Chapter XVIII · ON THE CONSTITUTION OF IRELAND (continued 2)

It is more easy to censure the particular inequalities, or even, in some respects, injustice of the act of settlement, than to point out what better course was to have been adopted. The readjustment of all private rights after so entire a destruction of their landmarks could only be effected by the coarse process of general rules. Nor does it appear that the catholics, considered as a great mass, could reasonably murmur against the confiscation of half their estates, after a civil war wherein it is evident that so large a proportion of themselves were concerned.[554] Charles, it is true, had not been personally resisted by the insurgents; but, as chief of England, he stood in the place of Cromwell, and equally represented the sovereignty of the greater island over the lesser, which under no form of government it would concede.

The catholics, however, thought themselves oppressed by the act of settlement; and could not forgive the Duke of Ormond for his constant regard to the protestant interests, and the supremacy of the English Crown. They had enough to encourage them in the king's bias towards their religion, which he was able to manifest more openly than in England. Under the administration of Lord Berkely in 1670, at the time of Charles's conspiracy with the King of France to subvert religion and liberty, they began to menace an approaching change, and to aim at revoking, or materially weakening, the act of settlement. The most bigoted and insolent of the popish clergy, who had lately rejected with indignation an offer of more reasonable men to renounce the tenets obnoxious to civil governments, were countenanced at Dublin; but the first alarm of the new proprietors, as well as the general apprehension of the court's designs in England, soon rendered it necessary to desist from the projected innovations.[555] The next reign, of course, reanimated the Irish party; a dispensing prerogative set aside all the statutes; every civil office, the courts of justice, and the privy council, were filled with catholics; the protestant soldiers were disbanded; the citizens of that religion were disarmed; the tithes were withheld from their clergy; they were suddenly reduced to feel that bitter condition of a conquered and proscribed people, which they had long rendered the lot of their enemies.[556] From these enemies, exasperated by bigotry and revenge, they could have nothing but a full and exceeding measure of retaliation to expect; nor had they even the last hope that an English king, for the sake of his Crown and country, must protect those who formed the strongest link between the two islands. A man violent and ambitious, without superior capacity, the Earl of Tyrconnel, lord lieutenant in 1687, and commander of the army, looked only to his master's interests, in subordination to those of his countrymen, and of his own. It is now ascertained that, doubtful of the king's success in the struggle for restoring popery in England, he had made secret overtures to some of the French agents for casting off all connection with that kingdom, in case of James's death, and, with the aid of Louis, placing the crown of Ireland on his own head.[557]

War of 1689, and final reduction of Ireland.—The revolution in England was followed by a war in Ireland of three years' duration, and a war on both sides, like that of 1641, for self-preservation. In the parliament held by James at Dublin in 1690, the act of settlement was repealed, and above 2000 persons attainted by name; both, it has been said, perhaps with little truth, against the king's will, who dreaded the impetuous nationality that was tearing away the bulwarks of his throne.[558] But the magnanimous defence of Derry and the splendid victory of the Boyne restored the protestant cause; though the Irish, with the succour of French troops, maintained for two years a gallant resistance, they could not ultimately withstand the triple superiority of military talents, resources, and discipline. Their bravery, however, served to obtain the articles of Limerick on the surrender of that city; conceded by their noble-minded conqueror, against the disposition of those who longed to plunder and persecute their fallen enemy. By the first of these articles, "the Roman catholics of this kingdom shall enjoy such privileges in the exercise of their religion as are consistent with the laws of Ireland, or as they did enjoy in the reign of King Charles II.; and their majesties, as soon as their affairs will permit them to summon a parliament in this kingdom, will endeavour to procure the said Roman catholics such further security in that particular as may preserve them from any disturbance upon the account of their said religion." The second secures to the inhabitants of Limerick and other places then in possession of the Irish, and to all officers and soldiers then in arms, who should return to their majesties' obedience, and to all such as should be under their protection in the counties of Limerick, Kerry, Clare, Galway, and Mayo, all their estates, and all their rights, privileges, and immunities, which they held in the reign of Charles II., free from all forfeitures or outlawries incurred by them.[559]

This second article, but only as to the garrison of Limerick or other persons in arms, is confirmed by statute some years afterwards.[560] The first article seems, however, to be passed over. The forfeitures on account of the rebellion, estimated at 1,060,792 acres, were somewhat diminished by restitutions to the ancient possessors under the capitulation; the greater part were lavishly distributed to English grantees.[561] It appears from hence, that at the end of the seventeenth century, the Irish or Anglo-Irish catholics could hardly possess above one-sixth or one-seventh of the kingdom. They were still formidable from their numbers and their sufferings; and the victorious party saw no security but in a system of oppression, contained in a series of laws during the reigns of William and Anne, which have scarce a parallel in European history, unless it be that of the protestants in France, after the revocation of the edict of Nantes, who yet were but a feeble minority of the whole people. No papist was allowed to keep a school, or to teach in any private houses, except the children of the family.[562] Severe penalties were denounced against such as should go themselves or send others for education beyond seas in the Romish religion; and, on probable information given to a magistrate, the burthen of proving the contrary was thrown on the accused; the offence not to be tried by a jury, but by justices at quarter sessions.[563] Intermarriages between persons of different religion, and possessing any estate in Ireland, were forbidden; the children, in case of either parent being protestant, might be taken from the other, to be educated in that faith.[564] No papist could be guardian to any child; but the court of chancery might appoint some relation or other person to bring up the ward in the protestant religion.[565] The eldest son, being a protestant, might turn his father's estate in fee simple into a tenancy for life, and thus secure his own inheritance. But if the children were all papists, the father's lands were to be of the nature of gavel-kind, and descend equally among them. Papists were disabled from purchasing lands, except for terms of not more than thirty-one years, at a rent not less than two-thirds of the full value. They were even to conform within six months after any title should accrue by descent, devise, or settlement, on pain of forfeiture to the next protestant heir; a provision which seems intended to exclude them from real property altogether, and to render the others almost supererogatory.[566] Arms, says the poet, remain to the plundered; but the Irish legislature knew that the plunder would be imperfect and insecure while arms remained; no papist was permitted to retain them, and search might be made at any time by two justices.[567] The bare celebration of catholic rites was not subjected to any fresh penalties; but regular priests, bishops, and others claiming jurisdiction, and all who should come into the kingdom from foreign parts, were banished on pain of transportation, in case of neglecting to comply, and of high treason in case of returning from banishment. Lest these provisions should be evaded, priests were required to be registered; they were forbidden to leave their own parishes; and rewards were held out to informers who should detect the violations of these statutes, to be levied on the popish inhabitants of the country.[568] To have exterminated the catholics by the sword, or expelled them, like the Moriscoes of Spain, would have been little more repugnant to justice and humanity, but incomparably more politic.

Dependence of the Irish upon the English parliament.—It may easily be supposed, that no political privileges would be left to those who were thus debarred of the common rights of civil society. The Irish parliament had never adopted the act passed in the 5th of Elizabeth, imposing the oath of supremacy on the members of the Commons. It had been full of catholics under the queen and her two next successors. In the second session of 1641, after the flames of rebellion had enveloped almost all the island, the House of Commons were induced to exclude, by a resolution of their own, those who would not take that oath; a step which can only be judged in connection with the general circumstances of Ireland at that awful crisis.[569] In the parliament of 1661, no catholic, or only one, was returned;[570] but the house addressed the lords justices to issue a commission for administering the oath of supremacy to all its members. A bill passed the Commons in 1663, for imposing that oath in future, which was stopped by a prorogation; and the Duke of Ormond seems to have been adverse to it.[571] An act of the English parliament after the revolution, reciting that "great disquiet and many dangerous attempts have been made to deprive their majesties and their royal predecessors of the said realm of Ireland by the liberty which the popish recusants there have had and taken to sit and vote in parliament," requires every member of both houses of parliament to take the new oaths of allegiance and supremacy, and to subscribe the declaration against transubstantiation before taking his seat.[572] This statute was adopted and enacted by the Irish parliament in 1782, after they had renounced the legislative supremacy of England under which it had been enforced. The elective franchise, which had been rather singularly spared in an act of Anne, was taken away from the Roman catholics of Ireland in 1715; or, as some think, not absolutely till 1727.[573]

These tremendous statutes had in some measure the effect which their framers designed. The wealthier families, against whom they were principally levelled, conformed in many instances to the protestant church.[574] The catholics were extinguished as a political body; and, though any willing allegiance to the house of Hanover would have been monstrous, and it is known that their bishops were constantly nominated to the pope by the Stuart princes,[575] they did not manifest at any period, or even during the rebellions of 1715 and 1745, the least movement towards a disturbance of the government. Yet for thirty years after the accession of George I. they continued to be insulted in public proceedings under the name of the common enemy, sometimes oppressed by the enactment of new statutes, or the stricter execution of the old; till in the latter years of George II. their peaceable deportment, and the rise of a more generous spirit among the Irish protestants, not only sheathed the fangs of the law, but elicited expressions of esteem from the ruling powers, which they might justly consider as the pledge of a more tolerant policy. The mere exercise of their religion in an obscure manner had long been permitted without molestation.[576]

Thus in Ireland there were three nations, the original natives, the Anglo-Irish, and the new English; the two former catholic, except some chiefly of the upper classes, who had conformed to the church; the last wholly protestant. There were three religions, the Roman catholic, the established or Anglican, and the presbyterian; more than one-half of the protestants, according to the computation of those times, belonging to the latter denomination.[577] These however in a less degree were under the ban of the law as truly as the catholics themselves; they were excluded from all civil and military offices by a test act, and even their religious meetings were denounced by penal statutes. Yet the House of Commons after the revolution always contained a strong presbyterian body, and unable, as it seems, to obtain an act of indemnity for those who had taken commissions in the militia, while the rebellion of 1715 was raging in Great Britain, had recourse to a resolution, that whoever should prosecute any dissenter for accepting such a commission is an enemy to the king and the protestant interest.[578] They did not even obtain a legal toleration till 1720.[579] It seems as if the connection of the two islands, and the whole system of constitutional laws in the lesser, subsisted only for the sake of securing the privileges and emoluments of a small number of ecclesiastics, frequently strangers, who rendered very little return for their enormous monopoly. A great share, in fact, of the temporal government under George II. was thrown successively into the hands of two primates, Boulter and Stone; the one a worthy but narrow-minded man, who showed his egregious ignorance of policy in endeavouring to promote the wealth and happiness of the people, whom he at the same time studied to depress and discourage in respect of political freedom; the other an able, but profligate and ambitious statesman, whose name is mingled, as an object of odium and enmity, with the first great struggles of Irish patriotism.

The new Irish nation, or rather the protestant nation, since all distinctions of origin have, from the time of the great rebellion, been merged in those of religion, partook in large measure of the spirit that was poured out on the advocates of liberty and the revolution in the sister kingdom. Their parliament was always strongly whig, and scarcely manageable during the later years of the queen. They began to assimilate themselves more and more to the English model, and to cast off by degrees the fetters that galled and degraded them. By Poyning's celebrated law, the initiative power was reserved to the English council. This act, at one time popular in Ireland, was afterwards justly regarded as destructive of the rights of their parliament, and a badge of the nation's dependence. It was attempted by the Commons in 1641, and by the catholic confederates in the rebellion, to procure its repeal; which Charles I. steadily refused, till he was driven to refuse nothing. In his son's reign, it is said that "the council framed bills altogether; a negative alone on them and their several provisoes was left to parliament; only a general proposition for a bill by way of address to the lord lieutenant and council came from parliament; nor was it till after the revolution that heads of bills were presented; these last in fact resembled acts of parliament or bills, with only the small difference of 'We pray that it may be enacted,' instead of 'Be it enacted.'"[580] They assumed about the same time the examination of accounts, and of the expenditure of public money.[581]

Meanwhile, as they gradually emancipated themselves from the ascendancy of the Crown, they found a more formidable power to contend with in the English parliament. It was acknowledged, by all at least of the protestant name, that the Crown of Ireland was essentially dependent on that of England, and subject to any changes that might affect the succession of the latter. But the question as to the subordination of her legislature was of a different kind. The precedents and authorities of early ages seem not decisive; so far as they extend, they rather countenance the opinion that English statutes were of themselves valid in Ireland. But from the time of Henry VI. or Edward IV. it was certainly established that they had no operation, unless enacted by the Irish parliament. This however would not legally prove that they might not be binding, if express words to that effect were employed; and such was the doctrine of Lord Coke and of other English lawyers. This came into discussion about the eventful period of 1641. The Irish in general protested against the legislative authority of England, as a novel theory which could not be maintained;[582] and two treatises on the subject, one ascribed to Lord Chancellor Bolton, or more probably to an eminent lawyer, Patrick Darcy, for the independence of Ireland, another, in answer to it, by Serjeant Mayart, may be read in the Hibernica of Harris.[583] Very few instances occurred before the revolution, wherein the English parliament thought fit to include Ireland in its enactments, and none perhaps wherein they were carried into effect. But after the revolution several laws of great importance were passed in England to bind the other kingdom, and acquiesced in without express opposition by its parliament. Molyneux, however, in his celebrated Case of Ireland's being bound by Acts of Parliament in England stated, published in 1697, set up the claim of his country for absolute legislative independency. The House of Commons at Westminster came to resolutions against this book; and, with their high notions of parliamentary sovereignty, were not likely to desist from a pretension which, like the very similar claim to impose taxes in America, sprung in fact from the semi-republican scheme of constitutional law established by means of the revolution.[584] It is evident that while the sovereignty and enacting power was supposed to reside wholly in the king, and only the power of consent to the two houses of parliament, it was much less natural to suppose a control of the English legislature over other dominions of the Crown, having their own representation for similar purposes, than after they had become, in effect and in general sentiment, though not quite in the statute-book, co-ordinate partakers of the supreme authority. The Irish parliament, however, advancing as it were in a parallel line, had naturally imbibed the same sense of its own supremacy, and made at length an effort to assert it. A judgment from the court of exchequer in 1719 having been reversed by the House of Lords, an appeal was brought before the Lords in England, who affirmed the judgment of the exchequer. The Irish Lords resolved that no appeal lay from the court of exchequer in Ireland to the king in parliament in Great Britain; and the barons of that court having acted in obedience to the order of the English Lords, were taken into the custody of the black rod. That house next addressed the king, setting forth their reasons against admitting the appellant jurisdiction. But the Lords in England, after requesting the king to confer some favour on the barons of the exchequer who had been censured and illegally imprisoned for doing their duty, ordered a bill to be brought in for better securing the dependency of Ireland upon the Crown of Great Britain, which declares "that the king's majesty, by and with the advice and consent of the Lords spiritual and temporal and Commons of Great Britain, in parliament assembled, had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the people and the kingdom of Ireland; and that the House of Lords of Ireland have not, nor of right ought to have, any jurisdiction to judge of, reverse, or affirm any judgment, sentence, or decree given or made in any court within the said kingdom; and that all proceedings before the said House of Lords upon any such judgment, sentence, or decree, are, and are hereby declared to be, utterly null and void, to all intents and purposes whatsoever."[585]

The English government found no better method of counteracting this rising spirit of independence than by bestowing the chief posts in the state and church on strangers, in order to keep up what was called the English interest.[586] This wretched policy united the natives of Ireland in jealousy and discontent, which the latter years of Swift were devoted to inflame. It was impossible that the kingdom should become, as it did under George II., more flourishing through its great natural fertility, its extensive manufacture of linen, and its facilities for commerce, though much restricted (the domestic alarm from the papists also being allayed by their utter prostration), without writhing under the indignity of its subordination; or that a House of Commons, constructed so much on the model of the English, could hear patiently of liberties and privileges it did not enjoy. These aspirations for equality first, perhaps, broke out into audible complaints in the year 1753. The country was in so thriving a state that there was a surplus revenue after payment of all charges. The House of Commons determined to apply this to the liquidation of a debt. The government, though not unwilling to admit of such an application, maintained that the whole revenue belonged to the king, and could not be disposed of without his previous consent. In England, where the grants of parliament are appropriated according to estimates, such a question could hardly arise; nor would there, I presume, be the slightest doubt as to the control of the House of Commons over a surplus income. But in Ireland, the practice of appropriation seems never to have prevailed, at least so strictly;[587] and the constitutional right might perhaps not unreasonably be disputed. After long and violent discussions, wherein the speaker of the Commons and other eminent men bore a leading part on the popular side, the Crown was so far victorious as to procure some motions to be carried, which seemed to imply its authority; but the house took care, by more special applications of the revenue, to prevent the recurrence of an undisposed surplus.[588] From this era the great parliamentary history of Ireland begins, and is terminated after half a century by the union: a period fruitful of splendid eloquence, and of ardent, though not always uncompromising, patriotism; but which, of course, is beyond the limits prescribed to these pages.