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

20,000 l. 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 30 l. 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, 50 l.; for discovering each regular clergyman, and each

secular clergyman, not registered, 20 l.; and for discovering each

Popish schoolmaster or usher, 10 l.

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 81,978 l., or 14 s. 5 d. per

head; and there were eighty parishes in three other counties, the

population of which was 105,728, and the poor-law expenditure 30,820

l., or 5 s. 9 d. 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 10 l. 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 10 l.

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 15 s. a week,

to one where he could earn but 10 s. 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 9 s. a week

wages, required nine gallon loaves, or 13 s. 6 d. a week, so that he

had a pension of 4 s. 6 d. 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 12 s. 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 40 l. and 50 l. 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 10 s. 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 100 l. to 250 l.

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: 'Essays for the Times, on Ecclesiastical and Social

Subjects,' by James H. Rigg, D.D. London, 1866.]

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