly incendiarism. There were ninety-three parishes in four counties, of which the population was 113,147, and the poor-law expenditure 81,978l., or 14s. 5d. per head; and there were eighty parishes in three other counties, the population of which was 105,728, and the poor-law expenditure 30,820l., or 5s. 9d. a head. In the counties in which the poor-law expenditure was large, the industry and skill of the labourers were passing away, the connection between the master and servant had become precarious, the unmarried were defrauded of their fair earnings, and riots and incendiarism prevailed. In the counties where the expenditure was comparatively small, there was scarcely any instance of disorder; mutual attachment existed between the workman and his employer; the intelligence, skill, and good conduct of the labourers were unimpaired, or increased. This striking social contrast was only a specimen of what prevailed throughout large districts, and generally throughout the south and north of England, and it proved that, either through the inherent vice of the system, or gross mal-administration in the southern counties, the poor-law had the most demoralising effect upon the working classes, while it was rapidly eating up the capital upon which the employment of labour depended. This fact was placed beyond question by a commission of enquiry, which was composed of individuals distinguished by their interest in the subject, and their intimate knowledge of its principles and details. Its labours were continued incessantly for two years. Witnesses most competent to give information were summoned from different parts of the country. The commissioners had before them documentary evidence of every kind calculated to throw light on the subject. They personally visited localities, and examined the actual operation of the system on the spot; and when they could not go themselves, they called to their aid assistant commissioners, some of whom extended their enquiries into Scotland, Guernsey, France, and Flanders; while they also collected a vast mass of interesting evidence from our ambassadors and diplomatic agents in different countries of Europe and America. It was upon the report of this commission of enquiry that the act was founded for the amendment and better administration of the laws relating to the poor in England and Wales (4 and 5 William IV., cap. 76). A more solid foundation for a legislative enactment could scarcely be found. The importance of the subject fully warranted all the expense and labour by which it was obtained.

One of the most astounding facts established by the enquiry was the wide-spread demoralisation which had developed itself in certain districts. Home had lost its sanctity. The ties that bind parents and children were loosened, and natural affection gave place to intense selfishness, which often manifested itself in the most brutal manner. Workmen grew lazy and dishonest. Young women lost the virtue which is not only the point of honour with their sex, but the chief support of all other virtues. Not only women of the working classes, but in some cases even substantial farmers' daughters, and sometimes those who were themselves the actual owners of property, had their illegitimate children as charges on the parish, regularly deducting the cost of their maintenance from their poor-rate, neither they nor their relatives feeling that to do so was any disgrace. The system must have been fearfully vicious that produced such depravation of moral feeling, and such a shocking want of self-respect.

Dr. Burn has given a graphic sketch of the duties of an overseer under the old poor-law system in England. 'His office is to keep an extraordinary watch to prevent people from coming to inhabit without certificates; to fly to the justices to remove them. Not to let anyone have a farm of 10l. a year. To warn the parishioners, if they would have servants, to hire them by the month, the week, or the day, rather than by any way that can give them a settlement; or if they do hire them for a year, then to endeavour to pick a quarrel with them before the year's end, and so to get rid of them. To maintain their poor as cheaply as they possibly can, and not to lay out twopence in prospect of any future good, but only to serve the present necessity. To bargain with some sturdy person to take them by the lump, who yet is not intended to take them, but to hang over them in terrorem, if they shall complain to the justices for want of maintenance. To send them out into the country a begging. To bind out poor children apprentices, no matter to whom, or to what trade; but to take special care that the master live in another parish. To move heaven and earth if any dispute happen about a settlement; and, in that particular, to invert the general rule, and stick at no expense. To pull down cottages: to drive out as many inhabitants, and admit as few, as they possibly can; that is, to depopulate the parish, in order to lessen the poor's-rate. To be generous, indeed, sometimes, in giving a portion with the mother of a bastard child to the reputed father, on condition that he will marry her, or with a poor widow, always provided that the husband be settled elsewhere; or if a poor man with a large family happen to be industrious, they will charitably assist him in taking a farm in some neighbouring parish, and give him 10l. to pay his first year's rent with, that they may thus for ever get rid of him and his progeny.'

The effect of this system was actually to depopulate many parishes. The author of a pamphlet on the subject, Mr. Alcock, stated that the gentlemen were led by this system to adopt all sorts of expedients to hinder the poor from marrying, to discharge servants in their last quarter, to evict small tenants, and pull down cottages; so that several parishes were in a manner depopulated, while England complained of a want of useful hands for agriculture, manufactories, for the land and sea service. 'When the minister marries a couple,' he said, 'he rightly prays that they may be fruitful in the procreation of children; but most of the parishioners pray for the very contrary, and perhaps complain of him for marrying persons, that, should they have a family of children, might likewise become chargeable.' Arthur Young also described the operation of the law in his time, in clearing off the people, and causing universally 'an open war against cottages.' Gentlemen bought them up whenever they had an opportunity, and immediately levelled them with the ground, lest they should become 'nests of beggars' brats.' The removal of a cottage often drove the industrious labourer from a parish where he could earn 15s. a week, to one where he could earn but 10s. As many as thirty or forty families were sent off by removals in one day. Thus, as among the Scotch labourers of the present day, marriage was discouraged; the peasantry were cleared off the land, and increasing immorality was the necessary consequence.

There was another change in the old system, by which the interests of the influential classes were made to run in favour of the 'beggars' nests,' which were soon at a premium. The labourer was to be paid, not for the value of his labour, but according to the number of his family; the prices of provisions being fixed by authority, and the guardians making up the difference between what the wages would buy and what the family required.

The allowance scales issued from time to time were framed on the principle that every labourer should have a gallon loaf of standard wheaten bread weekly for every member of his family, and one over. The effect of this was, that a man with six children, who got 9s. a week wages, required nine gallon loaves, or 13s. 6d. a week, so that he had a pension of 4s. 6d. over his wages. Another man, with a wife and five children, so idle and disorderly that no one would employ him, was entitled to eight gallon loaves for their maintenance, so that he had 12s. a week to support him. The increase of allowance according to the number of children acted as a direct bounty upon marriage. The report of the Committee of the House of Commons on labourers' wages, printed in 1824, describes the effect of this allowance system in paralysing the industry of the poor. 'It is obvious,' remarked the committee, 'that a disinclination to work must be the consequence of so vicious a system. He whose subsistence is secure without work, and who cannot obtain more than a mere sufficiency by the hardest work, will naturally be an idle and careless labourer. Frequently the work done by four or five such labourers does not amount to what might easily be performed by a single labourer at task work. A surplus population is encouraged: men who receive but a small pittance know that they have only to marry and that pittance will be increased proportionally to the number of their children. When complaining of their allowance, they frequently say, "We will marry, and then you must maintain us." This system secures subsistence to all; to the idle as well as the industrious; to the profligate as well as the sober; and, as far as human interests are concerned, all inducements to obtain a good character are taken away. The effects have corresponded with the cause: able-bodied men are found slovenly at their work, and dissolute in their hours of relaxation; a father is negligent of his children, the children do not think it necessary to contribute to the support of their parents; the employer and employed are engaged in personal quarrels; and the pauper, always relieved, is always discontented. Crime advances with increasing boldness; and the parts of the country where this system prevails are, in spite of our gaols and our laws, filled with poachers and thieves.' Mr. Hodges, chairman of the West Kent quarter sessions, in his evidence before the emigration committee, said, 'Formerly, working people usually stayed in service till they were twenty-five, thirty, and thirty-five years of age, before they married; whereas they now married frequently under age. Formerly, these persons had saved 40l. and 50l. before they married, and they were never burdensome to the parish; now, they have not saved a shilling before their marriage, and become immediately burdensome.'

The farmers were not so discontented with this allowance system as might be supposed, because a great part of the burden was cast upon other shoulders. The tax was laid indiscrimately upon all fixed property; so that the occupiers of villas, shopkeepers, merchants, and others who did not employ labourers, had to pay a portion of the wages for those that did. The farmers were in this way led to encourage a system which fraudently imposed a heavy burden upon others, and which, by degrading the labourers, and multiplying their numbers beyond the real demand for them, must, if allowed to run its full course, have ultimately overspread the whole country with the most abject poverty and wretchedness.

There was another interest created which tended to increase the evil. In the counties of Suffolk, Sussex, Kent, and generally through all the south of England, relief was given in the shape of house accommodation, or free dwellings for the poor. The parish officers were in the habit of paying the rent of the cottages; the rent was therefore high and sure, and consequently persons who had small pieces of ground were induced to cover them with those buildings. On this subject Mr. Hodges, the gentleman already referred to, remarks: 'I cannot forbear urging again that any measure having for its object the relief of the parishes from their over population, must of necessity become perfectly useless, unless the act of parliament contains some regulations with respect to the erecting and maintaining of cottages. I am quite satisfied that the erecting of cottages has been a most serious evil throughout the country. The getting of the cottage tempts young people of seventeen and eighteen years of age, and even younger, to marry. It is notorious that almost numberless cottages have been built by persons speculating on the parish rates for their rents.'

The evils of this system had reached their height in the years 1831-2. That was a time when the public mind was bent upon reforms of all sorts, without waiting for the admission from the Tories that the grievances of which the nation complained were 'proved abuses.' The reformers were determined no longer to tolerate the state of things, in which the discontent of the labouring classes was proportioned to the money disbursed in poor-rates, or in voluntary charities; in which the young were trained in idleness, ignorance, and vice—the able-bodied maintained in sluggish and sensual indolence—the aged and more respectable exposed to all the misery incident to dwelling in such society as that of a large workhouse without discipline or classification—the whole body of inmates subsisting on food far exceeding both in kind and amount, not merely the diet of the independent labourer, but that of the majority of the persons who contributed to their support. The farmer paid 10s. in the pound in poor-rates, and was in addition compelled to employ supernumerary labourers not required on his farm, at a cost of from 100l. to 250l. a year; the labourer had no need to hasten himself to seek work, or to please his master, or to put a restraint upon his temper, having all the slave's security for support, without the slave's liability to punishment. The parish paid parents for nursing their little children, and children for supporting their aged parents, thereby destroying in both parties all feelings of natural affection and all sense of Christian duty.

I hope I shall be excused in giving, from a former work of my own, these home illustrations to prove that bad laws can degrade and demoralize a people in a comparatively short time, in spite of race and creed and public opinion; and that, where class interests are involved, the most sacred rights of humanity are trampled in the mire of corruption. Even now the pauperism resulting of necessity from the large-farm system is degrading the English people, and threatening to rot away the foundations of society. On this subject I am glad to find a complete corroboration of my own conclusions in a work by one of the ablest and most enlightened Christian ministers in England, the Rev. Dr. Rigg. He says:—

'Notwithstanding a basis of manly, honest, and often generous qualities, the common character of all the uneducated and unelevated classes of the English labouring population includes, as marked and obvious features, improvidence, distrust of their superiors, discontent at their social position, and a predominant passion for gross animal gratification. Of this general character we regard the rude, heavy, unhopeful English peasant, who knows no indulgence or relaxation but that of the ale-house, and lives equally without content and without ambition, as affording the fundamental type, which, like all other things English, possesses a marked individuality. It differs decidedly from the Irish type of peasant degradation. Something of this may be due to the effect of race. The Kelt and the Saxon may be expected to differ. Yet we think but little stress is to be laid upon this. There is, probably, much more Keltic blood in the southern and western counties of England, and, also, more Saxon blood in some of the southern and even western parts of Ireland, than has been generally supposed. We apprehend that a Saxon population, under the same conditions as the southern and western Irish peasantry, would have grown up into very much the same sort of people as the Irish have been; while a Keltic population, exposed to the same influences, through successive generations, as the midland and southern peasantry of England, would not have been essentially different at the present day from the actual cultivators of the soil.

'The Irish peasant is poorer and yet more reckless than the Englishman; but he is not so sullen or so spiritless. His body is not so muscular or so strongly-set as that of the Anglo-Saxon husbandman, on whose frame the hard and unintermitted toil of thirty generations has stamped its unmistakable impress, and, correspondently, he is a less persevering and less vigorous labourer; but, as a general rule, his stature is taller and his step far more free and elastic than that of the sturdy but slow and stunted labourer of our southern counties. There are wild mountainous districts of the west, indeed, in which the lowest type of the Irish peasantry is found, that must be taken as exceptions to our general statement; and as many from those regions cross the Channel to tramp through England in the complex character of mendicant labourers, no doubt some have received from them an impression as to the Irish peasantry very different from what our observations are intended to convey. But no one can have travelled through the south of Ireland without having noticed what we state. The Tipperary and Kilkenny peasantry are proverbially tall; Connemara has been famed for its "giants," and many of both sexes throughout the south, are, spite of their rags, fine figures, and graceful in their movements. While looking at them, we have ceased to wonder at what has been regarded as no better than the arch-agitator's blarney, when he spoke of the Irish as the "finest pisantry in the world;" and we have even felt saddened as we mentally contrasted with what we saw before us the bearing and appearance of our own southern labourers. For the tattered Irish peasant, living in a mud hovel, is, after all, a gentleman in his bearing; whereas there is generally either a cringing servility or a sullen doggedness in the demeanour of the south Saxon labourer. The Irishman is, besides, far more intelligent and ready-witted than the Saxon husbandman. The fact is that the Irishman, if underfed, has not been overworked. His life has not been one of unceasing and oppressive labour. Nor has his condition been one of perpetual servitude. With all his poverty, he has been, to a considerable extent, his own master. Half-starved, or satisfying his appetite on light and innutritious fare,—far worse housed and clad than the poorest English labourer, often, indeed, almost half-naked,—oppressed by middle-men, exactors of rack-rent; with all this the Irish cottier has been, from father to son, and from generation to generation, a tenant, and not merely a day labourer.'[¹]

Footnote 1: [(return)]

'Essays for the Times, on Ecclesiastical and Social Subjects,' by James H. Rigg, D.D. London, 1866.