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.]