The Penal Laws
The civil and ecclesiastical supremacy of members of the Church of Ireland was secured by the penal laws. These laws were not a code in the strict sense of the word; rather they were an accumulation of laws dating from the Reformation to the reign of George II. Laws with similar intent also existed in England, but there both Catholics and Dissenters were minority groups. In Ireland, in three of the four provinces – Leinster, Munster and Connacht – Catholics formed an overwhelming majority of the population. No definite figures exist for religious affiliation, but probably between three-quarters and four-fifths of the population were Catholic; of the remainder about half were Presbyterians, who were concentrated in the remaining province of Ulster. After the defeat of James II, frequent and systematic additions were made to the penal laws until after the Hanoverian succession. The first of these new discriminatory laws was passed by the English parliament in 1692, 3 Will. & Mary, c. 2. Catholics, already excluded from the English parliament by the 1678 Parliamentary Test Act, were now also excluded from the Irish parliament and from holding public office. This was ensured by requiring an oath of allegiance denying inter alia the doctrine of transubstantiation. Subsequent laws usually derived their momentum from the Irish parliament and reflected its insecurity. Additions were made during the reign of William III, and the severity of the ‘code’ reached its zenith during the reign of Queen Anne. Then it gradually tapered off as the Hanoverian dynasty became more secure and many laws fell into disuse.
The penal laws can be broadly classified into three types: firstly, acts that affected the clergy and the church hierarchy; secondly, acts that affected the family through restrictions imposed on education, marriage and inheritance; and thirdly, acts that prevented Catholics, and to a lesser extent other Nonconformists, from participating in public life or professional activity, such as sitting in parliament, grand juries and municipal corporations or embarking on a career in the legal profession or the armed forces.
Being debarred from the armed forces persuaded many to seek a career in the armies of the Catholic sovereigns of Europe, particularly in France. Enlistment in these regiments was sometimes surreptitious and illegal, but it could also be sanctioned by government granting the enlistment officer a licence. Officially government took a strict line on illegal enlistment, but it was almost impossible to stop, although a number of statutes attempted to plug this loophole.
Professionally Catholics were debarred from the law (10 Will. III, c. 13; 6 Anne, c. 6; 7 Geo. II, c. 5 & c. 6), which in the eighteenth century was the traditional method of advancement both socially and economically, and again many statutes were aimed at prohibiting this avenue from them. However, many got round this difficulty by conforming – doubtless with varying degrees of sincerity – to the Established Church. In March 1726/7 Primate Boulter complained that:
The practice of the law from the top to the bottom is at present mostly in the hands of new converts … producing a certificate of their having received the sacrament in the Church of England or Ireland, which several of them who were papists at London obtained on the road hither … Things are at present so bad with us, that if about six should be removed from the bar to the bench here, there will not be a barrister of note left that is not a convert.374
In January 1733/4 Primate Boulter reported to the Duke of Newcastle that the laws forbidding Roman Catholics to act as solicitors had failed ‘by reason of the obloquy and danger of informing’.
From the start there was a dichotomy between the attitude of the London and Dublin parliaments to the penal question. For England the overriding consideration was strategic – a desire to secure her back door from her continental enemies. For the Dublin politicians the penal laws were the moat that preserved their power. Parliament was determined to deprive the Catholic gentry of any possible opportunity to endanger again the Protestant elite. Thus, in 1695, the Irish parliament enacted laws divesting the Catholic gentry of the accoutrements of their class: for instance, under 7 Will. III, c. 5, they could no longer carry arms or own a good horse. Their children were deprived of education at home, as any Catholic attempting to keep a school in Ireland was subject to imprisonment and a fine of £20, and they were forbidden to send their children abroad, as they had done during the seventeenth century.
Two years later, the nervousness of the newly established ascendancy led to the prohibition of intermarriage between Catholics and protestants. This ban was aimed at property and inheritance and an attempt to close any possible loophole that might allow Catholics to exercise the political power that was considered inherent in the ownership of property. A protestant woman marrying a Catholic man automatically forfeited her actual possessions and any potential inheritance, while a protestant man marrying a Catholic woman was subject to the disadvantages of a Catholic unless his wife conformed within a year of the marriage. Where there was any doubt, certificates of adherence to a protestant church had to be produced. Any priest or minister marrying such a couple was liable to a fine of £20 and a year’s imprisonment; on the completion of a successful conviction an informer received half of the £20 fine. However, law enforcement, particularly where the law was unpopular, was always difficult for eighteenth-century governments, and greed, grievance or simple poverty made the informer one of the chief means of enforcing the penal laws.
At the beginning of 1697, fearing that ecclesiastical leadership might replace that of the lay aristocracy, parliament turned on the Catholic hierarchy. An act, 9 Will. III, c. 1, passed in this parliamentary session banished ‘all Papists exercising any ecclesiastical jurisdiction and all regulars of the popish religion out of the kingdom’ decreeing that any found there after 1 May 1698 should be imprisoned and transported, and should they subsequently return they would be guilty of high treason. Moreover, any bishop or regular who came into the country after 29 December 1697 would incur similar punishments, while those who harboured such priests would be subject to a fine of £20 for the first offence, £40 for the second and forfeiture of lands and possessions should they offend again. This act affected only the hierarchy and the regular clergy, most of whom now left the country. At the same time a register was made giving the names and addresses of the 900 secular clergy, who remained in their parishes but ostensibly without the guidance of their bishops or the support of the regular orders. The loyalty and leadership of the latter was suspect, as they were traditionally regarded as the pope’s militia.
Virtually all of those proscribed, who might be described as the ecclesiastical elite, now followed the lay elite out of the country. In March 1698 James II wrote that ‘the unhappy religious are fleeing in crowds to France.’ His concern was shared by his queen, Mary of Modena, whe added the influence of her family, the d’Estes, to her husband’s support, fearing that ‘if this continues, to all appearances our holy religion will be uprooted in that kingdom and in others as well.’ The English ambassador in Paris, Mathew Prior, reported that ‘collections have been made in all the churches of Paris for the poor Irish priests whom the late act of Parliament sent from that kingdom’, and some 35,000 livres was collected for their necessities. The pope responded with a grant of 27,364 livres for the six months ending January 1699. Although the majority fled to France, most of the Catholic countries of Europe received some of these refugees. Mary of Modena calculated that about 700 regular priests of the Irish mission fled from Ireland at that time, and as there were about 900 secular, or parish, priests, there were in 1697 upwards of 1,600 Catholic clergy in Ireland.
In 1697 peace had just been concluded at Ryswick, largely in preparation for the débâcle anticipated on the imminent death of Charles II of Spain and its expected effect on the balance of power in Europe. In the circumstances, William III was not a little concerned at the international consequences of the Banishment Act, 9 Will. III, c. 1. However, the rulers of Catholic Europe could, in view of their own inflexible attitude towards their protestant subjects, do nothing except lodge diplomatic protests. Louis XIV, in particular, could do little in view of his own recent treatment of the Huguenots, so he simply instructed his envoy, Count Tallard, to do the best that he could for the Irish without giving the English government any opportunity to make a bargain on behalf of the Huguenots. Both Louis XIV and the Emperor Leopold I, the head of the Austrian branch of the Hapsburgs, were deeply involved in the impending question of the Spanish succession and Ireland was peripheral to their immediate interests. The emperor instructed his envoy, Count Auersperg, to make a strong protest to King William, pointing out that while the king was tolerant he was also mortal.
Ireland was not high on William III’s agenda either, but he was personally tolerant, and from the time of the Treaty of Limerick onwards he had attempted to compromise by consenting to the demands of the Irish parliament for penal legislation while mitigating its application whenever possible. In any case the application of legislation was far from axiomatic in the religious as well as the civil sphere of everyday activity. Much of it in the first instance lay in the hands of the unpaid Justices of the Peace, whose views could be coloured by threats or local interest or sentiment, and over whose actions the central government could exercise only a limited control. As early as 1701 Lord Lieutenant Rochester commented in a proclamation on the evasions of the 1697 Banishment Act that:
We cannot but take notice of the general neglect of the several magistrates and ministers of justice in this kingdom and the officers of the revenue in the several ports who have been wanting in their duty in putting the laws in execution by whose neglect chiefly the several offenders are emboldened to continue, come or return into this kingdom.380
The proclamation offered a graduated scale of rewards to whomsoever ‘shall discover such offenders’: £100 for an archbishop or a bishop, £30 for a clergyman exercising ecclesiastical jurisdiction, and £10 for every Jesuit, friar or monk. The laws encouraged the emergence of a small number of professional priest-hunters. Among those who acquired prominence in this profession were Edward Tyrrell, executed for bigamy in 1713, and a Portuguese Jew named John Garzia who, to the embarrassment of the government managed, in 1718, to catch Archbishop Byrne of Dublin. These unsavoury individuals were the outcasts of society and usually went in fear of its vengeance; for example, in 1711, Henry Oxenard was nearly stoned to death by the Dublin mob.381 At the same time, over-zealous magistrates were likely to find their property attacked.
The accession of the devoutly Anglican Anne confirmed the emperor’s fears. To the bigotry of the English High Church party were added the fears and exclusivity of their Irish co-religionists. In 1703 a further penal act extended the penalties already imposed on the hierarchy to every Catholic priest coming into Ireland after 1 January 1704. The effect of a rigorous application of this act, in view of the previous banishment of the bishops, would have eventually been to cut off the supply of priests, thus making it impossible for Catholics to exercise their religion. This aspect of the bill worried the queen, who felt, with some justification, that it might be ‘construed to infringe the articles of Limerick’. To meet her objections the bill was in the first instance limited to a period of 14 years, but despite its infringement of the articles, it was made perpetual in 1709.
The 1703 act was followed in 1705 by a further act, 4 Anne, c. 2, requiring the formal registration of all priests, who were to appear in court immediately after 24 June 1704 and on pain of banishment to register, giving their name, address, age, parish, the date and place of their ordination, and the name of the ordaining prelate. No priest was to have a curate. But, once registered, a priest was free to carry out his normal duties. His congregation could attend church openly. One thousand and eighty-nine secular priests registered under this act; these included some regulars and bishops. Registration revealed that there were at this time 352 priests in Leinster, 289 in Munster, 259 in Connacht and 189 in Ulster. Three bishops – Archbishop Comerford of Cashel, Bishop Donnelly of Dromore and Bishop Rossiter of Ferns – registered for parishes in their respective dioceses, as did Edward Byrne, later Archbishop of Dublin.383
The impact of this legislation on the hierarchy was immediate and severe, if comparatively short-term. In 1708 Bishop Piers of Waterford, who had left Ireland in 1701, was acting as assistant to the Archbishop of Sens, and he informed Cardinal Gualterio that there were only two bishops in Ireland – one infirm and the other in gaol. This assessment reflected the isolation of the Irish church at this time as, while Archbishop Comerford was indeed ill and Bishop Donnelly, the administrator of Armagh, was in prison, Bishop Rossiter was still alive and the recently consecrated Archbishop Byrne of Dublin was taking an increasingly active role in the administration of the church. Although the ecclesiastical structure of the church was to remain weak for some years, particularly after Bishop Rossiter died in 1709 and Archbishop Comerford in 1710, the restoration of the hierarchy had in fact begun with the consecration of Archbishop Byrne in 1707.
At the accession of Queen Anne, despite the Act of Settlement (12 & 13 Will. III (Eng.)), the future was unclear. Anne had still to reign and, as James II and William III had shown in different ways, the personality and the inclinations of the monarch were important. Many believed, incorrectly in the event, that Anne might favour her half-brother rather than a German electress cousin and her descendants. The English and Scottish crowns were still united only by the accident of birth, and the Scots had made it clear that any agreement to a common successor was far from a foregone conclusion. All of these uncertainties had religious as well as secular overtones, and they gave politics a frenetic quality and party conflicts a bitterness that affected all three kingdoms of the British Isles during the reign of Queen Anne.
In Scotland, the union of the parliaments to guarantee a united succession had a price, as the Scots made very clear. At the very least they would require the security and establishment of the Presbyterian Church as the Church of Scotland; also they insisted on the retention of the Scottish legal system, which differed in both principle and procedure from that of England; significantly, they sought an economic as well as a parliamentary union to give Scotland full access to England’s overseas possessions and markets. The English considered this a hard bargain, but they had no option but to consent. Had Ireland been in a position to make similar terms, the insecurity, which expressed itself in intolerance, might have been allayed. But it is important to remember that Ireland, with its Crown already ‘inseparably attached’ to the English Crown, had little to offer. The Irish Catholics, weakened by a combination of civil war and the suspicion of disloyalty to the protestant succession, were in no position to exact even basic legal toleration, while protestant Nonconformists, whose support was assured, were soon to feel the weight of the official displeasure that could not with impunity be exerted against the Scots. The clause debarring Dissenters and thereby splitting the protestant community was added to the 1703/4 penal bill in England, but once it was there the Irish parliament was strongly against its repeal, although later English governments would have been not unhappy to see it removed. The reign of George I saw the beginning of a series of indemnity acts stretching throughout the century and aimed at a brief and limited lifting of restrictions against Dissenters, particularly should they be needed for defence.
The penal act of 1703/4 (2 Anne, c. 6), confirmed and made permanent in 1709 (8 Anne, c. 3), was probably the most severely felt in everyday life. The 1709 Act was passed in an atmosphere of increasing crisis. The queen did not enjoy good health, and with each year the succession question assumed a greater dominance in the domestic affairs of the British Isles. On 10 July 1706 James Edward Stuart had celebrated his eighteenth birthday and come of age. England was still at war with France, and in the uneasy aftermath of the 1707 Act of Union (6 Anne, c. 11 (Eng.)), there was, in March 1708, an abortive attempt at a Jacobite landing in Scotland. Nevertheless, the queen remained adamant in her refusal to invite the Hanoverian electoral prince to visit his putative inheritance. Furthermore, although in July Marlborough defeated the French at Oudenarde, his duchess had already lost much of her influence with the queen, whose final personal tragedy occurred in October when her husband, Prince George of Denmark, to whom she was sincerely attached, suddenly died. It was against this background of uncertainty that 8 Anne, c. 3, came on to the statute book.
This act ‘for explaining and amending’ the 1703/4 Act was framed with a view to tightening the loopholes that had appeared in the existing penal legislation. Registered priests were now required to take the oath of abjuration. The terms of the oath were unacceptable to Catholics and had been condemned by the pope. Nevertheless, failure to comply with this requirement placed the secular clergy in the same position as the regulars. Despite this there was a mass refusal, as only 33 of the over 1,000 known clergy were prepared to take the oath. The stand of the overwhelming majority of the clergy made this part of the act inoperable, although it also made the position of all the clergy legally vulnerable.
As the accession of Queen Anne had increased the influence of the High Church party in England, the position of the Protestant ascendancy in Ireland was also strengthened. They became increasingly determined to consolidate their hold as a dominant elite, particularly through their control of the landed property of the country. One of the aims of the 1703/4 Act ‘to prevent the further growth of Popery’, 2 Anne, c. 6, was the annihilation of all Catholic estates and the indirect destruction of Catholic family life: the act decreed that should the eldest son of a Catholic conform to the Established Church he could secure his traditional inheritance by making his father a ‘tenant for life’; no Roman Catholic could act as a guardian to minors; where the entire family remained Catholic the estate must descend in gavelkind and be shared equally among all the sons; no Roman Catholic could acquire a lease in his own or another’s name for more than 31 years; and no Roman Catholic could vote for an MP unless he took, in addition to a simple oath of allegiance, the oath of abjuration, which contained a declaration against transubstantiation and the invocation of the Virgin Mary as well as a declaration that James Edward Stuart ‘hath not any right or title to the crown of this realm’. Without any intention or wish to challenge Queen Anne’s authority, or the provisions of the Act of Settlement, many protestants (including some Presbyterian ministers) as well as Catholics could not in conscience agree that James Edward ‘hath not any right’. Undoubtedly at least some of the conversions that resulted from this act and its confirmation in 1709 were formal rather than conscientious.
But, primogeniture was, after all, a peculiarly English custom. For instance, 7 Will. III, c. 6, confirmed that ‘all ordainaries, as well as the judge or judges of the prerogative court of the Archbishop of Armagh’ should administer intestate estates granting one-third to the widow and dividing two-thirds among the children with certain stipulations; if there were no children then half was to go to the wife and half to the next of kin. The husband of an intestate wife would inherit her estate. However, the Act also mentions a custom of partible inheritance:
It has been held that there is a certain custom within this kingdom of Ireland … that if any person dye possessed of any goods … or personal estate whatsoever; and having at the time of his death, a wife, or child, or children that in such case all the said estate is to be divided into three equal parts, whereof one third part belongs to the wife, another to the child or children, and the third part only to be subject to the disposition of the party deceased by his last will or testament in case he make any, or to go in a course of administration in case he dye intestate; and if he leave a wife only, and no children … [one half to the wife and one half to his disposition] … now it is hereby declared that the said custom shall from henceforth be absolutely null and void to all intents and purposes whatsoever.
Obviously there were various traditions of inheritance even before the gavelling clause of the 1703 penal act, and its social impact should perhaps be viewed in the light of traditional inheritance customs as well as a purely penal one. Nevertheless, the Established Church’s control over wills that had to be proved in the Church’s courts was deeply resented.
It has been calculated that about 5 per cent of land remained in Catholic hands in the 1770s, so that the effect of the penal laws on Catholic landholding amounted to a total reduction of about 7 per cent. Some 1,878 converts to the Established Church were registered in the Court of Chancery in the period 1702-52. The distress of many of the early converts is reflected in the poetry of Piaras Mac Gearailt (Pierce FitzGerald), who conformed, probably in the 1720s, to save his small estate of Ballykineally, Co. Cork. Feeling himself to be an eighteenth-century Demas, he wrote bitterly that ”tis sad for me to cleave to Calvin or perverse Luther, but the weeping of my children, and the spoiling them of flocks and land, brought streaming floods from my eyes and descent of tears.’ Particularly in a hierarchical society, the exodus of so many of the Catholic aristocracy following the Treaty of Limerick left those who remained too weak and disheartened to form anything like a solid group to oppose the aggrandisement of the Anglican ascendancy. To conform, if their conscience would allow, and to salvage what they could from the holocaust must have seemed to many Catholics the only possible policy for survival. As with the Presbyterians, many of those who conformed were those with most to lose both socially and materially.
Between 1752 and 1773 a further 2,177 conversions were registered. This increased rate is probably a reflection not only of the passage of time but also of the intellectual deism of the Age of Reason, which tended to break down denominational barriers. The career of Walter Blake Kirwan (1754-1805), Dean of Killala, is an illustration of this. A member of the prominent Galway family, he had been educated at St Omer and ordained a Catholic priest. Possibly feeling that the danger to Christianity itself superseded denominationalism, he joined the Established Church on the grounds that he could serve the Christian ministry most effectively in that sphere, writing that:
I have only passed into a situation in which I can better accomplish a desire which has ever been the next and dearest to my heart – that of rendering more service to the community and inculcating the pure morality of the Gospel with greater fruit and extent.390
Uninterested in ecclesiastical preferment, he carefully avoided religious controversy and assiduously and effectively pleaded for the relief of the poor in charity sermons that drew large congregations from Dublin society. His pulpit eloquence appears to have equalled that of his evangelical contemporary, Whitefield. In various statutes the government tried to persuade priests to conform by making financial provision for them.
Apart from a number of penal statutes mainly concerned with preventing priests from conducting marriages between Catholics and Protestants, for example 12 Geo. I, c. 3 (1725), the 1709 statute was the last of the major statutes against the clergy. The official theory behind the 1704 and 1709 statutes was that the Catholic Church in Ireland, deprived of its clergy, would gradually fade away. In practice, except for a few extremists like Archbishop King, who held that ‘they or we must be ruined’, it is unlikely that the legislators really expected or wished for this logical conclusion. That their main concerns were to maintain their security and their elite position is shown by their apparent exclusion of the Presbyterians from public life, and the large number of indemnity acts passed to enable their controlled participation when required. The Catholics, however, were finally deprived of the franchise, which was restored only in 1793, in the 1727 statute, 1 Geo. II, c. 9.
Despite threats of further penal legislation after the accession of George I, the position of the Catholic hierarchy gradually won a de facto acceptance, although they were always liable to be persecuted in times of crisis. In 1776 Arthur Young, visiting Chief Baron Foster, commented on the severity of the ‘popery laws’, to be told that ‘they were severe in letter but were never executed.’ The last period of serious religious persecution was during the Jacobite rebellion in 1745-6. Although Ireland remained peaceful in both 1715 and 1745, any crisis triggered the suspicions of a nervous government. For instance, when war broke out in 1739, the Duke of Newcastle wrote to Lord Lieutenant Devonshire to advise him that after consultation with the British Attorney General, it was considered desirable ‘to let it be understood that an application to your Grace from the Parliament for putting the laws into execution against the popish priests would not be disagreeable to you’. However, after the accession of George I, the uncertainty created by the presence of the penal laws was probably greater than the severity of their application.
The Relaxation of the Penal Laws
From 1760 onwards there was a piecemeal and very gradual relaxation of the penal laws. Many Irish MPs, conscious of their minority status, remained suspicious, while others felt that times had changed. In 1772, 11 & 12 Geo. III, c. 31, allowed Catholics to hold leases for agricultural improvement for 61 instead of 31 years; in 1774, 13 & 14 Geo. III, c. 35, allowed HM’s subjects of any denomination to testify their allegiance to him; in 1778, 17 & 18 Geo. III, c. 49, enabled Catholics to take leases for 999 years. In 1782 Luke Gardiner (0842), the sponsor of the 1778 bill, introduced three further measures, two of which became law: 21 & 22 Geo. III, c. 24, 62, allowed Catholics to acquire land except in parliamentary boroughs and repealed a number of vexation laws, e.g. 7 Will. III, c. 5, which compelled a Catholic to accept £5 for his horse if offered it by a Protestant. At the same time, 21 & 22 Geo. III, c. 25, acknowledged the validity of Presbyterian marriages between Presbyterians conducted by a Presbyterian minister, and 21 & 22 Geo. III exempted Seceders (Presbyterians) from kissing the Bible on taking an oath, while 21 & 22 Geo. III, c. 24, allowed Catholics to become schoolmasters provided they took the 1774 oath and taught only Catholic children. A bill to legalise marriages between Catholics and protestants was defeated.
The next change came in 1792, 32 Geo. III c. 21, when the Irish parliament reluctantly agree to further concessions that allowed Catholics to enter the legal profession and hold legal positions below the rank of KC, to marry protestants and to educate their children as they pleased. Then in 1793, under further pressure, Catholics were enfranchised on the same terms as protestants and had equality of service on grand or petty juries; Dublin University was opened to them. The concessions were grudgingly given, and the storm aroused by Fitzwilliam’s unfortunate viceroyalty ensured that there were no further changes during the life of the Irish parliament.
The State Church – Ecclesiastical Legislation
The Church of Ireland was the state church ‘by law established’. The Irish MPs were genuinely concerned to strengthen the position of the church both temporally and spiritually, and the majority of statutes on religious matters were about the structure and maintenance of the church and the duties and sustenance of the clergy. Although their adherents were a small minority the established hierarchy’s ostensible ambition was to create a national church, and most statutes were aimed at its fulfilment. Arrangements for building and maintaining churches, glebe houses and palaces for the bishops, and for the buildings of one clergyman to be taken over by his successor (10 Will. III, c. 6), were major concerns, as were arrangements for the sustenance of the clergy from glebes and tithes. Erection of new, and divisions of old, parishes were important in the arrangement of the church; for example, the growth of population and its spread led to variations in parochial arrangements (e.g. 2 Anne, c. 10, 11). Also, given the difficulty of travel, it was desirable that the real or putative congregation should be within about a five-mile radius of the church.
Tithes were always unpopular, and another concern was the prevention of intimidation, particularly later in the century when many clergymen, afraid to collect their tithes, farmed them to tithe proctors. There was also friction between the landlords and the clergy over questions of the dual claim on the tenants of rents and tithes, particularly in times of scarcity. In 1736 the House of Commons passed a resolution against the tithe of agistment (the tithe for the pasturage of dry or barren cattle); it would have attempted to legislate except that the bill would have been defeated in the House of Lords. In the early part of the century the bishops had dominated the House of Lords, and this gave some protection to the clergy, particularly as – in their different ways – both Archbishop King and his successor, Archbishop Boulter, were genuinely concerned for the welfare of the church. They were particularly anxious to encourage clerical residency, and a number of statutes were passed to this end (e.g. 1 Geo. II, c. 15), but allied to this was the uneven spread of the church’s resources. The estates and other perquisites attached to bishoprics varied considerably: some benefices and bishoprics were very rich, while others were very poor.
The estates of the Established Church, Dublin University and other institutional property could only be let on 21-year leases. Their holdings were sizeable: it has been estimated that Dublin University owned 1 per cent of the land of Ireland, while in certain areas the Established Church had a high profile. For instance, in Co. Armagh Wakefield found that ‘a large portion of this county belongs to church and college establishments, and to corporations, which have not the power of granting a freehold lease of lives.’ This limitation was supposed to safeguard the corporation’s interest in the property, but in fact church and university estates were notoriously badly cultivated and badly managed. For example, Wakefield commented that Cloyne was built on the bishop’s leases, and ‘this may account for its being so miserable a place’; on another occasion he wrote that ‘I travelled over College property where I saw some of the most wretched villages I ever beheld.’ Variations in episcopal emoluments encouraged clergymen to seek translations from less to more materially advantaged sees. Thus 21 years was too long a period for most individual bishops to benefit from natural renewal fines. Consequently, there was a tendency on diocesan estates to fine down rents, or accept a payment for the immediate renewal of a lease on favourable terms, and to ensure immediate benefits by constantly renewing the leases.
Another method – ensuring greater long-term benefits, but riskier in the short term – was that adopted by Frederick Augustus Hervey, who in 1768 was translated to the bishopric of Derry at the early age of 38. Eleven years later he succeeded his brother as 4th Earl of Bristol. Despite his many eccentricities, the Earl-Bishop was a shrewd and far-sighted businessman. He decided to gamble on his youth and to forgo the more immediate benefits of fines from frequent renewals. Instead he let the leases run their course, and in some cases bought in the term outstanding. He then set up a trust for his private benefit, leasing the lands to his personal trustees in his public capacity as Bishop of Derry. The trustees became middlemen and let the lands to the original occupiers. The risk was in ‘running his life’ against the outstanding term on the leases. Once he had survived and created the trust, he had only to renew the term of the leases frequently, as the unexpired term of a lease could be bequeathed.
The Earl of Bristol was Bishop of Derry for 35 years, and his episcopal successors were faced with renewing the leases on favourable terms or taking the risk of running their lives or their tenure of the see against the outstanding term of the consolidated leases. This was a greater risk than that originally taken by the Earl-Bishop, particularly as it was unlikely that his successors would be appointed at so early an age to so wealthy a see, have the security of such substantial expectations before them or such powerful connections as would enable them to remain in the see until the leases fell in. While this case was an unusual example of how the letter of the law could be used to defeat its intention, it does highlight the complexities of the leasing system. Derry, at the time of Bishop Hervey’s appointment, was the wealthiest bishopric in the Church of Ireland; the Primacy had only recently been filled, following the death of Primate Stone in 1764, and the responsibilities of other high ecclesiastical office were unlikely to attract this secular bishop, while his theological views could hardly have encouraged his superiors to promote him to higher pastoral office. Other bishops cut down and sold the timber on the episcopal estates, promoted their family to the best benefices, etc.
Nevertheless, there were bishops who took their social and ecclesiastical duties seriously. Along with many of the laity, they were sincerely concerned for the welfare of the church. There was considerable anxiety in 1800 lest the church suffer from the Union, and the Act of Union, 40 Geo. III, c. 38, specifically attempted to secure the position of the church by declaring that:
The churches of England and Ireland as now by law established, be united into one Protestant episcopal Church … and the government of the said United Church shall be and remain in full force forever … and that the continuance and preservation of the said United Church … shall be deemed and taken to be an essential and fundamental part of the union