Penal law (British)

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 Catholicism by imposing various forfeitures, civil penalties, and civil disabilities upon these dissenters. The penal laws in general were repealed in the 19th century during the process of Catholic Emancipation. Penal actions are civil in nature and were not English common law.

Elizabethan
  • The Act of Supremacy 1558 (1 Eliz 1 c 1), confirmed Elizabeth as Supreme Governor of the Church of England, and imposed an Oath of Supremacy which required any person taking public or church office in England to swear allegiance to the monarch as Supreme Governor of the Church of England. It also made it a crime to assert the authority of any foreign prince, prelate, or other authority, and was aimed at abolishing the authority of the Pope in England. All who maintained the spiritual or ecclesiastical authority of any foreign prelate were to forfeit all goods and chattels, both real and personal, and all benefices for the first offence, or in case the value of these was below 20 pounds, to be imprisoned for one year; they were liable to the forfeitures of praemunire for the second offence. The penalties of praemunire were: exclusion from the sovereign's protection, forfeiture of all lands and goods, arrest to answer to the Sovereign and Council.[1]
  • The Act of Uniformity 1558 (1 Eliz 1 c 2) set the order of prayer to be used in the English Book of Common Prayer and required all persons to go to church once a week or be fined. It punished all clerics who used any other service by deprivation and imprisonment.[1]
  • The Supremacy of the Crown Act 1562 (5 Eliz 1 c 1) made a second offence of refusing to take the Oath of Supremacy treason.

Response to Regnans in Excelsis

In 1570 Pope Pius V excommunicated Queen Elizabeth I with the papal bull Regnans in Excelsis. In response:

  • 13 Eliz. c.1 made it high treason to affirm that the queen ought not to enjoy the Crown, or to declare her to be a heretic or schismatic; * 13 Eliz. c. 2, which made it high treason to put into effect any papal Bull of absolution, to absolve or reconcile any person to the Catholic Church, or to be so absolved or reconciled, or to procure or publish any papal Bull or writing whatsoever. The penalties of praemunire were enacted against all who brought into England or who gave to others "Agnus Dei" or articles blessed by the pope or by any one through faculties from him.
  • 13 Eliz. c. 3, was designed to stop Catholics from taking refuge abroad, and declared that any subject departing the realm without the queen's license, and not returning within six months, should forfeit the profits of his lands during life and all his goods and chattels.[1]
  • The Act to retain the Queen's Majesty's subjects in their obedience (23 Eliz. c. 1), passed in 1581. This made it high treason to reconcile anyone or to be reconciled to "the Romish religion", prohibited Mass under penalty of a fine of two hundred marks and imprisonment for one year for the celebrant, and a fine of one hundred marks and the same imprisonment for those who heard the Mass. This act also increased the penalty for not attending the Anglican service to the sum of twenty pounds a month, or imprisonment till the fine be paid, or till the offender went to the Anglican Church. A further penalty of ten pounds a month was inflicted on anyone keeping a schoolmaster who did not attend the Anglican service. The schoolmaster himself was to be imprisoned for one year.
  • An act against Jesuits, seminary priests, and such other like disobedient persons, (27 Eliz.1, c. 2) commanded all Roman Catholic priests to leave the country in 40 days or they be punished for high treason, unless within the 40 days they swore an oath to obey the Queen. Those who harbored them, and all those who knew of their presence and failed to inform the authorities would be fined and imprisoned, or where the authorities wished to make an example of them, they might be executed.[2] This statute, under which most of the English martyrs suffered, made it high treason for any Jesuit or any seminary priest to be in England at all, and felony for any one to harbour or relieve them. The penalties of praemunire were imposed on all who sent assistance to the seminaries abroad, and a fine of 100 pounds for each offence on those who sent their children overseas without the royal licence.

Clarendon Code

While some of the Penal Laws were much older, they took their most drastic shape during the reign of Charles II, especially the laws known as the Clarendon Code and the Test Act.

The four penal laws collectively known as Clarendon Code are named after Charles II's chief minister Edward Hyde, 1st Earl of Clarendon, though Clarendon was neither their author nor fully in favour of them.[3] These included:

  • the Corporation Act (1661) required all municipal officials to take Anglican communion, and formally reject the Solemn League and Covenant of 1643. The effect of this act was to exclude nonconformists from public office. While the legislation was not rescinded until 1828, the legal power to enforce it lapsed in 1663, and therefore many evicted officials were able to regain their positions after a few years.[4]
  • the Act of Uniformity (1662) made use of the Book of Common Prayer compulsory in religious service. Over two thousand clergy refused to comply and so were forced to resign their livings (the Great Ejection). The provisions of the act were modified by the Act of Uniformity Amendment Act, of 1872.
  • the Conventicle Act (1664) forbade conventicles (a meeting for unauthorized worship) of more than five people who were not members of the same household. The purpose was to prevent dissenting religious groups from meeting.
  • the Five Mile Act (1665) forbade nonconformist ministers from coming within five miles of incorporated towns or the place of their former livings. They were also forbidden to teach in schools. Most of the Act's effects were repealed by 1689, but it was not formally abolished until 1812.

Combined with the Test Act, the Corporation Act excluded all nonconformists from holding civil or military office, and prevented them from being awarded degrees by the Universities of Cambridge and Oxford.

Further penal laws in Great Britain

In the late 17th and 18th centuries, many non-conformist Protestants successfully evaded the political disabilities imposed by the Test Act by taking communion in the Church of England as required, while otherwise attending non-conformist meetings. High churchmen and Tories, empowered late in Queen Anne's reign, sought to close this loophole with the passing of the Occasional Conformity Bill in 1711, however the Act was repealed after the Hanoverian Succession with the return to power of the Whigs, who were generally allied with non-conforming Protestants. In the wake of the Jacobite Rising of 1715, the British parliament also passed the Disarming Act of 1716.

Penal laws in Ireland

The Penal Laws were introduced into Ireland in the year 1695, disenfranchising nonconformists in favour of the minority established Church of Ireland. Though the laws also affected adherents of the Presbyterian Church in Ireland (who were concentrated in Ulster), their principal victims were members of the Catholic Church, meaning over three quarters of the population. These laws included:

The laws were eventually repealed from the 1770s by the Papists Act 1778 and the 1774 Quebec Act. The British Roman Catholic Relief Act 1791 was followed in Ireland in 1793. Finally in 1829 Catholic emancipation was enacted, largely due to Irish political agitation organised under Daniel O'Connell in the 1820s, but effects of the laws in terms of sectarianism between Catholics and Protestants can still be seen, particularly in Northern Ireland, today.

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See also

References
  1. Burton, Edwin, Edward D'Alton, and Jarvis Kelley. "Penal Laws." The Catholic Encyclopedia Vol. 11. New York: Robert Appleton Company, 1911. 28 August 2018
  2. Medley, Dudley J. (1925). A student's manual of English constitutional history (6th ed.). New York: Macmillan. pp. 638–639. hdl:2027/uc1.$b22458. OCLC 612680148.
  3. History Learning Site - The Clarendon Code
  4. Harris, Tim, Politics Under the Later Stuarts: Party Conflict In a Divided Society, 1660-1715. London: Longman, 1993. p. 39.

 This article incorporates text from a publication now in the public domain: Herbermann, Charles, ed. (1913). "Penal Laws". Catholic Encyclopedia. New York: Robert Appleton Company.

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