CHICHESTER AND THE TOLERATION QUESTION, 1605-1607
[Sidenote: The rival Churches.]
The question of religious toleration was one of the first which
Chichester had to consider, for the movement in the Munster towns was
felt all over Ireland. Priests and Jesuits swarmed everywhere, and John
Skelton on being elected Mayor of Dublin refused after much fencing to
take the oath of supremacy. Sir John Davies, who had yet much to learn
in Ireland, thought that the people would quickly conform if only the
priests were banished by proclamation. Saxey, chief justice in Munster,
was much of the same opinion, but both these lawyers admitted the
insufficiency of the Established Church. The bishops, among whom there
were scarcely three good preachers, seemed to them more anxious about
their revenues than about the saving of souls.
[Sidenote: The penal laws against Recusant]
The experience of James's only Irish Parliament was to show it was
scarcely possible to legislate against the Roman Catholics even when
many new boroughs had been created for the express purpose of making
a Protestant majority. The Act of Uniformity passed at the beginning
of Elizabeth's reign remained in force, but little was done under it
as long as she lived. It only provided a fine of one shilling for not
attending church on Sundays and holidays, and could have little effect
except upon the poor, though it might give great annoyance. Another Act
prescribed an oath acknowledging the Queen's supremacy, both civil and
ecclesiastical, and denying that any 'foreign prince, person, prelate,
State, or potentate hath or ought to have any jurisdiction,' &c. This
oath might be administered to all ecclesiastical persons, to judges,
justices, and mayors, and to all others in the pay of the Crown on
pain of losing their offices. The open maintenance and advocacy of
foreign authority was more severely visited, the penalties being the
forfeiture of all goods and chattels, real and personal, with a year's
imprisonment in addition, for those not worth 20_l._ The second offence
was a præmunire, and the third high treason. And so the law remained
during the whole reign of James. The English oath of allegiance
prescribed after the Gunpowder Plot involved a repudiation of the
Pope's deposing power; but this was not extended to Ireland.[17]
[Sidenote: Power of the priesthood.]
[Sidenote: Case of the Jesuit Fitzsimon.]
The repressive power in the hands of the Irish Government was weak
as against the population in general, but so far as law went it was
ample against the priests, who, of course, could not take the oath of
supremacy; and against officials who were of the same way of thinking.
Mountjoy was successful against the recalcitrant towns, but his back
was no sooner turned than Sir George Carey reported that the country
swarmed with 'priests, Jesuits, seminaries, friars, and Romish bishops;
if there be not speedy means to free this kingdom of this wicked
rabble, much mischief will burst forth in a very short time. There
are here so many of this wicked crew, as are able to disquiet four
of the greatest kingdoms in Christendom. It is high time they were
banished, and none to receive or aid them. Let the judges and officers
be sworn to the supremacy; let the lawyers go to the church and show
conformity, or not plead at the bar, and then the rest by degrees
will shortly follow.' Protestant bishops naturally agreed, though
Sir John Davies thought their own neglect had a good deal to say to
the matter; but he admitted that the Jesuits came 'not only to plant
their religion, but to withdraw the subject from his allegiance, and
so serve the turn of Tyrone and the King of Spain.' Now that Ireland
was at peace, he thought it probable that they would gladly go away,
and cites the case of Fitzsimon, a Jesuit who had petitioned to be
banished. Fitzsimon, however, had been five years a prisoner in the
Castle, during one month of which he had converted seven Protestants,
including the head warder. The King released him mainly on the
ground that he did not meddle in secular matters, and he was on the
Continent till 1630, when he returned to Ireland and lived there till
long after the great outbreak of 1641. About the time of Fitzsimon's
release the Protestant Bishop of Ossory was able to give the names of
thirty priests who haunted his diocese, including the famous Jesuit
James Archer, who was said to have legatine authority. Archer was
closely connected with Tyrone, and had been his frequent companion in
London, disguised as a courtier or as a farmer, and busy with Irish
prisoners in the Tower. Davies advised that priests and Jesuits should
be captured when possible and sent to England, where the penal laws
could take hold of them; and if this were done, he thought all Ireland
would go comfortably to church. Chief Justice Saxey gave much the
same advice in a more truculent form. The opinions of all Englishmen
officially concerned with Ireland are reflected in the King's famous
proclamation of July 4, 1605, which Chichester, who had then succeeded
to the government, found awaiting him in Dublin on his return from the
north.[18]
[Sidenote: Royal Proclamation against Toleration.]
James begins by repudiating the idea prevailing in Ireland since the
Queen's death that he intended 'to give liberty of conscience or
toleration of religion to his subjects in that kingdom contrary to the
express laws and statutes therein enacted.' He insisted everywhere on
uniformity, resenting all rumours to the contrary as an imputation
on himself, and even, as was reported, declaring that he would fight
to his knees in blood rather than grant toleration. Owing to false
rumours, the Jesuits and other priests of foreign ordination had left
their lurking-places and presumptuously exercised their functions
without concealment. The King therefore announced that he would never
do any act to 'confirm the hopes of any creature that they should ever
have from him any toleration to exercise any other religion than that
which is agreeable to God's Word and is established by the laws of
the realm.' All subjects were therefore charged to attend church or to
suffer the penalties provided. As to the Jesuits and others who sought
to alienate their hearts from their sovereign, 'taking upon themselves
the ordering and deciding of causes, both before and after they have
received judgments in the King's courts of record ... all priests
whatsoever made and ordained by any authority derived or pretended to
be derived from the See of Rome shall, before the 10th day of December,
depart out of the kingdom of Ireland.' All officers were to apprehend
them and no one to harbour them, on pain of the punishments provided
by law. If, however, any such Jesuit or priest would come to the Lord
Lieutenant or Council, conform, and repair to church, he was to have
the same liberties and privileges as the rest of his Majesty's subjects.
[Sidenote: The Proclamation fails.]
Devonshire, however, who was still Lord Lieutenant, was opposed to
making any curious search for priests who did not ostentatiously
obstruct the Government, and his views prevailed with the English
Council. Chichester willingly acquiesced, and reported some weeks
after the appointed day that no priests, seminaries, or Jesuits of any
importance had left the country and that searches, even if desirable,
would be useless, 'for every town, hamlet, or house is to them a
sanctuary.' Just about Carrickfergus, where he was personally known,
some secular priests had conformed, and Davies, who thought Government
could do everything, believed the multitude would naturally follow.
'So it happened,' he said, 'in King Edward the Sixth's days, when more
than half the kingdom of England were Papists; and again in the time of
Queen Mary, when more than half the kingdom were Protestants; and again
in Queen Elizabeth's time, when they were turned Papists again.' He did
not see that the national sentiment of England was permanently hostile
to Roman aggression, while the authority of the Crown was accepted as
the only refuge against anarchy. The state of feeling which existed in
Ireland was just the opposite.[19]
[Sidenote: Sir John Everard's case.]
Sir John Everard, second justice of the King's Bench, was ordered to
conform or resign, though admitted to be a very honest and learned
man. It was so difficult to find a successor for this able judge that
he was continued in office for eighteen months after the King's order,
when he resigned rather than take the oath of supremacy. Of his loyalty
in civil matters there was no question, and he received a pension of
a hundred marks, which Chichester wished to make a hundred pounds. In
1608, when the Irish refugees in Spain contemplated a descent upon
Ireland, Everard refused to take part in the plot, and he lived to
contest the Speakership with Sir John Davies in the Parliament of
1613.[20]
[Sidenote: Vacillation of Government.]
December passed, and yet none of the priests had left the country.
The Gunpowder Plot was discovered in the meantime, but there was no
evidence of ramifications in Ireland, and the English Government
half drew back from the policy of the late royal proclamation. It
was decided, and apparently at Chichester's suggestion, that no
curious search should be made for clergymen of foreign ordination.
The immediate result of the severe measures taken in England was to
drive the Jesuits and other priests over to Ireland, where the law was
weaker and less perfectly enforced, and where they were sure of a good
reception.
[Sidenote: Robert Lalor's case, 1606.]
[Sidenote: Præmunire.]
[Sidenote: Submission of Lalor.]
Robert Lalor, who had for twelve years acted as Vicar-General in
Dublin, Kildare, and Ferns, was, however, arrested. He had powerful
connections in the Pale, and it was thought that his prosecution might
strike terror into others, more especially as he was a party to many
settlements of land. Lalor was convicted under the Irish Act of 1560
as an upholder of foreign jurisdiction in matters ecclesiastical, and
remained in prison for some months. He then petitioned the Deputy for
his liberty, and was induced to confess in writing that he was not
a lawful Vicar-General, that the King was supreme governor, without
appeal, 'in all causes as well ecclesiastical and civil,' and that he
was ready to obey him 'either concerning his function of priesthood,
or any other duty belonging to a good subject.' After this his
imprisonment was greatly relaxed, and he was allowed to see visitors
freely, to whom he boasted that he had not allowed the King any power
in spiritual causes. It was then resolved to indict him under the
Statute of Præmunire (16 Richard II.), which was of undoubted force
in Ireland, for receiving a papal commission, for assuming the office
so conferred, and for exercising every kind of episcopal jurisdiction
under it, especially 'by instituting divers persons to benefices with
cure of souls, by granting dispensations in causes matrimonial, and
by pronouncing sentences of divorce between divers married persons.'
The case was tried by a Dublin city jury, and all the principal
gentlemen in town were present as spectators. Lalor tried to draw a
distinction between ecclesiastical and spiritual, but this was quickly
overruled, and his former confession was read out in open court.
Davies went into the legal argument at great length, and in the end
Lalor was fain to renounce the office of Vicar-General and to crave
the King's pardon. The jury then found the prisoner guilty, and in the
absence of Chief Justice Ley, Sir Dominick Sarsfield gave judgment
accordingly. Part of the penalty was the forfeiture of goods, and this
was important, because the Earl of Kildare and other great proprietors
had used the late Vicar-General's services as a trustee, and the Crown
lawyers had thus a powerful engine placed in their hands. Lalor was
probably banished according to law, as his name disappears from the
State correspondence. He had ceased to be of any importance, for his
confession destroyed his influence with the recusants.[21]
[Sidenote: Enforced conformity.]
[Sidenote: The Mandates.]
[Sidenote: Effect of the Gunpowder Plot.]
The Irish Statute of 1560 was the only one available for coercing the
laity, and its fine of one shilling, even when swelled by costs, was
altogether insufficient to impress the gentry or wealthier traders,
and it was resolved to eke it out by recourse to the prerogative pure
and simple. All men's eyes naturally turned to the seat of government,
and the first example was made there. Mandates under the Great Seal
were directed to sixteen aldermen and merchants, of whom Skelton, the
late mayor, was one, ordering them to go to church every Sunday and
holiday, 'and there to abide soberly and orderly during the time of
common prayer, preaching, or other service of God.' They refused upon
grounds of conscience, and the case was tried in the Castle Chamber.
During the proceedings and while the court was crowded, Salisbury's
dispatch arrived with the news of the Gunpowder Plot, and Chichester
ordered it to be read out by Bishop Jones, who had just been made Lord
Chancellor, and who took the opportunity to make a loyal speech. This
dramatic incident may or may not have influenced the decision which
imposed a fine of 100_l._ upon six aldermen and of 50_l._ each upon
three others, one of whom, being an Englishman, was ordered to return
to his own country. Five days later similar sentences were passed upon
three more, while three were reserved to try the effect of a conference
with Protestant theologians. One of the sixteen escaped altogether by
conforming to the established religion, and he was the only one who
did conform. This could not be thought a brilliant success, and the
mandates were soon subjected to a direct attack.[22]
[Sidenote: The Act Uniformity in Munster. Sir H. Brouncker.]
In the province of Munster, where Sir Henry Brouncker succeeded
Carew in the summer of 1604, a more energetic course was followed.
Brouncker had for many years farmed the customs of wine imported into
Ireland, and had probably in that way learned much of the underground
communications with Spain. He found Cork swarming with priests and
seminaries who said mass almost publicly in the best houses and
strenuously maintained that it was 'his Majesty's pleasure to tolerate
their idolatry.' For a time he was interrupted by the plague, but soon
resumed his efforts to fill the churches and to apprehend the priests
of Rome. His idea was to clear the towns while leaving the country
districts alone, but he had little success, for the proscribed clergy
were everywhere favoured and harboured in gentlemen's houses under
the name of surgeons and physicians. Brouncker maintained that he was
of a mild disposition, but that he was driven by the obstinacy of the
people to take sharp courses. In one circuit of his province he deposed
the chief magistrates in every town except Waterford, 'where the mayor
was conformable,' and he threatened them all with the loss of their
charters. He thought it possible to collect enough fines to make the
black sheep support the white.
[Sidenote: Priest-hunting.]
[Sidenote: The Mayor of Cork goes to church.]
At Limerick he captured Dr. Cadame, a notable priest long resident
there, but at Carrick-on-Suir two of the worst priests in Ireland just
eluded him. William Sarsfield, mayor of Cork, had been fined 100_l._
for disobedience to the mandates in the summer of 1606. The general
answer given by him and others in the same position was 'that their
forefathers had continued as they were in the Popish religion, and that
their consciences tied them to the same,' not one of them, according to
Brouncker's return, 'being able to define what conscience was.' Before
the year was out, the President was able to report that Sarsfield, in
spite of his Spanish education and his first stubbornness, had 'by
a little correction been brought to church, and so in love with the
word preached, and so well satisfied in conscience, that he offered to
communicate with him.' This sounds rather like a profane joke by a man
who had been brought up among the countrymen of Suarez and Escobar, and
in any case conformity so obtained was of little value. Bishop Lyon,
however, had done his duty in providing preachers in his diocese, and
perhaps some real progress might have been made if all bishops had been
like him. At all events there was a congregation of 600 at Youghal, and
some tendency to conformity was apparent even to Chichester's eyes.
Both President and Bishop received the thanks of the English Council,
and Salisbury encouraged Brouncker to persevere, but when he died
in the following spring James found that 'his zeal was more than was
required in a governor, however allowable in a private man.' It was
not easy to serve a sovereign who insisted on proclaiming the duty
of persecution while shrinking from the unpopularity which his own
words naturally produced. The fines imposed at Kinsale were altogether
remitted in regard to the poverty of the town, elsewhere they were much
reduced. The total, however, was considerable, while individuals were
'reasonably well contented' at escaping so easily.[23]
[Sidenote: The Mandates in Connaught.]
In Connaught Clanricarde had been made Lord President for his services
at Kinsale, and no doubt his influence had been increased by his
marriage to Essex's widow. He was in England at the end of 1605, and
Sir Robert Remington, the Vice-President, made some show of proceeding
like Brouncker. Mandates were issued and a few fines imposed upon
citizens of Galway, but these were not fully paid, and there is no
evidence that anything was done outside that single town.[24]
[Sidenote: Opposition to the Mandates. Sir P. Barnewall.]
[Sidenote: Barnewall and others imprisoned.]
[Sidenote: Sowing the dragon's teeth.]
A petition against interference 'with the private use of their religion
and conscience' was presented to the Lord Deputy, and signed by two
hundred and nineteen gentlemen of the Pale, of whom five were peers.
The principal framer of this document was probably Henry Burnell, the
lawyer, who was now very old, but who was still the same man who had
opposed Sidney thirty years before, and Richard Netterville, who had
then been his colleague. The chief promoter was Sir Patrick Barnewall,
who was Tyrone's brother-in-law, and from whose house of Turvey the
northern chief had eloped with Mabel Bagenal in 1591. According to
Carew, he was 'the first gentleman's son of quality that was ever put
out of Ireland to be brought up in learning beyond the seas.' The
petition was presented to Chichester by Sir James Dillon and others
during the last days of November, and an answer was soon pressed for.
The movement being evidently concerted, and Catesby's plot being very
recent, Burnell and Netterville were restrained in their own houses on
account of their infirmity, while Barnewall, Lord Gormanston, Dillon,
and others were imprisoned in the Castle. Gormanston and three other
peers forwarded a copy of the petition to Salisbury, and complained
bitterly of the severe measures which had been taken against the
aldermen for no offence but absence from the Protestant service. With
something of prophetic instinct Barnewall expressed a fear that the
Irish Government were laying the foundation of a rebellion, 'to which,
though twenty years be gone, the memory of those extremities may give
pretence.' Most of the prisoners were soon released on giving bonds to
appear when called upon, but Barnewall had to go to England.[25]
[Sidenote: Toleration not understood.]
[Sidenote: France.]
[Sidenote: Spain.]
[Sidenote: Germany.]
[Sidenote: Italy.]
[Sidenote: Bacon's advice.]
What we mean by toleration was nowhere understood in the early part of
the seventeenth century. Even Bacon, who admired the edict of Nantes,
which had not wiped out the memory of St. Bartholomew, had no idea of
abrogating the Elizabethan penal code. Henry IV.'s famous edict was an
exception; it was one of the kind that proves the rule, for he saw no
way of securing the French Protestants but by giving them a kind of
local autonomy which could not last. Rochelle was an impossibility in
a modern state, and when that frail bulwark was destroyed persecution
gradually resumed its sway. Of Spain, the birthplace and fixed home
of the Inquisition, it is unnecessary to speak. In Germany neither
party practised any real toleration. In Italy Spanish interests were
dominant, and Elizabeth died an excommunicated Queen. Clement VIII.
abstained from treating her successor in the same way, but he had hopes
by mildness to obtain better terms for the faithful in England. Both
in England and Ireland any intention of forcing men's consciences was
always disclaimed, while outward conformity was insisted on. And in
the case of the Roman Catholics, who took their orders from a foreign
and hostile power, it was really very difficult to say exactly how
much belonged to Cæsar. Bacon was more liberal than anyone else, but
his ideas fell very far short of what is now generally accepted. In
Ireland, he advised Cecil, after the Spaniards had been foiled at
Kinsale, 'a toleration of religion (for a time not definite), except
it be in some principal towns and precincts, after the manner of some
French edicts, seemeth to me to be a matter warrantable by religion,
and in policy of absolute necessity. And the hesitation in this point
I think hath been a great casting back of the affairs there. Neither
if any English Papist or recusant shall for liberty of his conscience
transfer his person, family, and fortunes thither do I hold it a
matter of danger, but expedient to draw on undertaking and to further
population. Neither if Rome will cozen itself, by conceiving it may be
some degree to the like toleration in England, do I hold it a matter
of any moment, but rather a good mean to take off the fierceness and
eagerness of the humour of Rome, and to stay further excommunications
or interdictions for Ireland.' Bacon saw the difficulty clearly, and
perhaps he saw the working solution, but to persevere steadily in such
a course was not in James's nature, though Chichester might conceivably
have done so if he had had a free hand.[26]
[Sidenote: Barnewall and Chichester.]
[Sidenote: Barnewall puzzles the Council.]
[Sidenote: Barnewall sent to England.]
[Sidenote: Victory of Barnewall]
Sir Patrick Barnewall was committed prisoner to the Castle on December
2, 1605. 'Well,' said he, 'we must endure as we have endured many
other things, and especially the miseries of the late war.' 'No,
sir,' answered Chichester, 'we have endured the misery of the war, we
have lost our blood and our friends, and have indeed endured extreme
miseries to suppress the late rebellion, whereof your priests, for
whom you make petition, and your wicked religion, was the principal
cause.' In writing to Salisbury afterwards Sir Patrick attributed the
invention of the mandates to Chief Justice Ley, but it is much more
likely that Davies was their author. After an imprisonment of three
months, Barnewall was again brought before the Irish Council, and
argued soundly in maintaining that recusancy was only an offence in so
far as it was made one by statute, and that therefore all prosecution
of it except that prescribed by Act of Parliament was illegal. At a
further examination when the Chancellor, who was a bishop and ought
to have known better, spoke of the King's religion, Barnewall saw
his advantage and exclaimed 'That is a profane speech.' He was not
sent to England till near the end of April, and at the end of May the
English Government had not yet found time to attend to him. At first
he was allowed to live under restraint at his own lodgings in the
Strand, but was afterwards sent to the Tower, probably with the idea
of making an impression upon the public mind in Ireland. It was found
impossible to answer his arguments, and the Privy Council asked the
Irish Government for information as to the 'law or precedent for the
course taken in issuing precepts under the Great Seal to compel men to
come to church.' They admitted that such authority was 'as yet unknown
to them,' but rather sarcastically supposed that the Lord Deputy and
Council were better informed. The Irish Government were acting entirely
by prerogative; but several of the judges in England pronounced the
mandates not contrary to precedent or authority. Barnewall was induced
to make some sort of submission more than a year after his original
arrest. Being called upon to make one in more regular form he refused,
and was then sent to the Fleet prison for a month. Having signed a bond
to appear within five days of his arrival, he was returned to Ireland
at the beginning of March, 1607, and Chichester at once saw that no
progress had been made.
[Sidenote: The Mandates are abandoned.]
Barnewall refused to make any submission in Dublin, and in the end it
was found necessary to drop all proceedings against him. His detention
in London was really a triumph, for the Irish recusants regarded him
as their agent, and subscribed largely for his support. Waterford
contributed 32_l._ and the collection was general all over Ireland. He
gained in fact a complete victory, and such progress as Brouncker had
made in procuring outward conformity was at once arrested. The mandates
were never again resorted to.[27]
FOOTNOTES:
[17] _Irish Statutes_, 2 Eliz. chaps. i. and ii. James I.'s Apology for
the Oath of Allegiance against the two breves of Pope Paulus Quintus,
&c., in his _Works_, 1616 (the oath is at p. 250).
[18] Enclosure in letter of John Byrd to Devonshire, September 8, 1603.
Archbishop of Dublin and Bishop of Meath to the Privy Council, March 5,
1604. Davies to Cecil, April 19 and December 8. Bishop of Ossory to the
Deputy and Council, June 8, 1604. Chief Justice Saxey to Cranbourne,
1604, No. 397. Hogan's _Life of H. Fitzsimon_, pp. 58 _sqq._
[19] Proclamation of July 4, 1605; Davies to Salisbury, No. 603 in Cal.
Lords of the Council to Chichester, January 24, 1606; Chichester to
Salisbury and to Chichester, February 26; Roger Wilbraham's Diary, in
vol. x. of the _Camden Miscellany_.
[20] Davies to Cecil, December 8, 1604, January 6, 1605; Saxey to
Cecil, 1604, No. 397; the King to Chichester, June 27, 1605; his
proclamation against toleration, July 4; Cornwallis to the Privy
Council, April 19, 1608, in _Winwood_.
[21] _The Case of Præmunire_ in Sir John Davies's Reports, London,
1628. Lalor was arrested in March 1605-6, and finally convicted early
in the following year.
[22] Lord Deputy and Council to the Privy Council, December 5, 1605;
Chichester to Salisbury, December 7.
[23] Brouncker to Cecil, August 23 and October 17, 1604; Salisbury to
Brouncker, March 3, 1606; Brouncker's letter of September 12; Return
of fines imposed 4 James I. printed in _Irish Cal._ ii. 41; Brouncker
to the Privy Council, November 18; Chichester to Salisbury, December
1, 1606, and February 10, 1607; The King to Chichester, July 16, 1607;
Privy Council to Chichester, January 17, 1608-9; Davies to Salisbury,
June 10, 1609.
[24] Brouncker to Cecil, August 23, 1604; observation by Sir John
Davies, May 4, 1606; Lord Deputy and Council to the Privy Council,
September 12, 1606; Brouncker to the Privy Council, February 10,
1606-7. For Connaught see preface to State Papers, _Ireland_,
1606-1608, p. 46.
[25] Chichester to Salisbury, December 7 and 9, 1605; petition by the
nobility and gentry of the English Pale, No. 593; Lords Gormanston,
Trimleston, Killeen, and Howth to Salisbury, December 8; Davies to
Salisbury, No. 603; Barnewall to Salisbury, December 16. Carew's Brief
Relation of passages in the Parliament of 1613 in _Carew_.
[26] Letter to Cecil, 1602, _Spedding_, iii. 49.
[27] Calendar of State Papers, _Ireland_, from December 1605 to
September 1607.