Penal law
From Free net encyclopedia
- This article is about penal law as understood in the English law system. For a more general article, see criminal law.
In the most general sense, penal is the body of laws that are enforced by the State in its own name and impose penalties for their violation, as opposed to civil law that seeks to redress private wrongs. This usage is synonymous with criminal law and is covered in that article.
In some jurisdictions, such as Canada, penal law is distinct from criminal law even if it encompasses this last field. This is a result of federalism; only the federal Parliament has the legislative power to enact criminal law statutes, yet provinces can also attach penal dispositions to their non-criminal statutes so they will be respected.
More specifically, the Penal laws were a set of laws which punished nonconformism in the United Kingdom.
Contents |
English statutes on religious nonconformity
In English history, penal law refers to a specific series of laws that sought to uphold the establishment of the Church of England against Protestant nonconformists and Roman Catholics, by imposing various forfeitures, civil penalties, and civil disabilities upon these dissenters. Some examples of these laws are:
- the law of praemunire, 14th century
- the series of Test Acts
- Conventicle Act 1664
- Five Mile Act 1665
- Act of Uniformity
- Education Act 1695
- Disarming Act 1695
- Marriage Act 1697
- Banishment Act 1697
- Registration Act 1704
- Popery Act 1704 and 1709
- Occasional Conformity Act 1711
- Disenfranchising Act 1728
While some of the Penal Laws were much older, they took their most drastic shape during the reign of Charles II, when they became known as the Clarendon Code, after Edward Hyde, 1st Earl of Clarendon, their author.
In Irish history
In Ireland, these laws were put into force in the early 1600s. They had a pronounced effect, disenfranchising the majority of the Irish population, who were Roman Catholic or Presbyterian and in favour of the much smaller official Church of Ireland. Though the laws affected adherents of the Presbyterian Church in Ireland (who were concentrated in Ulster), its principal victims were members of the Roman Catholic Church, meaning over three quarters of the people on the island. The British had punished the faith of the overwhelming majority of the "mere Irish" (in contemporary English, 'mere' meant 'pure' or 'fully').
Initially, English monarchs were cautious about applying the Penal Laws to Ireland because they needed the support of the Roman Catholic upper classes to put down Gaelic Irish rebellion in the Nine Years War. In addition, a significant section of the Roman Catholic aristocracy was Old English who had traditionally been loyal to English rule in Ireland. However, from 1607, Roman Catholics were barred from holding public office or serving in the army. In 1613, the constituencies of the Irish Parliament were altered to give Protestant settlers a majority in it. In addition, Roman Catholics were fined and had land confiscated for non-attendance at Protestant services. (See also Plantations of Ireland). Roman Catholic churches were transferred to the Protestant Church of Ireland. Roman Catholic services, however, were generally tacitly tolerated as long as they were conducted in private. Roman Catholic priests were also tolerated, but Bishops (who were usually trained in Roman Catholic Europe) had to conceal their presence in the country.
Roman Catholic resentment eventually boiled over into the Irish Rebellion of 1641. This rebellion was marked by the massacre of Protestants and was eventually put down with great brutality in the Cromwellian conquest of Ireland 1649-53. After this point, Roman Catholics were barred from membership in the Irish Parliament, had most of their lands confiscated and were even banned from living in towns for a short period. See also Act of Settlement 1652. Roman Catholic clergy were expelled from the country and exectuted where captured. Some of this legislation was rescinded after the English Restoration, but a comprehensive series of Penal Laws were passed after the Roman Catholic Jacobite defeat in the Williamite war in Ireland 1689-91.
Among the discriminations faced by victims of the Penal Laws were:
- Holding public office from 1607. Presbyterians were also barred form public from 1707.
- Bearing arms or serving in the armed forces up to the 1790s
- Exclusion from membership in either the Parliament of Ireland or the Parliament of Great Britain from 1652, rescinded 1688, reinstated 1691;
- Exclusion from voting after 1727;
- Exclusion from certain professions, including law.
- Severe property restrictions, notably
- The ability of any man to take over a relation's property by converting to the Church of Ireland
- Prohibition on owning a horse valued at over £5 (in order to keep horses suitable for military activity out of the majority's hands)
- The subdivision of lands between all an owner's sons - in order to reduce the size of Roman Catholic landholdings.
- Roman Catholic lay priests were tolerated, but seminary priests and Bishops were not. Roman Catholic masses were conducted in secret in rural locations.
According to the "Act to prevent the further growth of popery", Irish Roman Catholics were also prohibited:
- Intermarriage with Protestants
- Converting from Protestantism to Roman Catholicism
- The custom of going to France (a Roman Catholic country) to be educated or for military career after 1745.
- Catholics buying their own land
- Custody of orphans being granted to Catholics
- Catholics inheriting Protestant land
Historians disagree over whether the Penal Laws were a tool of political as opposed to religious repression. Some argue that they were intended make the native Catholic population powerless and easy to control. Others argue that it was intended to convert the Irish en masse to the Protestant faith. (Of course, in the absence of separation of church and state the distinction between political and religious repression becomes largely moot.)
The position of the Protestant Ascendancy depended on their status as privileged minority and there was therefore no incentive for them to convert the rest of the population. There was little effort made to convert the population to Anglicanism event though the Book of Common Prayer was first translated into Irish in 1608. In spite of this, no major attempt was made by Protestants to proseletyse in Irish until the early 19th century. However, some conversion from Roman Catholicism to Protestantism occurred sporadically, especially among the gentry. At times, one member of a Roman Catholic gentry family would convert to keep the family's lands intact. Some Protestants questioned the sincerity of such conversions.
The Penal Laws were gradually repealed at the end of the eighteenth century and beginning of the nineteenth century, beginning in the 1780s. The final remaining penal laws, regarding voting or holding public office were repeaeled in the 1830s, due in large part to Daniel O'Connell. After the laws were repealed he became known as 'The Emancipator'. However, the hated obligation of all working people to pay tithes to the Church of Ireland, irrespective of their religion, remained and resulted in a violent campaign of non-payment known as the Tithe War. This burden remained until the disestablishment of the Anglican Church in 1869.