Catholic Recusancy and the Penal Laws, 1603-1707 ALLAN I. MACINNES, M.A. Because of the frequency with which the penal laws against Roman Catholics were invoked, 1 the seventeenth century has been depicted as the “penal era” by historians of recusancy in Scotland. 2 Conversely, that the penal laws against Catholic clergy, nonconforming laity and their resetters should be reinforced and their implementation proclaimed on another 18 occasions after their collation and codification in 1609 argues more for their ineffectiveness rather than their sting. The composite enactment of the penal laws in 1609, which brought together legislation against papists passed piecemeal since the Reformation, was undoubtedly draconian in tenor. Resetters of recusants were equated with the sayers and hearers of masses. On first confirmed notification of their Catholic proclivities to the privy council, resetters were liable to have their goods and gear confiscated. If resetters were themselves found to be Catholic nonconformists refusing to partake of communion as a Protestant sacrament, they were to be excommunicated and treated as recusants who were liable not only to have their moveable property escheated but all rents and revenues sequestrated. Contumacious resetters and recusants ultimately faced charges of treason and, if convicted, capital I would acknowledge the invaluable advice and unstinting assistance received rom Dr John Durkan. The sins of omission and commission are entirely my own. I also found extremely helpful the Rev. Mark Dilworth’s “The Counter- m ? COtlan ^^ Sel f Ct Bibli °g ra P h y” Records of the Scottish Church History Society [RSCHS ], xxii (1984), 85-100. L L. Campbell, “Some Notes and Comments on ‘The Irish Franciscan ,?nQTt!°?i an JL by ReV ‘ Cathaldus Giblin . O.F.M.”, Innes Review [//?], (1953) 42-48. The concept of the penal era has underwritten Catholic histones from A. Bellesheim, History of the Catholic Church of Scotland, 4 ols., transl. D. H. Blair, (Edinburgh & London, 1887-1890) to P. F. Anson ereafhf f°W rr Sco/W 1622-1878 (Montrose, 1970), being H d S N°rralives of Scottish Catholics under Mary Stewart and CatholL U T;.. Lei,h (Edinbur8h ’ 1885 > and Memoirs of Scottish 1909)° /,CS Unng 1 ^ I8'h centuries ’ 2 vols - ed - w - F. Leith (London, 27
Transcript
Catholic Recusancy and the Penal
Laws, 1603-1707
ALLAN I. MACINNES, M.A.
Because of the frequency with which the penal laws against RomanCatholics were invoked, 1 the seventeenth century has been depictedas the “penal era” by historians of recusancy in Scotland. 2
Conversely, that the penal laws against Catholic clergy,
nonconforming laity and their resetters should be reinforced andtheir implementation proclaimed on another 18 occasions aftertheir collation and codification in 1609 argues more for theirineffectiveness rather than their sting. The composite enactment ofthe penal laws in 1609, which brought together legislation againstpapists passed piecemeal since the Reformation, was undoubtedlydraconian in tenor. Resetters of recusants were equated with thesayers and hearers of masses. On first confirmed notification oftheir Catholic proclivities to the privy council, resetters were liableto have their goods and gear confiscated. If resetters werethemselves found to be Catholic nonconformists refusing topartake of communion as a Protestant sacrament, they were to beexcommunicated and treated as recusants who were liable not onlyto have their moveable property escheated but all rents andrevenues sequestrated. Contumacious resetters and recusantsultimately faced charges of treason and, if convicted, capital
I would acknowledge the invaluable advice and unstinting assistance receivedrom Dr John Durkan. The sins of omission and commission are entirely myown. I also found extremely helpful the Rev. Mark Dilworth’s “The Counter-
m?COtlan^^ Sel
fCt Bibli°g raPhy” Records of the ScottishChurch History Society [RSCHS ], xxii (1984), 85-100.
L L. Campbell, “Some Notes and Comments on ‘The Irish Franciscan
,?nQTt!°?ianJL
by ReV ‘ Cathaldus Giblin. O.F.M.”, Innes Review [//?],
(1953) 42-48. The concept of the penal era has underwritten Catholichistones from A. Bellesheim, History of the Catholic Church of Scotland, 4ols., transl. D. H. Blair, (Edinburgh & London, 1887-1890) to P. F. Anson
ereafhff°W
rrSco/W 1622-1878 (Montrose, 1970), being
Hd S N°rralives of Scottish Catholics under Mary Stewart and
CatholL U T;..Lei,h (Edinbur8h
’ 1885 > and Memoirs of Scottish
1909)°/,CS Unng
1^ I8'h centuries’ 2 vols - ed - w - F. Leith (London,
27
punishment as well as outright forfeiture of estates if members ofthe landed classes.
3
Nonetheless, though recusancy features as a persistent cause ofconcern for central government throughout the seventeenthcentury, the penal laws were never enforced comprehensively,however intemperately their reimposition was trumpeted. The privy
council was intent on retaining discretionary control over the penallaws which applied (in descending order of effectiveness)
educational, financial, office-holding and landed sanctions against
recusants and their resetters following excommunication in
ecclesiastical courts. Indeed, the guiding spirit for the council, until
its demise in the aftermath of the treaty of union, was to applysanctions pragmatically not dogmatically in order to eradicate
popery in succeeding generations rather than inflict irreparable
material damage on prominent Catholic families/ In turn, the
regular re-issue and amplification of the penal laws served as a
continuous encouragement to Scottish Catholics to exercise
circumspection rather than openly flaunt their faith.
Constant harassment by the Kirk, reinforced by threats of civil
sanctions against regular and secular clergy, recusants and their
resetters, certainly restricted the scope for Counter-Reformation in
Scotland. There was no English equivalent to kirk sessions andpresbyteries to keep a watchful and reproachful eye on Catholics.
Yet, the prospects for Catholicism as a living faith within Scottish
communities was transformed radically, if gradually, following the
reinvigoration of the Scottish Mission from the third decade of the
seventeenth century. Hitherto, though there is little evidence for
serious prosecution in post-Reformation Scotland/ Catholicism
was a declining, if lingering, force, its adherents much given to
compromising on matters of church attendance and partaking of
communion as a Protestant sacrament; its practice outside
Edinburgh — which was possibly never without a mass despite the
Reformation — tended to be confined to aristocratic households in
town and country where occasional masses were held for families,
friends and servants. Barely a handful of priests were active in
Scotland by 1603, when the union of the crowns coincided with the
1 Enactments and proclamations of the penal laws are to be found variously in
Acts of the Parliaments of Scotland \A PS] (1593-1707), 9 vols., edd. T.
Thomson, C. lnnes (1816-75) and in Records of the Privy Council of Scotland
Ibid. ,2nd ser. (1625-60), 8 vols., edd. D. Masson, P. H. Brown (Edinburgh,
1899-1908); Ibid., 3rd ser. (1661-91), 16 vols., edd. P. H. Brown et al.
(Edinburgh, 1908-70).4 RPC, (1599-1691), passim.5 M. H. B. Sanderson, “Catholic Recusancy in Scotland in the sixteenth
century”, IR, xxi (1970), 87-107; A. Ross, “Reformation and Repression” in
Essays on the Scottish Reformation, 1513-1625 ed. D. McRoberts, (Glasgow,
1962), 371-414.
28
death in exile of the last pre-Reformation prelate, James Beaton,
archbishop of Glasgow, ambassador for James VI in France, and
principal benefactor of the Scots college, whose work included the
training of priests in Paris. 6
The ground rules for the reinvigoration of Catholicism in the
Lowlands were laid down from 1617 by the Jesuits who targeted
landed families, particularly those with heritable jurisdictions able
to protect priests and encourage apostacy within their territorial
spheres of influence. Leading Catholic families were encouraged to
intermarry, both to consolidate their faith and bridge their
geographical isolation.7 From 1622, with the exception of the
Jesuits, oversight of all regular and secular clergy on the Scottish
Mission was exercised spiritually, if not always financially, by the
Sacred College of Propaganda at Rome. The Jesuits, however,
remained reluctant to co-operate with other missionaries,
particularly the secular clergy, not just because their order had
pioneered and continued to bear the brunt of missionary work, but
because the secular clergy were perceptibly less well equipped
intellectually, administratively and materially to endure a life of
personal privation and constant movement to spread the faith.
Indeed, the Jesuits and secular clergy seem to have expended as
much energy on disputing control of the Scots colleges at Paris,
Douai, Rome and Madrid as in training prospective missionaries.
The fitful exaction of the mission oath prescribed in 1625, that all
alumni of Scots colleges who were not of Jesuit novitiates wouldserve the Scottish Mission for at least three years before entering
the Jesuit order, meant that the supply of secular priests from the
Scots colleges amounted to little more than a steady trickle. 8
Chronic underfunding by Propaganda and missionary rivalries
among the clergy notwithstanding, recusancy thrived withingeographical pockets, most notably in the north-east within theterritorial spheres of influence of the house of Huntly, Scotland’spremier Catholic family, and among the kinsmen and associates ofthe Maxwell earls of Nithsdale and lords Herries in the south-west.Catholicism also sustained a peripheral presence in the householdsof nobles and gentry in Tayside, and the Lothians and west-centralScotland.
6 Narratives of Sco/ish Catholics, 269-74; M. V. Hay, The Blairs Papers(1603-1660), (London & Edinburgh, 1929), 1, 104; Anson, UndergroundCatholicism, 7; G. Donaldson, Scotland: James V to James VII, (Edinburgh &London, 1965), 188-89; J. Durkan, “William Murdoch and the Early JesuitMission in Scotland”, IR (1984), 3-11.
Memoirs of Scottish Catholics, i, 1-40; D. Mathew, Scotland under Charles I(London, 1955), 152-67, 207-22.
C. Giblin, “The ‘Acta’ of Propaganda Archives and the Scottish Mission,1623-1670’, IR, v (1954), 39-76; Hay, The Blairs Papers, 52-221; Anson,Underground Catholicism, 8-17, 47-56, 60-65, 68-70, 72-77, 85-87; J. Durkan’“Miscellany-Notes on Minims”, IR, xxi (1970), 161-70.
29
Central government’s underwriting of the compulsory powersof the Kirk, both under episcopacy and presbyterianism, to direct
the education of Catholic children, to remove them from parental
control during schooling into the care of their nearest Protestant
relations and, at the same time, subject parents to remedialreligious instruction did occasion families to be reconciled to
Protestantism. Nonetheless, recusancy continued on an upwardspiral until 1685, a configuration indubitably sustained by the
reluctance of neighbours as well as kinsmen to expose longstanding
local associates to ecclesiastical censure as the precursor to
materially damaging civil sanctions. Of 169 identified landed
households in the Lowlands whose heads were indicted as recusants
between the union of the crowns and the accession of James VII,
102 remained constant in the Catholic faith. In turn, Catholicism in
the Lowlands, though still based on households where mass wascelebrated privately and irregularly, had spread from the country
seats of nobles to those of the gentry and from their town-houses to
the tenements of the burgesses and indwellers. Although the
Catholic presence in such towns as Dundee, Perth, St Andrews and
Paisley was no more than passing, the recusant community in and
around Edinburgh and Aberdeen and, latterly, Inverness was
expansive as well as continuous, while recusancy became
entrenched in Dumfries, Glasgow and Elgin in the course of the
seventeenth century. 9
In the Highlands and Islands, the relative neglect of organised
religion, allied to widespread spiritual deprivation since the
Reformation, had offered the greatest prospects for the
entrenchment of Catholicism as the faith of whole communities. 10
The strenuous efforts of Jesuits and secular priests to maintain a
minimal presence in the Highlands in the first half of the
seventeenth century did lead to marginal inroads among
communities bordering the Lowland peripheries, notably in
Q RPC, (1603-85), passim; Records of the Scots Colleges (New Spalding Club,
Aberdeen, 1906), 8-58, 102-21, 195-99, 263-64; Hay, The Blairs Papers,
255-60; Scottish Record Office [SRO], CH2/234/1, Lanark Presbytery
the Highlands, 1567-1625”, in The Seventeenth Century in the Highlands, ed.
L. Maclean (Inverness Field Club, Inverness, 1985), 24-51.
30
Perthshire and the north-east, where the chiefs and gentry whoformed the clan elite and the factors for Lowland landlords with
Highland estates tended to be bilingual. While recusancy was not
sustained among the clans in Atholl, inroads among the clan elite
and factors in Upper Deeside, Strathavon and Strathdon provided
the launching platform for subsequent work of conversion by Irish,
no less than by Scottish, priests and members of certain religious
orders among the indigenous clans, as in the surrounding districts
of Braemar, Inveravon and Glenlivet and further north in
Strathglass, Strathfarrer and the Aird. 11
Because of the dearth of native Gaelic speakers, the mainimpetus for the work of conversion throughout the Highlands andIslands was provided by Irish priests, especially the Franciscans,
whose pioneering mission from 1619 was resumed after a gap of 22
years in 1668. In the meantime, the Vincentian mission whichcommenced in 1651 and occasional sorties by Dominicans helped
ensure that Catholicism was revived within whole communities,albiet chronic difficulties of funding and communications —geographical as much as linguistic — meant that the faith was onlysustainable within strictly defined territorial limits. In 14 districts,
there can be traced a sustained history of recusancy dating from theinitial missions of Irish priests, predominantly on the westernseaboard from the Braes of Lochaber to Knoydart through theSmall Isles of Eigg and Canna to Barra, South Uist and Benbecula.Nonetheless, there are another 12 districts where recusancy had afinite history in the seventeenth century, rarely lasting beyond thefirst missions in Kintyre and the Inner Hebrides as in such dispersedareas as Caithness, eastern Sutherland and Assynt in the north,Ardnamurchan, Sunart and Glenelg in the west. 12
Unlike the Lowlands, recusancy within the Highlands and
“ RpC> 1st ser., vii, 355, 392; xiv, 478-80, 487-90; 2nd ser., ii, 497-509; iii, 28-31,406-10; iv, 146-47, 154, 620; 3rd ser., i, 65-66; iii, 380, 388-89; xi, 213; Hay,The Btairs Papers , 258-59; Memoirs of Scottish Catholics, i, 147, 303; SRO,CH2/271/1-3, Synod of Moray Records, 1623-86, passim-, SRO, CH2/6/1,Aberlour Presbytery Records, 1671-88, passim-. Records of the Presbyteries ofInverness and Dingwall, 1643-88, ed. W. Mackay, (Scottish History Society[SHS], Edinburgh, 1896); A. S. MacWilliam, “The Jesuit mission in UpperDeeside, 1671-1737”, IR, xxiii (1972), 22-39, and “A Highland Mission:Strathglass, 1671-1777”, IR, xxiv (1973), 75-102.Pish Franciscan Mission to Scotland, 1619-46, ed. C. Giblin (Dublin, 1964);Minutes of the Synod of Argyll, 1639-61, 2 vols., ed. D. C. Mactavish, (SHs!Edinburgh, 1943-44); D. Maclean, “Catholicism in the Highlands and Isles!560-1680
, IR, iii (1952), 5-13; J. L. Campbell, “The MacNeils of Barra andthe Irish Franciscans”, IR, v (1954), 33-38; A. Ross, “Dominicans andScotland in the Seventeenth Century”, IR, xxiii (1972), 40-75; M. Dilworth,Benedictine Monks of Ratisbon and Wurzburg in the seventeenth and
eighteenth centuries: Emigres from the Highlands of Scotland”, Transactionsoj the Gaelic Society of Inverness, xliv (1967), 94-1 10; Anson, UndergroundCatholicism, 38-43, 57-60, 69-72.
31
Islands can be identified with clan affiliations not just landedhouseholds. However, the optimistic accounting of thousands ofconversions in the course of these Irish missions cannot bedissociated from their desperate need to attract funding fromPropaganda. The Highlands and Islands, no less than theLowlands, were in direct competition for finite missionaryresources with potentially more fertile areas for conversion in theFar East, Asia Minor and the Americas. Priests serving in theHighlands and Islands at any one time rarely numbered more thansix; the numbers serving concurrently on the Scottish Mission as a
whole prior to 1685 usually fluctuated between 12 and 20. 13
Recusancy after 1685 was marked by a distinct increase in the
number of converts from Protestantism. The general toleration,
first proposed as a concession for private worship in 1686, but
expanded on the strength of the royal prerogative during 1687 into
a public indulgence conditional on discreet and orderly behaviour,
lasted barely two years and was sandwiched between anti-popish
riots in Edinburgh. Nonetheless, the brief reign of James VII, a
conscientious but impolitic papist, afforded Catholics their only
opportunity in the seventeenth century to worship and propagate
their faith free from harassment by the Kirk. Although a native
college for the training of priests remained an unfulfilled requisite,
Holyroodhouse became the centre of Catholicism in Scotland with
a chapel run by the secular clergy, a Jesuit college and a printing
press for devotional tracts and liturgical books. As a further aspect
of royal patronage, regular subventions were despatched abroad
not just to the Scots colleges to promote the training of priests, but
to the Schottenkloster in Ratisbon, Erfurt and Wurzburg to
contribute to the supply of missionaries and, in particular, to
ensure that Ratisbon and Wurzburg sent Benedictine monks to
participate directly in the Scottish Mission. 14
Although the deposition of James VII in 1689 meant that
Catholics had to go underground once more and ceased being
subsidised by the crown, the king’s refusal to sacrifice his faith for
his throne stiffened the resolve of recusants not to be reconciled to
Protestantism. His four-year reign, moreover, had laid the
groundwork for a marked upsurge in apostacy from Protestantism
which continued to draw strength from the close public
92-98, 434-35; xiii, pp. xviii-xix, xxiii, xxv-xxvi, xxix, xl, xliii-xlv, xlix; M.
Dilworth, The Scots in Franconia, (Edinburgh & London), 127-43; Donaldson,
James V to James VII, 380-83; Anson, Underground Catholicism, 78-79,
82-85; R. A. Hay, Genealogie of the Hayes of Tweeddale (Edinburgh, 1835),
54-58.
32
identification of Catholicism with the exiled house of Stewart. 15
Indeed, in the Highlands and Islands, despite a continuing shortage
of Gaelic-speaking priests, there was a pronounced drift towards
Catholicism in the wake of the Revolution settlement. Apart from
their claim to the teinds, the restored presbyterian establishment
was virulently antipathetic to the medieval religious heritage on
which the outgoing episcopal regime no less than the Catholic
missionaries had drawn. 16 In his caustic complaint of 4 May 1704,
to the presbytery of Kincardine O’Neil, James Robertson, minister
to the united parishes of Glenmuick, Tullich and Glengarden cited
54 Catholic households containing 168 people of whom 134 (80%)belonged to families which had apostatized in the past twenty
years. The openly contemptuous attitude to presbyterian authority
exhibited by his recusant parishioners in Upper Deeside — mainlyMacGregors and Stewarts — he attributed despairingly to their
renegade tendencies as levyers of blackmail over neighbouringLowland parishes. 17
More positively, Catholicism was given a unifying nationalfocus in 1694 with the appointment of Thomas Nicholson as vicar-
apostolic. (The canonical authority exercised by prefects-apostolicsince 1653 — commencing with William Bannatyne, an apostateson of the parish minister at North Berwick — was in practice thatof an archpriest over the secular clergy and their flocks in theLowlands.) 18 Although Nicholson — a regent in the university ofGlasgow for fourteen years prior to his apostacy in 1682 — did nottake up his duties in Scotland until 1697 and another four yearswere to elapse before the Jesuits made a formal and completesubmission to the authority of the vicar-apostolic, the improvedstanding of the Scottish Mission in the eyes of Propaganda ensuredthat the number of serving priests rose steadily above 30 by 1707. 19
A further consequence of the resurgence in Catholic fortunes
IS
16
17
in
19
SRO, CH1/2/5/2, Church Papers, fos. 149-75; CH1/2/5/3, Church Papers,fos. 176-205; Lists of Popish Parents and Their Children in Various Districtsof Scotland as given in to the Lords of the Privy Council and to theCommission of the General Assembly, 1701-05”, in Maitland Club Miscellany
,
m, (Maitland Club, Edinburgh, 1843), 387-440; B. Neveu, ‘‘A Contribution toan Inventory of Jacobite Sources”, in Ideology and Conspiracy: Aspects ofJacobitism, 1689-1759, ed. E. Cruikshanks (Edinburgh, 1982), 138-58; M.Dilworth, ‘‘The Scottish Mission in 1688-89”, IR, xx (1969), 68-79.J. Maclnnes, ‘‘Gaelic Religious Poetry, 1650-1850”, RSCHS, x (1948), 31-53;D. Maclean, “The Presbytery of Ross and Sutherland, 1693-1700”, RSCHS v
wo25uV
61: W ‘ Ferguson> “The Problems of the Established Church in thewest Highlands and Islands in the Eighteenth Century”, RSCHS, xvii (1969),15-31; V. E. Durkacz, The Decline of the Celtic Languages (Edinburgh, 1983)!
SRO, CH1/2/5/3, Church Papers, fo. 189.J. Daragh, The Catholic Hierarchy of Scotland (Glasgow, 1986), ix,Anson, Underground Catholicism, 90-111.
1-3, 5-7.
33
brought about by apostacy and the relatively steadier flow of nativepriests back to Scotland following training at the Scots colleges andto a lesser extent at the Schottenkloster, was the appointment in
1705 of a coadjutor to Nicholson, James Gordon, titular bishop ofNicopolis. Unlike Nicholson, Gordon was not a convert but hadbeen brought up as a Catholic in a family which had figuredregularly in lists of recusants since 1622, namely the Gordons ofLetterfourie from the Enzie district in Banffshire where,incidentally, Nicholson had been based since his arrival and whichwas to remain the strategic centre of Catholic activity in Scotlandthroughout the eighteenth century. 20
Apart from the Enzie district which straddled the parishes ofRathven and Bellie, which contained Gordon Castle, the seat of the
house of Huntly (now dukes of Gordon), another 61 rural districts
or towns can be identified as having a significant Catholic presence,
that is, at least five families established in the community between1685 and 1707. While 27 districts or towns had admittedly no morethan ten Catholic families and a further 16 districts or towns had at
least 11 but no more than 50 Catholic families; four communities
had between 51 and 100 families; 12 communities, predominantly
Highland, but including Bellie and Edinburgh, had between 101
and 500 families and three communities South Uist, Moidart andGlengarry had over 500 families. Vital for the sustenance of
recusancy as a family enterprise was the ready assumption by
women of the responsibilities of catechists and school-teachers,
tasks generally neglected hitherto even within concentrated pockets
of identifiable recusancy. 21
Since the Revolution, only Arisaig and South Uist had been
added to Glengarry and Barra as Catholic districts in the Highlands
and Islands where the indigenous recusant communities were
provided with schools. There were a further eight schools in the
Lowlands: two in the north-east at Bellie and in Rawes of Huntly
where a skinner, William Brown, and his sister, Elspeth, attracted
pupils from as far afield as Edinburgh; one in the hamlet of
Campsie, in the parish of Cargill, run by Anna Hay, the wife of a
fisher, drew pupils from the mushrooming Catholic communities
on Tayside. The capital itself was served by five schools, the most
superior being apparently that of Margaret Thomson, wife of an
apostate physician, which offered “sewing, playing and singing”
and boarded the daughters of nobility. Moreover, the commercial
expansion experienced by Edinburgh and its surrounding districts
20 Dilworth, The Scots in Franconia
,
199-21 1; Memoirs of Scottish Catholics, ii,
186-87, 208-14; RPC, 1st ser., xii, 681-82; 2nd ser., ii, 506-07; iii, 407, 547,
551; iv, 40, 67-68, 230-32, 236, 599, 621-22.
21 SRO, CH1/2/5/2, Church Papers, fos. 149-75; CH1/2/5/3, fos. 176-205;
Maitland Club Miscellany, iii, 387-440; D. Maclean, “Roman Catholicism in
Scotland in the reign of Charles II”, RSCHS, iii (1929), 43-54.
34
in the later seventeenth century, complemented by the growth of
ancillary social services, not only augmented the Catholic
community but afforded greater cover for trafficking papists.
Catholic migrants among entrepreneurs and workers ranged from
Peter Bruce alias Braus, the “ingyneir Germane”, whose house in
the Canongate was the initial target of anti-popish rioting at the
outset of 1686, to four ladies from Bellie who settled as spinners to
‘‘work at the cloth manufactory” in Musselburgh from 1700.
While doctor of medicine remained the most adopted guise for
Catholic clergy travelling throughout the country following their
arrival from the continent, priests based in and around Edinburgh
were able to diversify the licit ‘‘front” to their covert religious
activities by running dancing schools, setting up as singing masters
or practising as papermakers. 22
Notwithstanding the fulminations of the Kirk against the
covert activities of papists and its persistent hounding of the regular
and secular clergy, Roman Catholicism posed no sustained nor
serious threat to the civil or religious establishment in Scotland
during the seventeenth century. Despite the radical transformation
of Catholicism into a community-based faith by the outset of the
eighteenth century, recusancy remained a minority pursuit between1603 and 1707. Professed papists probably never amounted to
more than 2% of the total Scottish population. 23 In comparativeterms, recusants in Scotland were considerably less numerous, less
organized and less cohesive than in England where the abortive
Gunpowder Plot of 1605 effectively marked its international
demise as a subversive force, albeit doubts continued to linger
within establishment circles in both countries throughout the
seventeenth century whether the political allegiance of individual
Catholics accorded priority to the papacy or the crown. 24
Nonetheless, Catholicism in Scotland exercised an influenceon public affairs out of all proportion to its relative numericalstrength, partly because the distancing of the political nation fromthe crown after 1603 magnified the sympathetic hearing accordedto prominent recusants at court — where the wife of eachsuccessive monarch was a professed papist prior to 1689 — but
" SRO, CHl/2/5/2, Church Papers, fos. 149-54, 167; CH1/2/5/3, fos. 177,182, 187, 203; Maitland Club Miscellany, iii, 396-403, 423-29; RPC, 1st ser., x,
251, 671-73; 2nd ser., i, 211; 3rd ser., xi, 602-04; xii, 30-32, 41-43, 92-93.Maclean, RSCHS, iii, 43-54; J. Darragh, “The Catholic population ofScotland since the year 1680”, IR, iv (1953), 49-59; Anson, UndergroundCatholicism, 15-16.
J. Bossy, “The English Catholic Community, 1603-1625”, in The Reign ofJames VI and I, ed. A. G. R. Smith (London, 1977), 91-105; T. M. McCoog,The Creation of the First Jesuit Communities in England”, The Heythorp
Journal, xxviii (1987), 40-56; J. Lauder of Fountainhall, Historical Observesof Memorable Occurents in Church and State, 1680-86 (Bannatyne ClubEdinburgh, 1840), 34-38.
35
principally because of Protestant apprehensions about theCounter-Reformation. As the only national church in Europecommitted to Calvinism but uncompromised (apart from the nine-year Cromwellian interlude during the 1650s and the brief reign ofJames VII) by the need to tolerate other religious groups in theinterests of political expediency, the reformed Kirk, whether underepiscopacy or presbyterianism, upheld vehemently its international
responsibilities to maintain a watching brief over the fate ofProtestantism in general and of Calvinist minorities in particular:
notably when Catholic expansionism was allied to political
absolutism, as occurred under the Spanish and Austrian Habsburgsduring the Thirty Years’ War and subsequently under Louis XIV ofFrance. Indeed, the latter’s revocation of the Edict of Nantes in
1685, which peremptorily undid the uneasy toleration accorded to
Huguenots over the past eighty-seven years, did much to
compromise James VII’s ill-founded hopes for effecting public
acceptance of toleration for his fellow Catholics. 25 In the interim,
Protestant apprehensions were intensified by events in Ireland
during the 1640s, when the rebellion in Ulster which precipitated
the formation of the Catholic Confederacy threatened not only to
engulf Scottish as well as English colonists, but appeared to pose an
imminent military threat to the constitutional achievements of the
Covenanting movement in Kirk and state.26
From an international as well as a national perspective, the
repeated re-issue and amplification of the penal laws in the
seventeenth century was designed partly to appease, but primarily
to manipulate, Protestant apprehensions about the Counter-
Reformation in order to entrench the political power of successive
regimes ruling Scotland from the union of the crowns to the union
of parliaments. Before proceeding to a sequential examination of
the implementation of the penal laws against recusants, one caveat
must be borne constantly in mind. Records of persecution on the
Catholic side were normally compiled by the clergy who were
subject to incessant hounding and, if apprehended, to permanent
banishment, albeit such sentencing was noted more for its breach
25 “Extracts from the Registers of the Presbytery of Glasgow, 1603-26”, in
Miscellany of the Maitland Club , i, (Edinburgh, 1834), 427; “Proceedings of
the Commissioners of the Kirk at a Meeting in Edinburgh in July 1627”, in
Bannatyne Miscellany , iii (Edinburgh, 1855), 222-23; Fountainhall, Historical
Observes ,219-20, 224-26, 229-30; W. Ferguson, Scotland’s Relations with
England: a Survey to 1707 (Edinburgh, 1977), 114-15, 161-62; D. Maclean,
The Counter-Reformation in Scotland, 1560-1930 (Edinburgh, 1931), 86-178.
Scottish Covenanters and Irish Confederates (Belfast, 1981), 43-102.
36
than its observance. 27 The undoubted sufferings and privations
endured for their faith by the clergy as principal victims of the
penal laws should not obscure the relative leniency accorded to
recusants and their resetters, notably in relation to other religious
dissidents.
Prior to their codification and collation in 1609, the penal laws
against Catholic clergy, recusants and their resetters were partially
re-enacted twice — in 1604 and 1607 — following the departure of
the court south at the union of the crowns. On all three occasions,
James Vi’s primary purpose seems to have been directed towards
stilling presbyterian unease about his insinuation of episcopacy into
the Kirk and, more especially, offsetting his punitive action against
the Melvillian faction whose leadership in the course of 1606 was
subjected variously to detention in London, banishment from
Scotland for life or internal exile in northern districts remote fromthe central belt.
28 In the event, James instigated no complementarypurge against recusants. Notwithstanding the covert diplomatic
activities of leading recusants prior to 1603, Roman Catholicism
was all but a spent force politically by the union of the crowns, a
situation reflected in James’ relative forbearance towards Catholic
nobles. Despite its fleeting appearance during 1607, ostensibly as a
confederacy of Catholic gentry, the “Society of Boyis” was not so
much a political pressure group as a territorial grouping of kinsmenand local associates intent on upholding Gordon hegemony in the
north-east. 29
James’ arrival in England had led to the regular application offining, sufficient to stifle the development of Catholicism and toensure that leading recusants were made to feel uncomfortable, butnever desperate far less rebellious. Greater forbearance continuedto be the key to the disciplining of leading Scottish recusants.Albeit George Gordon, sixth Earl (later first Marquis) of Huntlyand Francis Hay, ninth Earl of Errol, were imprisoned respectivelyin the castles of Stirling and Dumbarton, they were liberated at theoutset of 1611 on the understanding that they would restrict theirmovements to the confines of their estates pending remedial
Narratives of Scottish Catholics, 275-350; Memoirs of Scottish Catholics, i,
passim; ii, 1-232; Irish Franciscan Mission to Scotland, passim; Hay, TheBlairs Papers, 254-55; W. J. Anderson, “Prefect Ballantine’s Report, circa1660”, IR, viii (1957), 39-66, 99-129.APS, iv, 264, 371, 428, 430; RPC, 1st ser., vii, p. lx, 283; viii, pp. xxix-xxii,231-32, 550-52; J. Spottiswood, The History of the Church of Scotland, 3 vols.(Bannatyne Club, Edinburgh, 1850-51), iii, 157-64, 179-83, 194-95; J. Row,The History of the Kirk of Scotland (Wodrow Society, Edinburgh, 1 842)1227-49; D. Calderwood, The History of the Kirk of Scotland, 8 vols. (Wodrow
„S°ciety. Edinburgh, 1842-49), 248-51, 284-92, 556-89, 610-11, 677-79, 752-68BPC, 1st ser., vii, 509; viii, 218, 271-72, 275, 298; R. Pitcairn, Ancient'-riminai Trials in Scotland, 3 vols. (Maitland Club, Edinburgh, 1833), ii,532-35; Donaldson, James V to James VII, 188-94, 216, 220.
37
religious instruction. Full freedom of movement was restored toboth in 1613. Although a handful of Catholic gentry had moveableproperty confiscated and were forced temporarily into exile
overseas, no attempt was made to forfeit recusants, howevercontumacious in the eyes of the Kirk. Indeed, considerableopposition was voiced in the convention of estates of 1609, whichratified the codification and collation of the penal laws, towardsthe proposal that bishops should submit annual lists ofexcommunicated recusants and apostates to the exchequer andchancery, effectively making land transfers conditional on clerical
testimonials. Indeed, such was the strength of opposition to anepiscopal veto on the inheritance, gift, mortgage or sale of lands
that this proposal, though duly enacted, was never implemented in
the course of the seventeenth century. 30
The determination of the bishops to demonstrate forcibly their
leadership of the Kirk, following on from the full restitution ofepiscopal authority ratified by parliament in 1612, led to a
markedly vindictive phase in the application of the penal laws,
characterized by comprehensive judicial commissions and the
instigation of treasonable proceedings against Catholic clergy,
recusants and their resetters. The judicial commissions secured
from the privy council empowered bishops to take the initiative in
searching out Catholic clergy, recusants and resetters as well as
stamping out practices redolent of lingering Catholicism —notably, perennial pilgrimages to chapels, wells and crosses, andthe seasonal observance of festival days, carol-singing, bonfires
and guising. The most intemperate episcopal prosecutor was JohnSpottiswood, then archbishop of Glasgow, who had served notice
of his anti-Catholic zeal in 1609 by forcibly gaining entry to the
house of the aged Gilbert Brown, last abbot of Newabbey, in order
to remove books, sacramental artefacts, icons and vestments for
public burning in the high street of Dumfries. Having made an
unlicensed return to Scotland the previous year, Brown had been
allowed to remain in and around Dumfries by the council,
ostensibly on account of his infirmity but also in the interests of
public order, since the initial attempt to secure his arrest by a
contingent of the king’s guard on his return from banishment had
led to an armed riot by sympathisers drawn to the town from
The trial and conviction of James Stewart alias “James of
Jerusalem”, as the principal resetter of priests in Edinburgh,
heralded a more vigorous approach to the containment of
recusancy under episcopal direction from November 1613, albeit
this far-travelled cadet of the Ochiltree family from Ayrshire was
not obliged to leave the country for another 18 months though
sentenced to perpetual banishment. In the interim, this markedly
vindictive phase of prosecutions for treason culminated in the
capital indictment of John Ogilvy in Glasgow in February 1615,
after three months of exhaustive questioning unrelieved by torture,
mainly in the form of protracted sleep deprivation. Ogilvy was
convicted of treason less for his activities as a Jesuit priest than for
his uncompromising denial of the royal supremacy in Kirk andstate, his conviction serving warning to Melvillians no less than
Catholics about the perils of denying the royal supremacy. 32
That no more professed papists were executed was not entirely
by design on the part of central government. Three priests over the
next eleven years — all Jesuits — faced execution, but their
sentences were commuted into banishment from Scotland for life.
Indeed, Robert Moffat, who was apprehended in St Andrewsaround the same time as Ogilvy was being detained in Glasgow andwas likewise tortured prior to conviction on charges of treason (for
his activities as a priest), was sentenced to perpetual banishmentrather than capital punishment after throwing himself on the mercyof the specially constituted High Court of Justiciary in October1615. Two months earlier, Moffat’s three main resetters in
Edinburgh were actually sentenced to death following charges oftreason coupled to the threat of torture and were only saved fromthe gibbet erected at Edinburgh cross by a last minute reprieve fromcourt which commuted their capital punishment into perpetualbanishment overseas for William Sinclair, advocate, and RobertWilkie, embroiderer, and into internal exile for RobertCruikshank, stabler, who was ordered to quit Edinburgh. Chargesof treason were also preferred against the three main resetters ofJohn Ogilvy in and around Glasgow. But their trial, whichcommenced in September 1615, was adjourned for four monthsand then terminated in favour of the accused being bound over asto their future conformity for sureties ranging from 10,000 merks
RPC, 1st ser., x, 65, 118, 126, 169, 205, 251, 284-86, 299, 303-07, 318, 327,336-37, 364, 369, 371-77, 459-60, 671-73, 813-14; Pitcairn, Ancient CriminalTrials, iii, 252-57, 330-54; Spottiswood, History of the Church of Scotland,222-27; Calderwood, History of the Kirk of Scotland, vii, 193-97, 202; W.McMillan, “Robert Philip, Father Confessor to Henrietta Maria”, RSCHS, ix(1947), 83-96; W. J. Anderson, “A Jesuit that calls himself Ogilvie”, IR, xv(1964), 56-65; J. Durkan, “Sidelights on the Early Jesuit Mission in Scotland”,ScoU/5/1 Tradition, xiii (1984-85), 34-45; Narratives of Scottish Catholics,^96-3 1
6
.
39
(£6,666 13s. 4d.) for Sir James Clelland of Monkland, 5,000 merks(£3,333 6s. 8d.) for William Maxwell of Cowglen and 500 merks(£333 6s. 8d.) for Robert Urie, writer in Paisley. 33
This markedly vindictive phase in the prosecution of Catholicclergy, recusants and their resetters had all but passed by 1616when, paradoxically, the penal laws were reissued and amplified to
the extent of bringing all subsequent prosecutions within the scopeof the Courts of High Commission, creations of the royal
prerogative and dominated by the bishops. The reissue of the penal
laws signalled the commencement of James Vi’s liturgical
programme, a programme which emerged in modified form as the
Five Articles of Perth at the general assembly of 1618. The primarypurpose of reissuing and amplifying the penal laws was again to
still presbyterian unease about the royal direction of the Kirk
through a compliant episcopate. There was no systematic renewal
of treasonable prosecutions of Catholic clergy, recusants and their
resetters, however. Forbearance was once more the royal
watchword. A few Catholic gentry indicted before the council as
recusants were given the option of conforming or quitting the
country for an indefinite period. Those who opted for exile but
subsequently returned without licence after several years of
banishment were admonished rather than subjected to swingeing
fines, confiscation of their moveable goods or sequestration of
their rents and revenues. 34
The final proclamation reimposing the penal laws during the
reign of James VI was issued in June 1624, in response to
Protestant apprehensions about the king’s well publicised
endeavours to match his heir, Prince Charles, with the Spanish
Infanta. These apprehensions were aggravated by unconfirmed
reports that the generous dispensations from the English penal laws
accorded to Catholic courtiers were to presage a general toleration
for recusancy throughout the British Isles and were intensified by
provocative rumours circulated by dissident presbyterians that the
of the Kirk of Scotland, 302, 306-07; Calderwood, History of the Kirk of
Scotland, vii, 222-27, 488, 514-15.
40
purpose of the private conference of Scottish bishops and selected
ministers at St Andrews in April 1623 was to seek a measure of
accommodation between the Kirk and Rome. Reimposition of the
penal laws by proclamation also served to give the impression of
even-handedness in the king’s dealings with nonconformists,
whether papists or puritans, a term of disparagement applied to
Presbyterians refusing to accept the Five Articles of Perth though
ratified by parliament in 1621. 35 In practice, punitive sanctions
were directed primarily at, and were largely restricted to,
conventiclers, the lay vanguard of the nonconformist presbyterians
particularly prominent among the mercantile community of
Edinburgh. Conventiclers were first warded outside the capital andthen fined up to £2,000 following prosecution by the Court of HighCommission, albeit extensive punitive proceedings were delayed bythe coincidence of the plague and the death of James VI in 1625. 35
The most vigorous and systematic enforcement of the penallaws against recusants between 1603 and 1707 occurred during thepersonal rule of Charles I. The reissue and amplification of thepenal laws in 1629 culminated an episcopal campaign againstrecusancy whose nationwide implementation from the spring of1627 had served to deflect criticism about the bishops’ truculentand unco-operative attitude towards the revocation scheme ofCharles I, especially their reluctance to concede that the teinds,claimed as the spiritual patrimony of the Kirk, could beredistributed at the dictate of the crown. The campaign againstrecusancy was promoted to repair the political standing of bishops,not to delay the revocation scheme indefinitely, however. Thecampaign was targeted principally at the removal of prominentpapists from public office and, if necessary, the forcing ofcontumacious recusants into exile overseas but not at thewholescale expropriation of Catholic nobles and gentry. Inparticular the bishops, as mouthpieces for the Protestantestablishment north of the Border, were implacably opposed toCharles’ granting of individual dispensations to recusant noblesand gentry on personal application at court where the king’s French
' 6°°'27: D ’ S,evenson> “Conventicles inne Kirk, 1619-37
, RSCHS, xvm (1972-74), 99-114.
41
consort, Queen Henrietta Maria, was making Catholicism afashionable pursuit. 37
The punitive thrust of the episcopal campaign was directed
notably against female recusants with little apparent respect beingaccorded to age or physical condition. However, the council did
interject, when reissuing the penal laws, that if husbands ofprofessed papists accepted responsibility for the nonconformingconduct of their wives, the range of sanctions applicable to the
landed classes for resetting Catholic clergy or excommunicatedrecusants would be limited to moderate fines rather thansequestration or forfeiture. Nonetheless, particularly harsh
treatment was meted out to Dame Marion Boyd, dowager Countessof Abercorn, for her patent contempt (as an apostate) to her
excommunication, as earlier to all efforts at remedial instruction
from local ministers in and around Paisley. After her first warding
in Edinburgh at the outset of 1628, she was confined in various
houses outwith the west of Scotland at the behest of the council
before being allowed to return to Paisley to die in March 1631 . Herson, James Hamilton, second Earl of Abercorn, was so discomfited
by the harassment accorded to his mother and himself by the clergy
in the presbytery of Paisley and diocese of Glasgow that, by 1630,
he was reportedly prepared to withdraw his family to his estates in
Ulster and establish his plantation at Strabane, in County Tyrone,
as a refuge for his persecuted Catholic countrymen. 38 At no time
throughout its three-year duration, however, did the episcopal
37 The Earl of Stirling’s Register of Royal Letters, Relative to the Affairs of
Scotland and Nova Scotiafrom 1615 to 1636, 2 vols. (London, 1885), i, 26, 62,
38 Stirling’s Register of Royal Letters, i, 379, 384; ii, 607-08, 688; RPC, 2nd ser.,
ii, 327-28, 334, 343-44, 392, 596-97; iii, 96-97, 109-10, 126, 170, 21 1-12, 245; iv,
83, 179, 253-54, 285, 363, 396, 417; viii, 366-67; Memorials of the Earls of
Haddington, ii, 165-66; Memoirs of Scottish Catholics, i, 362-65; Row.
History of the Kirk of Scotland, 348-49; Calendar of State Papers relating to
Ireland, 1625-32, ed. R. M. Mahaffey, (London, 1900), 509, 511, 513; W. M.
Metcalfe, A History of Paisley, 600-1908 (Paisley, 1909), 233-41.
42
campaign against recusancy amount to “a storm of persecution”
marked by the indiscriminate application of the penal laws. 39
While leading Catholics, such as the Marquis of Huntly and
Robert Maxwell, first Earl of Nithsdale, withdrew prudently from
public life at the outset of the episcopal campaign, Huntly’s eldest
son (and heir as second marquis) George, Lord Gordon, together
with George Seaton, third Earl of Winton, retained membership of
the privy council and even sat in on sessions amplifying the penal
laws during November 1629 — albeit both had been expediently
absent from the reissue of the laws four months earlier — andsubsequently continued to play an active, if unobtrusive, part in
public life throughout the personal rule of Charles I. The mostnotable success of the episcopal campaign against recusancy wasthe reconciliation to the Kirk in March 1630 of Huntly’s brother-in-
law, George Sinclair, fifth Earl of Caithness, which was achieved
without recourse to civil sanctions. The reimposition of the penal
laws served also to persuade the house of Huntly of the expediencyof surrendering the heritable sheriffdoms of Aberdeen andInverness, a surrender which yielded compensation of £60,000 andmade no more than a marginal dent to the Gordon family’s
territorial spheres of influence in the north-east. 40
Indeed, the general exercise of circumspection by Catholicnobles fortified the resolve of the privy council, when reissuing andamplifying the penal laws in 1629, that the prosecution of recusantsshould be discretionary not draconian which, in turn, caused theepiscopal campaign to run out of momentum. Clerical zeal to flushout professed papists was all but dampened by the summer of1631. 41 Of particular significance for the council’s assertion ofcontrol over the implementation of the penal laws was the award ofcommissions of justiciary for the apprehension of priests andfriars, excommunicated recusants and their resetters not to bishops(as in the reign of James VI) but to selected nobles, gentry andburgesses with a mere handful of clergy specified more as observersthan participants. Contumacious recusants opting for exile ratherthan conformity after their apprehension, on condition they gavean undertaking not to plot for the overthrow of the Protestantestablishment in Kirk and state, were offered a maintenance
Memoirs °f S(:ottish Catholics, i, 13-109; Anson, Underground Catholicism,
Stirling’s Register of Royal Letters, i, 390; ii, 428; RPC, 2nd ser., ii, 3, 94,117- 18
allowance of a third portion from their sequestrated rents andrevenues.
In total, no more than 35 members of the landed andcommercial classes (and their spouses) were actually brought beforethe council during the twelve months the commissions of justiciary
were operative. Although most of those apprehended weredomiciled in the north-east, a special commission of six months’duration for the suppression of popery in that region, awarded to
Lord Gordon at the outset of 1630, ensured that only the mostincorrigible and demonstrative recusants were penalized materially
and imprisoned or exiled. Contumacious recusants were required to
find sureties ranging from £500 to 1,000 merks (£666 13s. 4d.) to
conform to the Kirk or quit the country. While the number whoconformed voluntarily was negligible only a few of those opting for
exile actually left the country, for the council insisted that the mostincorrigible and demonstrative recusants must receive remedial
religious instruction. Rather than have to undergo prolonged
imprisonment in Edinburgh, such recusants received remedial
instruction when warded in towns outside, but less distant from,
their own domains. Because indebtedness among recusants opting
for exile exposed their rents and revenues to exploitation by
unscrupulous creditors, their absence from their estates was
partially ameliorated by the practice of the crown not only in
setting aside a third of sequestered rents and revenues as a
maintenance allowance but in apportioning the remainder, along
with escheated moveables, to the trusteeship of sympathetic
kinsmen, friends and local associates. Furthermore, banishment
during the personal rule of Charles I tended to be measured in
months rather than years because of the ease with which licences
for the return of exiled recusants could be procured at court.42
As well as the discretionary implementation of the penal laws
exhibiting class bias, their scope was restricted geographically
during the personal rule of Charles I. The Highlands and Islands,
despite concern expressed within official circles about the
proselytising activity of the Franciscan Mission, were largely
unaffected by the episcopal campaign against recusancy. No more
than four chiefs figure among the papists cited in the records of the
privy council. None faced punitive sanctions for recusancy, not
even John MacDonald of Moidart, chief of Clanranald, whose
followers in South Uist during 1630 had liberated the Franciscan
friar, Patrick Hegarty, from the custody of the bishop of the Isles
617-22, 626, 668; Memoirs of Scottish Catholics, i, 366-72; British Library,
MS. Add. 23, 112, fo. 85, Registers of the Secretaries of State of Scotland, vol.
iii, 1635-40.
44
(John Leslie, later bishop of Raphoe in Ireland). 43 Four years
earlier, the chief of Clanranald had despatched a celebrated letter
to the papacy offering to launch a military campaign from the
western seaboard to bring Scotland back to “the true apostolic
Roman faith”. But, this Clanranald crusade was less a realistic
project for Counter-Reformation than a despairing effort to secure
gainful employment for clansmen denied livings as mercenaries in
Ireland following the plantation of Ulster at the outset of the
seventeenth century and, more pertinently, an opportune attempt
to secure international mediation for MacDonald of Moidart’s
failure to account annually to the council for the conduct of
himself and his clansmen during the 1620s (a failure which carried
the financial sanction of 10,000 merks for each default). 44 TheClanranald crusade, however, did serve to signpost that mercenarycontacts between the western seaboard and northern Ireland hadgiven way to religious, with the advent of the Franciscan mission.
Of greater significance than the letter to the papacy in 1626 was the
establishment of Bonamargy friary on the Antrim coast as the
centre for directing the Franciscan mission to Gaelic Scotland as
well as a recuperating haven for friars fatigued by their peripatetic
work of conversion in the Highlands and Islands. That hundredsshould cross annually from the western seaboard to Bonamargy forconfirmation, as there was no bishop in Scotland, and evenbaptism in the course of the 1630s was not so much a reflection ofthe continuous prosecution endured by recusants as a commentaryon the telling lack of clerical support in the field to complement theinitial proselytising of the Franciscan friars.
45
The National Covenant which formally launched the revoltagainst the personal rule of Charles I in February 1638 wasstridently anti-popish, commencing with a detailed, if selective,rehearsal of parliamentary enactments affirming that loyalty to thecrown was conditional on the expunging of idolatrous,superstitious and popish practices from the Kirk. Such legislativeprecedents for the removal of erroneous doctrine and prejudicalpractices culminated with the collation and codification of thepenal laws in 1609 which, in turn, served to press the urgency of anuncompromising Protestant crusade. 46 But, this crusading impetus
4-81; Anson, Underground Catholocism, 38-43.Source Book of Scottish History
, iii, edd. WOonaldson (London, 1961), 95-104; APS, v, 272-76
45
was somewhat abated when, six months after the promulgation ofthe National Covenant, the public recantation of ThomasAbernethie, a Jesuit, revealed that no more than 18 priests wereoperative within Scotland in contrast to over 6,000 in England. Atthe same time, covert contacts with Cardinal Richelieu, establishedthrough his almoner Abbe Chambre alias Thomas Chalmers led to
this expatriate Jesuit being deployed expediently by the
Covenanting movement as its unofficial ambassador to the Frenchcourt.'*
7
Notwithstanding the initial achievement of a presbyterian
reformation in 1638, the objectives of the Covenanting movementover the next thirteen years were primarily secular: notably, the
maintenance of permanent constitutional checks on absentee
monarchy in the state as well as the Kirk; the seizure and retention
of political and military initiative within the British Isles to
safeguard the Scottish revolution; and, ultimately, the repulsing of
Cromwellian occupation in the aftermath of the English execution
of Charles I in 1649. Thus, despite virtual annual exhortations
from the general assembly for the reimposition of the penal laws
which threatened to place the Catholic missionaries and their lay
adherents in a sustained state of siege between 1638 and 1651, the
reissue and amplification of the penal laws was countenanced ononly three occasions — 1640, 1642 and 1647 — to serve the political
ends of the central oligarchy directing the Covenanting movement.While the absolute exclusion of Catholics from public office was
maintained nationally throughout the thirteen years of
Covenanting hegemony, few recusants were faced with a civil
directive to conform to quit the country. 48 Nonetheless, recusants
were driven by the threat, as well as the experience, of punitive
fines to seek refuge overseas usually within expatriate communities
of co-religionists, a popular option being military service in the
Scottish regiments retained by the French crown. 49
Undoubtedly, Catholics were readily identifiable targets for
punitive sanctions because of their tendency to associate actively
with the royalist cause and the presumption within the Covenanting
leadership that anyone suspected of recusancy was a covert
royalist. Nonetheless, the demands for ideological conformity,
47 SRO, GDI 12/39/742, Breadalbane Collection; R. Baillie, Letters and
Journals, 3 vols. (Bannatyne Club, Edinburgh, 1841-42), 101-02; Hay, The
Blairs Papers, 126-28, 250-53; D. Stevenson, The Scottish Revolution, 1637-44
(Newton Abbott, 1973), 184-87.
4 » Records of the Kirk of Scotland, 1638-51, ed. A. Peterkin (Edinburgh. 1843),
of Scottish Catholics, i, 373-78; J. Durkan, “Some Scots in Rome in Rome’’,
IR (1976), 42-48; W. Baird, Account of the Surname of Baird (Edinburgh,
1857), 65.
46
financial supply and military recruitment generated by the
Covenanting movement exerted unprecedented pressures on the
whole of Scottish society. Hence, of greater significance than the
reissue and amplification of the penal laws on three occasions in
thirteen years was the extension of civil sanctions, hitherto
applicable to recusants and their resetters, to all opponents of the
revolutionary aspirations of the Covenanting movement,
opponents who were classified variously as anti-Covenanters,
delinquents and malignants between 1638 and 1651.
The promulgation of the penal laws in June 1640, served to
condition public support in favour of the Covenanting armyinvading England, an invasion undertaken to counter the build upof royalist forces outside Scotland reputedly inspired by papists,
prelates, atheists and traitors intent on reversing the movement’sconstitutional attainments in Kirk and state.
50 But, the exaction of
financial reprisals, not just from papists but from all deemed half-
hearted as well as antipathetic to Covenanting aspirations, was well
underway by the outset of the Bishops’ Wars in the spring of 1639
and continued until the crown at the prompting of the English
parliament sued for peace by the Treaty of London in August 1641.
Avowed and suspect papists were indeed subjected to civil
sanctions compounded by the devastation of their estates in the
course of Covenanting expeditions to quell internal dissent: mostnotably, the followers of the Marquis of Huntly in the north-eastfaced punitive fines and imprisonment during 1639 while damagesin excess of £15,000 sterling (£180,000) were inflicted on theDumfriesshire estates of the Earl of Nithsdale following theprolonged siege of Caerlaverock castle in the autumn of 1640.However, religious factors were of minimal consideration in theexaction of fines totalling 58,000 merks (£38,666 13s. 4d.) from thetown council and leading citizens of Aberdeen during 1639 whenthe city, as unwilling host to rival armed occupations, suffereddamages estimated at £133,000. 51 In general, members of thelanded and commercial classes reputed anti-Covenanters wereliable to have their ready monies and moveable propertyconfiscated, arms, crops and timber requisitioned for use of the
APS, v, 267, 596, 623, 646; The Intentions of the Army of the Kingdome of
MScotland, declared to their Brethren of England (Edinburgh, 1640).Hull University Library, DDEV/79/F; DDEV/79/H/49, Maxwell-Constableof Everingham MSS; J. Gordon, History of Scots Affairs, 1637-41, 3 vols.(Spalding Club, Aberdeen, 1841), iii, 1 62-69; P. Gordon, A ShortAbridgement of Britane’s Distemper, 1639-49 (Spalding Club, Aberdeen,844), 12-15; J. Spalding, The History of the Troubles and MemorialTransactions in Scotland and England, 1624-45, 2 vols (Bannatyne Club,
inburgh, 1828-29), i, 123, 141-147, 193-94, 273; Aberdeen Council Letters,
military as well as rents and revenues sequestrated, except for adiscretionary allowance of a third portion for the sustenance oftheir wives and children. Recusants featured in, but did notdominate, the rolls of delinquents compiled dutifully within theshires during 1641. Nonetheless, fines exacted from “unfriendes”realised no more than £108,895 9s. 8d., that is, less than 2% of all
public funds raised for the Covenanting movement from the outset
of the Bishops’ Wars until the conclusion of the Treaty ofLondon. 52 Indeed, in the two years following the promulgation ofthe penal laws in 1640, elements within the Kirk frustrated at the
relative lack of civil sanctions directed specifically at Catholicclergy, recusants and their resetters, re-channelled their punitive
zeal into “an orgy of iconoclasm’’, unleashed against such“idolatrous” trappings and “superstitious” manifestations as
crucifixes and crosses, as well as portraits of Christ and the Virgin
Mary. 53
In affirming that the penal laws could be asserted vigorously
after the massacre of Protestants in the autumn of 1641 byIrish rebels (who subsequently formed themselves into the
Confederation of Irish Catholics) the Covenanting leadership wasagain conditioning public opinion in favour of military
intervention in Ulster from the spring of 1642. The necessity of
maintaining an avenging presence in Ireland was to be propagated
for the next six years. 54 Further public conditioning occurred in the
wake of reports that Royalist forces in England, featuring
substantial contingents of Catholics, were mobilizing on the
Borders and were preparing to act in collusion with Irish Catholics
against the Covenanting movement, reports given added credence
by the capture of Randal MacDonnel, second Earl of Antrim, by
52 NLS, Wodrow MSS, quarto xxiv, fos. 150-51; SRO, PA16/3/5/3,
Supplementary Parliamentary Papers; Minute Book kept by the War
Committee of the Covenanters in the Stewartry of Kirkcudbright, 1640-41
(Kirkcudbright, 1855), 90-91, 99, 135; Gordon, History of Scots Affairs, iii,
93-98; Baillie, Letters and Journals, i, 213; Baird, Account of the Surname of
Baird, 69, 71; D. Stevenson, “The financing of the cause of the Covenants,
the Covenanting forces in Ireland in June 1643. The edited
correspondence of this noted Irish Catholic, duly publicized as the
“Antrim Plot”, identified the Royalist cause with a popish
conspiracy whose principal Scottish accessories were the Earl of
Nithsdale and James Gordon, Viscount Aboyne. The revelation of
the “Antrim Plot” served to facilitate Covenanting participation in
the first English Civil War on the side of the Parliamentarians
rather than the Crown, an alliance formalized that September by
the promulgation of the Solemn League and Covenant which
committed its subscribers to the extirpation of popery throughout
the British Isles.55
The parliamentary injunction that all papists under arms were
to be punished as traitors, coupled to the directive of the general
assembly that all rebels were to be excommunicated, heralded the
outbreak of civil war within Scotland from the summer of 1644. 56
The arrival on the western seaboard of three regiments recruited
almost exclusively from the Earl of Antrim’s estates in Ulster,
commanded by his Scottish kinsman Alasdair MacColla and
sponsored by the Confederation of Irish Catholics to link up with
the Royalist forces coalescing around James Graham, Marquis of
Montrose, occasioned a thirteen-month guerilla campaign which
obliged the Covenanting leadership to withdraw forces fromIreland and England. Although Montrose and MacColla wereunable to convert their brilliant series of military victories into
tangible political achievements, their campaigning was conductedwith unparalleled ferocity and resulted in unparalleled
devastations. 57 Despite the propaganda emanating from the Jesuit
priests accompanying the Irish regiments, the Royalist cause wasnever a Catholic crusade on the part of the Gael. Indeed, theCatholicism of the Irish Gael was not shared by a majority, far less
all, of the Scottish Gaels. The forces of Montrose and MacCollawere attended also by Protestant ministers. 58 Most clansmenhaving acquired a semblance of Protestantism during the episcopaldirection of the Kirk prior to 1638, the attested aversion toPresbyterianism among the Royalist clans cannot necessarily be
RPC, 2nd ser., vii, 407-09, 427-28, 442-44; APS, vi (i), 8-11, 38, 42; Spalding,The History of the Troubles, ii, 59, 98, 128-34; Stevenson, The ScottishRevolution, 270-83.
* APS, vi (i), 66-68, 191; Records of the Kirk of Scotland, 398.Reliquiae Celticae, ii, edd. A. Macbain and J. Kennedy (Inverness, 1984),180-83, 202-03; APS, vi (i), 642-43; vi (ii), 460-63, 544-47; Gordon, A ShortAbridgement of Britane's Distemper, 94-99; G. Hill, The Macdonnells ofAntrim (Belfast, 1873), 78-81, 90; E. J. Cowan, Montrose: for Covenant andRing (London, 1977), 176-77, 252-53; Stevenson, Alasdair MacColla, 260-61;
MSpalding, The History of the Troubles, ii, 265-69.Memoirs of Scottish Catholics, i, 263-358; Minutes of the Synod of Argyll, i,
19-23, 184, 216; Records of the Presbyteries of Inverness and Dingwall, 160,
49
equated with support for Catholicism. 59 These denominationaldistinctions were not altogether lost on the avenging Covenantingforces charged to mop up the last vestiges of resistance followingthe defeat of Montrose at Philiphaugh in September 1645.Reprisals over the next two years tended to discriminate on groundsof race rather than religion. Thus, captured Lowland gentry tendedto be ransomed, though a few were executed after the preferral ofcharges of treason. The process of law was also applied to clansmenwith the notable exception of around 300, mainly non-CatholicMacDougalls, massacred in Kintyre at the behest of presbyterian
zealots after surrendering Dunaverty Castle in June 1647. All Irish
troops were summarily executed on capture or surrender. 60
Prior to the outbreak of the Scottish civil war, there was nosystematic or indiscriminate victimizing of recusants despite the
promulgation of the penal laws in 1642 being held to have ushered
in the “tyme of hottest prosecution of papists heir in this land”.
Local commissions of justiciary were issued to apprehend Catholic
clergy and to suppress pilgrimages to wells, chapels and crosses, but
not to prosecute recusants and their resetters. Recusants prominentin the Royalist cause were liable to be fined half the rental value of
their estates, the Earl of Winton reputedly being twice fined
£36,000. Followers of the second Marquis of Huntly in the north-
east were not only subjected to punitive fines, but also obliged to
subscribe blank bonds making compulsory loans to the
Covenanting movement. 61 Although in the course of the civil war
the rents and revenues of Royalists were sequestered on a piecemeal
basis, no restrictions were ever placed on recusants managing their
own estates or exercising trusteeship over the estates of kinsmen,
friends or local associations incapacitated by age or infirmity. 62
In the aftermath of Philiphaugh, papists featured among the
leading Royalists forfeited for their association with Montrose and
MacColla. However, the most common sanction applied against
papists as against all others deemed malignant was punitive fining
55 D. Stevenson, Revolution and Counter-Revolution in Scotland, 1644-51
(London, 1977), 24; Cowan, Montrose ,180-81; Kirk, “The Jacobean Church
in the Highlands, 1567-1625”, 24-51.
60 Stevenson, Alasdair MacColla, 210, 229-30, 236-37, 240; G. Seton, A History
of the Family of Seton during eight centuries (Edinburgh, 1896), 226; The
Government of Scotland under the Covenanters, 1637-1651, ed. D. Stevenson
(SHS, Edinburgh, 1882), 7.
61 Spalding, The History of the Troubles, ii, 10- 1 22-23, 236, 252-53,
“Minutes of the Committee for Loan Monies and Taxations of the Shire of
Aberdeen, 1643-44”, in Spalding Club Miscellany, iii (Spalding Club,
62 Spalding, The History of the Troubles, ii, 286-87; “Rental of Lord Sempul,
1644”, in Archaeological and Historical Collections relating to the County of
Renfrew, ii (Paisley, 1890), 159-79; APS, vi (i), 462-65.
50
scaled to their degree of Royalist complicity: the liability of the
landed classes ranging up to six times the rental value of their
estates, that of the commercial classes being the confiscation of a
third of their monies and moveables. Although individual fines
were assigned to regiments to be uplifted by quartering, their
imposition was not rigorously implemented, partly because
malignants were liable to a further round of forced loans and partly
because the Covenanting leadership was not unsympathetic to the
resultant financial embarrassment of prominent families, Catholics
included. As against the sum of £108,895 9s. 8d. extracted from
delinquents in the thirty months spanning the outbreak of the
Bishops’ Wars and the conclusion of the Treaty of London, fines
totalling £901,815 were imposed on malignants in the first ten
months of 1646. That over a third (£332,111 13s. 4d.) remained
unpaid reflected discretion as well as default. Fourteen gentry,
including no more than four papists, were fined a total of £44,930
13s. 4d. in July 1647. Regardless of religious affiliations, those
appearing personally to answer charges of Royalist complicity weregiven up to two years to pay; even those facing peremptoryquartering were given discounts (in excess of 10%) if the bulk oftheir fines were paid within the year. 63 Catholic families had beennotably favoured in the rescinding of forfeitures which commencedin February 1647. Robert, second Earl of Nithsdale, who had not
been an active Royalist during the civil war, petitioned successfully
that he be restored to his late father’s estate on payment of a fine of10,000 merks (£6,666 13s. 4d.). His kinsman, John Herries, LordHerries of Terregles, was permitted to return from exile overseas onpayment of a fine of £10,000 coupled to a token promise to
subscribe the Covenants and give satisfaction to the Kirk. Twelvemonths later, he was accorded an annual allowance of £600 “inregaird of the notour distress and burden” arising from thesequestration of his rents and revenues since 1645 and his
continuing need to meet the public dues and private debtscontracted on his estates. 64
The general pardon conceded in March 1647 to all but theprincipal commanders involved in the Royalist cause during thecivil war preceded the reissue and amplification of the penallaws as a gesture of appeasement to the radical element withinthe Covenanting movement, apprehensive about aristocraticendeavours to assert a moderating brake and, more especially, toseek a rapport with the embattled Charles I. In effect, thepromulgation of the penal laws prepared the ground for the
Records of the Kirk of Scotland, 445-46, 448; APS, vi (i), 313-23, 552-53; TheGovernment of Scotland under the Covenanters, 15; SRO, PA14/3, fos.
APS, vi (i), 680-81, 682-83; Hull University Library, DDEV/79/F, Maxwell-Oonstable of Everingham MSS.
51
Engagement whereby Covenanting forces made a disastrousintervention to the second English Civil War, an interventionterminated by Oliver Cromwell at Preston in Augut 1648. Catholicsnot directly tainted by association with Montrose and MacCollaparticipated in the mobilization of troops and supplies, notably in
Nithsdale in the south-west; others made voluntary contributionsto the Engagement, Winton reputedly donating £12,000. 6S
The radical regime which came to power on the failure of the
Engagement issued a further classification of malignancy at the
outset of 1649 which was of little relevance to recusants, beingconcerned exclusively with removal of malignants from public
office from one year to life. While the continuing shortage ofpublic funds led to the issuing of local commissions to uplift
papists’ rents in the north-east, there was a general relaxation offorced quartering on Catholics to exact public dues. Four of the
five clan chiefs forfeited belatedly in 1649 for Royalist complicity
during the civil war were tainted with popery. Recusancy was not
specified in their indictments, however, their forfeitures being
motivated by their prolonged failure to make peace with the
Covenanting leadership. In like manner, the detailed indictment of
the second Marquis of Huntly, brought to trial in March 1649 after
fourteen months in captivity, made no mention of his recusancy.
Convicted and executed as a Royalist commander, he cannot be
deemed a martyr though he died an unrepentant Catholic. 66
Indeed, the radical regime promptly offered to restore his son and
heir provided Lewis Gordon gave satisfaction to the Kirk. Theson’s activities in attempting to foment a Royalist resurgence in the
north, rather than his avowed Catholicism, delayed his restoration
to his father’s titles and estates until March 1651, by which time
Scottish outrage at the execution of Chalres I had led to the
promotion of a patriotic accommodation of radicals, Engagers and
Royalists to resist Cromwell’s occupation and annexation of
Scotland. 67 Although radicals had remained adamant in their
negotiations with Charles II that no papists should be admitted to
public office, civil or military, Engagers and Royalists were
brought into the national government and given army commands
with the result that prominent Catholics, like the third Marquis of
65 APS, vi (i), 763, 765-66, 795; vi (ii), 30-39; Seton, A History of the Family of
Seton, 226.
“ APS, vi (i), 402-08; vi (ii), 137, 143-47, 265, 327, 356, 400, 460-62, 520. 544,
567, 580, 593, 665, 679; Gordon, A Short Abridgement of Britane's
Distemper, 223-26; Seton, A History of the Family of Seton, 231; Blair,
Account of the Surname of Baird, 73.
67 Records of the Commission of the General Assemblies of the Church of
Scotland holden in Edinburgh in 1648 and 1649, edd. A. F. Mitchell and J.
Huntly in the north-east, were given generous rebates from
taxation in return for expending their territorial influence in
mobilizing troops and supplies, albeit to no avail with the defeat of
the Scottish forces at Worcester in September 1651. 68
The threat of wholescale forfeiture and intensified fining
accompanying the Cromwellian occupation served as an
inducement for Lowland nobles and gentry to accord active
support to the clans engaged in guerilla resistance in the Highlands
from 1651, resistance which culminated in the Royalist rising led by
William Cunningham, ninth Earl of Glencairn, from the summerof 1651. Asa deterrent to the rebels, an Ordinance of Pardon andGrace to the People of Scotland, issued in April 1654, rescinded
fines imposed since 1651, but excepted leading Engagers as also
nobles and gentry who had connived in the Royalist resurgence bycountenancing the mobilization of family and tenantry though not
actually joining the rising themselves. No papists were among the
24 forfeited for their activities as Engagers, and only four out ofthe 73 nobles and gentry, fined sums ranging from £500 to £15,000sterling (£6,000 to £180,000), were avowed recusants, their fines
being at the lower end of the scale. The public outcry whichaccompanied such swingeing fines — though punishments were onaverage no greater than the fines imposed by the Covenantingmovement — was compounded by continuing high levels oftaxation and subsequently aggravated by the favourable termssecured from the autumn of 1654 by Royalist leaders who wereobliged to find sureties ranging from £1,000 to £6,000 sterling
(£12,000 to £72,000) to guarantee their future good conduct. Themost favourable terms were secured by a Catholic chief, AngusMacDonald of Glengarry, the last Royalist leader to make peace,who eventually received an indemnity for past rebellious conductextending back to the Scottish civil war. As a mark of appeasementto those exempted from the Pardon and Grace, fines weredrastically but realistically reduced in March 1655, from a third to ahalf and the times for repayment extended by two years. Catholicswere not specially discriminated against, though recusancy as wellas the degree of political activism as an Engager or Royalist waspurportedly a factor in apportioning the scale of individualreductions. 69
As a further mark of appeasement, following on from thedissolution of the general assembly, the implementation of therotectorate and the establishment of an incorporating union, the
Cromwellian regime imposed the penal laws in 1656, albeit on6ft
69
RPC, 2nd ser., viii, 210; The Government of Scotland under the Covenanters ,
158-59, 165, 168-72.
VL
(1,) ' 817 '20’ 845-46; Scotland under the Protectorate
, ed. C. H. Firth“urgh, 1899), 165-66, 234-37, 269-88; F. D. Dow, Cromwellian
English terms as reflected in the oath to be taken by suspect papistsabjuring loyalty to a foreign power. The primary purpose of this
exercise was to exclude Catholics from public office and anyonetainted with popery from being elected to, or voting for a memberof, parliament. 70 There was no other systematic application of civil
sanctions against recusants and their resetters throughout the nineyears of the Cromwellian occupation. Reports of increasedprosecution from the outset of the 1650s had largely beenmanufactured by secular clergy intent on gaining the support of the
papacy for one of their number to be appointed a bishop, with full
canonical authority, to serve as ecclesiastical co-ordinator of the
Scottish Mission. 71 The threat of execution was never carried outagainst priests apprehended incidentally during the general
surveillance the Cromwellian regime maintained on the domains ofnoted Royalists. So long as prominent papists did not seek to
maintain correspondence with or provide intelligence for the exiled
Charles II, or build up arms and ammunition in anticipation of a
Royalist resurgence, a receding prospect from 1656, the regime wasprepared to accord a measure of toleration to Catholics despite
official pronouncements deploring the increase of popery. 72
The promulgation of the penal laws in 1661 as part of the
Restoration settlement served principally to assuage public fears
that prominent Catholics in Charles II’s court in exile would return
to exercise a decisive influence on public affairs.73 That the penal
laws should be implemented on another four occasions during the
Restoration era, not only reflected the continuing need to allay
public fears about the covert Catholicism of Charles II, but also
signposted that Scotland — despite the formal recovery of
independence from 1660 — was inexorably becoming an English
satellite. The proclamation of the penal laws in 1670, in the wake of
declarations of indulgence in both countries, made clear that
limited toleration in Scotland was only to be extended to Protestant
dissenters, not to papists as was the case in England. Conversely,
the proclamation of 1673, in the wake of the revocation of
indulgence in England and the imposition of a Test Act barring
papists and dissenters from holding public office, merely
emphasised that discriminatory practice against nonconformists
was henceforth standardised in both countries. The official
70 APS, vi (ii), 815, 827, 857-61, 870-71, 877, 885; Scotland under the
Protectorate, 329-30.71 Hay, The Blairs Papers, 254-55; "Protestation of Sir Alexander Irvine of
Drum against the Presbytery of Aberdeen’’, in Spalding Club Miscellany, iii,
205-07; Anson, Underground Catholocism, 56; Memoirs of Scottish Jesuits, i,
Anderson, IR, viii, 99-129.73 RPC, 3rd ser., i, pp. xxii-xxiv, 65-66, 89-90, 350; APS, viii, 26.
54
preference in Scotland not to relax but to consolidate civil sanctions
against recusants should not necessarily be attributed to greater
public disquiet north of the Border about the well-founded
rumours of Charles II’s rapprochement with Louis XIV of France.
The common monarchy’s furtherance of English mercantilist
aspirations had dragged Scotland into a third war with its leading
trading partner, the United Provinces (the first Dutch War having
been instigated by Cromwell, 1652-54, the second by Charles
himself, 1665-67) which, in turn, justified increased taxation for the
maintenance of a militia as well as regular forces. In short, the
promulgation of the penal laws diverted attention from mercantilist
damage to Scottish trade and masked the general repressive nature
of a Restortion regime sustained by a standing army under JohnMaitland, Duke of Lauderdale. 74
The most vacuous following of English precedent occurred in
1679, when the penal laws were again proclaimed in response to the
ravings of the Popish Plot in England designed to exclude the
accession of the king’s Catholic brother, James, Duke of York.
The Scottish legislation, aimed primarily at the disarmament of
papists, was divested of its credibility by official backing for the
territorial acquisitiveness of Archibald Campbell, ninth Earl ofArgyll. As heritable justiciar of Argyll and the Western Isles, this
protege of Lauderdale secured a decision in his own favour in his
own court ordering the expropriation of Sir John Maclean of Duartfor accumulated private debts and arrears of public dues in excessof £200,000. Initial efforts to evict the Macleans from their
ancestral lands in Tiree, Mull and Morvern had been repulsed in
1674 with the aid of Lochaber clans traditionally hostile to thehouse of Argyll. However, the ninth earl received sufficient
backing from government forces to carry out his partial policy ofexpropriation in 1679 upon claiming that the resistance of theMacleans was a Scottish extension of the Popish Plot: a claimwhose only foundation was that two of the Lochaber clansopposing expropriation — the MacDonalds of Glengarry and theMacDonalds of Keppoch — were avowedly Catholic. 75
The despatch of James, Duke of York to Scotland, in effect toserve as provincial governor out of harm’s way during theExclusion Crisis, led to the rather incongruous and half-heartedpromulgation of the penal laws in the parliament of 1681. Theprimary purpose of this parliament was to secure the passage of aScottish Test Act, not so much to exclude papists and dissenterstrom public office, as to facilitate the accession of James by
RpC, 3rd ser., iii, 119-23; iv, 117-21, 124-25; Ferguson, Scotland’s Relationswith England, 150-58.
fJC, 3rd ser., vi, 58-59, 62-63, 70-71, 101-04, 170-73, 203-05; A. I. Macinnes,Kepression and Conciliation: The Highland Dimension, 1660-1688”, SHR ,
Ixv (1986), 167-195.
55
requiring all members of the political establishment north of theBorder to subscribe an oath upholding the hereditary succession ofthe royal house of Stewart despite the anomalous consequence that
a professed Catholic, in his capacity as monarch, would becomesupreme governor of the Kirk. 76
Albeit Catholic clergy continued to be hounded by the Kirk,
under episcopal direction, the prosecution of recusants and their
resetters was not a remarkable feature of the Restoration era. Therescinding of forfeitures imposed by the Covenanting movement onprominent Royalists, including papists, was indicative of a morerelaxed attitude towards recusancy from 1661. 77 The mostrigorously enforced aspects of the penal laws were, firstly, the
requirements that Catholic children regardless of their parents’
social standing receive a Protestant education and, secondly, the
exclusion of recusants from public office, civil and military.
Neither aspect was applied absolutely. Although the enrolment of
students in the Scots colleges decreased slightly to less than six a
year in the Restoration era from under seven a year during the
Covenanting movement and the Cromwellian occupation, com-
pared with over eight a year from the union of the crowns to the
termination of the personal rule of Charles I, recruitment from
landed families, which actually doubled between 1638 and 1660,
increased by a further 7% prior to the accession of James VII. 78 At
least two councillors whose families harboured papists featured on
the original privy council appointed by Charles II in July 1661 . Yet,
the only professed papist appointed to the council was a courtier,
Charles Gordon, Earl of Aboyne in February 1676, whose five-year
service was largely nominal. More significantly, nine of the thirteen
Catholic nobles attended at least one of the eleven sessions of
parliament (or convention of estates) between 1661 and 1681 . Most
attended from four to six sessions, with Nithsdale managing seven
and Aboyne eight. The only parliament from which Catholics were
absent was that of 1673, an expedient manoeuvre given the
promulgation of the penal laws at the outset of that year in order to
effect a purge of the Scottish establishment. In the event, two
7 * RPC, 3rd ser., iii, 32-33, 441, 451, 633-34; iv, 122-24, 184-85, 305-07, 383-84,
629; v, 449, 495-96; Memoirs of Scottish Catholics, ii, 393-97; Records of the
Scots Colleges, 8-57, 102-21, 195-99.
56
officers were removed from the regular forces and Catholics
continued to be denied commissions in the militia.79
In general, much to the chagrin of the Kirk, excommunication
was rarely followed up by civil sanctions. Merely a handful of
recusants, none landed, were exiled. Around 100 recusants within
the bounds of the synod of Moray were liable for fines during 1672,
though the council remained unconvinced that the money recouped
would justify the expense of administrative proceedings.
Conversely, Archibald MacDonald, the bastard brother of Sir
James MacDonald of Sleat, was found not only to have resisted all
efforts to secure his conversion to Protestantism, but to have
conducted an armed nightime assault on Donald Nicholson,
minister of Kilmuir in Trotternish, Isle of Skye. The council took
no action beyond recording, in August 1667, the minister’s grateful
delivery, as Archibald “would no question have murthered himhad not the good hand of God restrained his wicked resolution”.
More flagrantly, the belligerent brother of the laird of Drum,Francis Irvine, having recruited a contingent of Highlanders fromCromar to ensure the compliance of the local magistrates, had his
sister Elizabeth buried publicly — albeit late at night — in St
Nicholas Church, Aberdeen, according to Catholic rites. AlthoughFrancis Irving was subsequently imprisoned, bound over to findsurety of 10,000 merks (£6,666 13s. 4d.), obliged to pay the expenseof bringing prosecution witnesses to Edinburgh and banishedpermanently from approaching within a mile of Aberdeen fromAugust 1670, the council rescinded his sentence within twelvemonths. 80
Discriminatory application of the penal laws was manifest notonly within the Catholic community but, more especially, inrelation to the council’s treatment of other nonconforming groups,for, in order to maintain the impression of even handedness, thepromulgation of the penal laws was supplemented by injunctionsrequiring conformity from Quakers and conventiclers. 81 Despitetheir avowed passivity, the Quakers, as members of a non-
f£C>j3rd ser - J -2; iii, 475; iv, 122-24, 545; APS
,
vii, 3-4, 368-69, 446-47,526-27 536-37, 548-49; viii, 3-4, 55, 208, 213-14, 231-32. A third officer wasactually imprisoned prior to the promulgation of 1673 on suspicion ofcorresponding with priests. The Council ultimately decided that CaptainWilliam Hardie was the victim of malicious reports manufactured by his wife.However, his imprisonment, by occasioning him to incur debts and endure theconfiscation of his house and goods, served as an exemplary warning for thePunitive impact of the penal laws (RPC, 3rd ser., iii, 508).he Register of the Synod of Galloway, 36, 45-46, 65-67, 79-80, 105, 174-75-
Ahr !tT ZeC°rdS °f >he Kirk Session’ Presbytery and Synod of
•. ii, 135-36, 306, 312, 631; iii, 91, 480-82; v, 206-09; vi, 152-53.
57
indigenous sect based mainly in the towns — having takenadvantage of the toleration afforded by the Cromwellianoccupation to propagate and consolidate in Scotland — regularly
had their meetings interrupted and dispersed by magistrates.
Quakers were fined systematically and sentenced to prolongedspells of imprisonment, sometimes in locations admittedunwholesome by the council. 82 An altogether more serious problemfor the Restoration regime was posed by the conventiclers, the
militant vanguard of the presbyterian dissenters who continued to
uphold the Covenanting ideals abrogated by the re-establishment
of episcopacy. Regularly persecuted by fining, eviction andbanishment to the Americas as well as the continent, conventiclers
were driven to rebellion in 1666 and 1679. In the interim,
conventiclers were disciplined but not deterred by corporal andcapital punishment. Around 100 were executed, most summarily,
between 1678 and 1688. Presbyterians alienated by the armedposturings of the conventiclers were nonetheless subjected to
swingeing fines and random quartering of troops. 83 Indeed, the
widespread practice of non-church going among presbyterian
dissidents was exploited by Catholics to circumvent pressure,
notably intensified after 1679, to partake of communion as a
Protestant sacrament. Furthermore, following the application of
the Test Act to all members of the landed classes betwen 1681 and
1685, no punitive action was taken against recusants who failed to
comply, other than to note their names as “disorderly persons”. 84
The reimposition of the penal laws in 1689 cemented the
deposition of James VII. Yet, no sustained or indiscriminate
reprisals were exacted against recusants between the Revolution
and the union save exclusion from public office (including
membership of the Scottish estates).85 During these 18 years of
Whig dominance (under William of Orange until 1702 and Anne
thereafter), educational requirements that Catholic parents hand
over their children into the custody of their nearest Protestant
relations, while continuing to pay for their maintenance, were not
always enforced or upheld. 88 Although the Whig regime was never
averse to polemical discourses exhorting the intrinsic merits of
Ibid., i, 339, 369-70, 387, 616, 626; ii, 36, 105, 432-33, 457; iii, 153, 155, 162,
441-42, 605, 615; iv, 33, 35, 75-77; v, 20, 148, 159, 436, 477-78; vii, 486-87; J.
Torrance, “The Quaker Movement in Scotland”, RSCHS, iii (1929), 31-42.
* 3I. B. Cowan, The Scottish Covenanters, 1660-88 (London, 1976), 55, 62-63,
88 SRO, CH1/2/5/2, fos. 149-75; and CH1/2/5/3, fos. 176-205, Church Papers;
Maitland Club Miscellany, iii, 387-440; Records of the Scots Colleges, 57-66,
121-26, 199, 265.
58
Protestantism over popery, the prevailing ethos with respect to the
operation of the penal laws was to punish Catholics in so far as they
could be deemed enemies of the civil constitution established by the
Revolution settlement, that is, as Jacobites not recusants.
Landowners who apostacized during the reign of James VII were
not penalized by forfeiture of their estates or sequestration of their
rents and revenues. Moreover, long-established Catholic families
continued to enjoy the protection of law to maintain their landed
interests against relatives hoping to exploit their recusancy.
Conversely, partial decisions in favour of recusant relatives secured
under James VII were set aside if the heir to an estate became a
Protestant. 87
In the aftermath of the Revolution, clear distinction must be
drawn not only between the treatment meted out to priests, on the
one hand, and to their lay adherents, on the other hand, but also
between the treatment accorded to recusants, openly identified with
Jacobitism, and to those prepared “to live peaceably and with all
submission to the present government”. At the outset of 1690, the
special mistrust of priests as agents of a foreign power andpotential couriers for the Jacobite court in exile was reflected in the
proposed exchange of five secular clergy for a party of Caithnessgentry captured by a French privateer while journeying to
Edinburgh. Priests continued to be hounded incessantly andsubjected to debilitating periods of imprisonment prior to
banishment. 88 The only person tortured physically by the Whigregime was Henry Neville Payne, not for his religious sympathies asa trafficking English papist, but rather for his role as a Jacobiteagent implicated in the ubiquitous plotting of 1690 against thegovernment of William of Orange. Payne was detained for tenyears without trial after his capture in Annandale in the summer of1690 and subjected to periodic torture and solitary confinement asmuch to extract confessions embarrassing to opponents ofsuccessive ministries within the Whig regime as to reveal Jacobite
APS, ix, 430; xi, appendix, 138; RPC, 3rd ser., xv, 99-100, 135-36, 187-90,474, xvi, 20-21, 320. Thus, Alexander Irvine of Drum, after exhaustive andoften lurid inquiries by the Council into his mental stability and his physicalcapacity to consummate his relationship with the forceful Marjory Forbes, wasrestored to his house and estates in Aberdeenshire in March 1691, 22 monthsa ter recusant relatives had taken over the management of his affairs on thegrounds of his “furiosity”, as attested by his conversion to Protestantism andhis irregular marriage in June 1688 {Ibid., xiii, pp. xxiii, 21, 241, 262-63,272-74, 517, 527-28; xiv, 37, 157-59, 161-62, 181-82; xv, 67-69, 169-73).uworth, IR, xx, 75-77; Memoirs of Scottish Catholics, ii, 398-403; RPC, 3rd
’ 298 ’ 32 1: Hay’ Geneal°Rie °f the Hayes of Tweeddale,
59
subversion. 89 In addition to illegal detention, the incoming Whigregime was prepared to countenance occasional atrocities in
venting their frustration at Jacobite clans continuing in arms for upto two years after the accomplishment of the Revolution. TheCatholicism of the Clanranald population as well as the relative
isolation of Eigg was undoubtedly a contributory factor
influencing the ravaging of the island at the direction of the Ulsternaval commander, Edward Pottinger, in May 1690. But, thesupposed Catholicism of the MacDonalds of Glencoe was merelyan unfounded excuse for their massacre in February 1692, stage-
managed by the then secretary of state for Scotland, Sir JamesDalrymple, Master of Stair.
90
John Drummond, fourth Earl of Perth, the most prominentofficial in the outgoing government of James VII, whose apostacyas lord chancellor in 1685 had helped trigger anti-popish rioting in
Edinburgh, was captured in Fife attempting to escape to France at
the Revolution and subsequently detained in Stirling castle for four
years prior to his banishment overseas. His fate was exceptional
among landed Catholics. The mere handful of recusants banished
between 1689 and 1707 were otherwise non-landed. Catholic gentry
suspected of Jacobite sympathies were imprisoned at the
Revolution, but those prepared to foreswear Jacobitism were
released, having been bound over for 5,000 merks (£3,333 6s. 8d.)
to live peaceably under the Whig regime and made cognisant of
fines five times their rental value in the event of their implication in
Jacobite plotting. These fines were rarely, if ever, imposed, albeit
some were subsequently imprisoned for short spells as suspected
Jacobites. Although all Catholics were excluded from parliament,
that no more than five should be cited among the 27 nobles fined
£1,200 individually for absenteeism in 1693 reflects the number of
leading recusants prepared to identify openly with the Jacobite
parliamentary boycott in the wake of the Revolution Settlement.91
The penal laws were again promulgated at the outset of 1697 in
response to the attempted assassination on William of Orange the
previous year. No reprisals were implemented systematically
against recusants or their resetters. George Gordon, first Duke of
Gordon (and fourth Marquis of Huntly), as a former leading
official under James VII and a potential focus for Jacobite
disaffection, had been forbidden to return to his estates in the
north-east after the Revolution. Yet, he was released without being
fined after no more than a fortnight’s imprisonment in 1699, when
he was apprehended in the company of another 40 Catholics from
Edinburgh during a mass at his town-house in North Leith. 92
The reissue and amplification of the penal laws in 1700 was not
the culmination of religious prosecution in the late 1690s fuelled by
the social pressures engendered by endemic famine compounded in
the Highlands by military occupation. The contention that the
resultant persecution of Catholics “was the worst yet known” in
the Highlands has validity only with respect to the virtual absence
of persecution hitherto. 93 Despite the copying of English punitive
measures requiring popish heirs to renounce Catholicism within ten
years of their entry to their estates or face the permanent exclusion
of themselves and their heirs, and the further injunction that
Protestant landowners who apostatized were automatically
forfeited, these sanctions remained as inoperative in the Highlandsas in the Lowlands. Certainly, the reward of 500 merks (£333 6s.
8d.) for every priest apprehended did encourage bounty-hunting,particularly in the Highlands where occupying forces were affordeda remunerative diversion to their watch on cattle-lifting andsurveillance of Jacobites. 94 But, given the overwhelming preferenceof the pre-Revolution clergy in the Highlands to remainepiscopalians outside the established Kirk where they continued toreceive the backing of the Jacobite clans, there were insufficient
Presbyterian ministers in the Highlands to convert the diversionarybounty-hunting of priests into the systematic pursuit of recusantsand their resetters. 95 The primary purpose of promulgating thepenal laws in 1700 was to enforce the disarmament of professedand suspected papists because of their close identification with theJacobite cause which was currently deriving considerable politicalcapital from the Darien fiasco, induced principally by William ofOrange’s palpable failure to support Scotland’s colonial venture tocentral America. 96
In like manner, the promulgation of the penal laws at the
150-51, Church Papers; Hopkins, Glencoe and the End of the Highland War
,
466.
Memoirs of Scottish Catholics, ii, 174-193; Hopkins, Glencoe and the End ofthe Highland War, 465, 493.APS, x 212, 215-18; Memoirs of Scottish Catholics, ii, 402-03; Maitland ClubMiscellany, iii, 424-29.
???.’ k.HI
.
/2/5/3, fos ' I80’ I89
> Church Papers; Ferguson, RSCHS, xvii,15-31; Maclean, RSCHS, v, 251-61.erguson, Scotland's Relations with England, 176-79; P. W. J. Riley, Kinglliam and the Scottish Politicians (Edinburgh, 1979), 132-37.
61
outset of Anne’s reign in 1702, and their subsequent proclamationin 1704 and 1705, was not designed to institute the systematicpersecution of recusants and their resetters but to disarm actual andpotential supporters for the Jacobite cause, a cause intent onexploiting public antipathy to the negotiations for union withEngland and Scotland’s consequent loss of national sovereignty. 97
Incidentally, of the three Catholics who publicly renounced poperyfrom 1703 in order to participate in the crucial parliamentarydiscussions, only Francis Sempill, Lord Sempill of Glassford,consistently voted against the Scottish Estates accepting the Treatyof Union. John Meldrum of Urquhart, as commissioner for the
royal burgh of Dornoch, voted in favour as did George Ogilvy,
Lord Banff, who held out for the inducement of £11 2s. sterling
(£133 4s.) to make the journey to Edinburgh in 1706 to support the
Whig ministry. 98
The proclamation of the penal laws in 1704 and 1705 did meetwith a seemingly unique response, however: notably, the detailed
submission of lists to the council from presbyteries, shires andburghs of all professed and suspected papists, a chore hitherto
neglected throughout the seventeenth century. Far from attesting
that Catholic families were in a sustained state of siege or cowed by
persistent persecution, the lists reveal three pronounced facets
which summed up the limited impact of the penal laws, not just
with respect to the current pursuit of disarmament but to their
actual operation between 1603 and 1707. 99
Firstly, the disciplining as well as the disarming of clans was
fraught with difficulties for local government officers, even
allowing for military assistance. As George Keith, sheriff-depute
for Aberdeen reported in March 1705, “no doubt the Highland
Countrey is weel armed. But none has made an offer of delivery,
and it is simply impossible to us to oblige them without military
forces and albeit we should go to ther Countrey thay may easily
abscond” to more remote locations. Secondly, discretion was
exercised locally to mitigate personal inconvenience arising from
the impounding of arms, regardless of calibre or state of repair,
and of all horses valued above £8 sterling (£96). In addition to his
walking sword, Gilbert Menzies of Pitfoddells was allowed to
retain a substantial horse above the statutory value to bear his
Miscellany, 392-96; P. W. J. Riley, The Union of England and Scotland
(Manchester, 1978), 282-87.9,1 APS, xi, 40, 48, 305, 313-15, 404-08. The first prominent Catholic to renounce
popery to participate in parliamentary affairs after the Revolution was Charles
Gordon, second Earl of Aboyne, in 1698, who died prior to the
commencement of negotiations for Union in 1702 (Ibid., x, 126).
99 SRO, CHI/2/5/2, fos. 149-75; CH1/2/5/3, fos. 176-205, Church Papers;
Maitland Club Miscellany, iii, 396-440.
62
weight, “in so far as it is notoriously knowen that he is of such a
great and heavy bulk of body that he is hardly able to goe a mile onfoot about his necessarie affaires” in Kincardineshire. Thirdly,
such was the burgeoning confidence among landed recusants that,
in the stewartry of Kirkcudbright, discrimination was practised
with impunity in the selection and retention of tenantry on religious
grounds. Fifteen Catholic families resided upon the estate of JamesMaxwell of Kirkconnell in the parish of Troqueer. Many werereputedly willing to turn from popery “if they were not hindered bytheir master, so fearing their ejection from their houses by him if
they should turne, they continue popish”. 100
As manifest by their reissue and amplification on 21 occasions,
the penal laws against recusancy were more honoured by their
breach than in their observance between 1603 and 1707. Politics,
not persecution, was the primary motive for their promulgation.
SRO, CHl/2/5/2, fos. 161; CH1/2/5/3, fos. 181, 195, Church Papers.
