Popery Act 1704[n 1]
Parliament of Ireland
Long titleAn Act to prevent the further Growth of Popery
Citation2 Anne c.6 [Ir.]
Dates
Royal assent4 March 1704[1]
Repealed13 August 1878
Other legislation
Amended byRoman Catholic Relief Act 1793, Roman Catholic Relief Act 1829
Repealed byPromissory Oaths Act 1871, Statute Law Revision (Ireland) Act 1878
Status: Repealed
Text of statute as originally enacted

An Act to prevent the further Growth of Popery (2 Anne, c.6; commonly known as the Popery Act or the Gavelkind Act)[2] was an Act of the Parliament of Ireland that was passed in 1704 designed to suppress Roman Catholicism in Ireland ("Popery"). William Edward Hartpole Lecky called it the most notorious of the Irish Penal Laws.[3]

Inheritance in traditional Irish law used gavelkind, whereby an estate was divided equally among a dead man's sons. In contrast, English common law used male primogeniture, with the eldest son receiving the entire estate. The 1704 act enforced gavelkind for Catholics and primogeniture for Protestants.

Enactment

Two separate bills "to prevent the further Growth of Popery" were introduced in the parliamentary session 1703–1704. One originated with the Irish Privy Council and was referred on 4 July 1703 to the Attorney-General for Ireland;[1] the other was introduced as heads of a bill in the Irish House of Commons on 28 September 1703 and sent to the Lord Lieutenant on 19 November.[4] Under Poynings' Law, both bills were transmitted to the English Privy Council for approval.[1] Formally, one bill was vetoed and the other was returned to Dublin with amendments; a lack of surviving documentation makes it impossible to determine which of the two had which fate.[1] The approved bill was engrossed on 20 January, presented in the Commons on 14 February, sent to the Irish House of Lords on 25 February, and given royal assent on 4 March.[1]

Sir Toby Butler, the former Solicitor General for Ireland, a Roman Catholic, made a celebrated speech at the bar of the Commons denouncing the act as being "against the laws of God and man... against the rules of reason and justice". Other eminent Catholic lawyers like Stephen Rice also denounced the measure but to no avail.

Provisions

Effect

Charles Ivar McGrath says that while the Popery Act had "evident ... negative effects", specific research is lacking,[9] and that it was intended more to prevent an increase in Catholic landholding than encourage further decrease:[9] the Catholic share of land had already fallen from 60% before the 1641 Rebellion to 22% before the Williamite War to 14% in 1704.[10] The figure of 5% in 1776 given in Arthur Young's Tour in Ireland is probably an underestimate,[9] although in 1778 only 1.5% of rent was paid to Catholics.[10]

Catholic gavelkind cemented a tradition of farm subdivision,[10] which persisted beyond the act's repeal and contributed to the Great Famine of the 1840s.

Lord Redesdale, the Lord Chancellor of Ireland, remarked in an 1805 case, based on a disputed inheritance of an estate originally purchased before and after 1704 by a Catholic:[11]

The purpose of [2 Anne c. 6] was to disable papists from purchasing lands in future; and to make all lands of which any papist was or should be seised in fee or in tail, of the nature of gavelkind, and, if not sold in his life-time for money, really and bonâ fide paid, to descend accordingly, notwithstanding any other disposition, but subject to debts and provision for daughters: and in case of conformity of the eldest son, the act reduced the father to the condition of tenant for life, and gave the inheritance to the conforming son, subject to provisions for younger children. The second act [8 Anne, c. 3] is of a different kind. It was conceived that the first act was evaded in consequence of those who had a right to avail themselves of it not doing so. The second act, therefore, gives a right to any protestant to avail himself of the former act for his own benefit, and to file a bill for a discovery of all trusts or purchases made by, or on behalf of papists, contrary to the provisions of the former act, and to take the benefit of the same, as if made to or for such protestant discoverer. The result was, that although the first act made a purchase by a papist void, the second act made the purchase valid for the benefit of a protestant discoverer; and thus, that which was void as between the parties, was good for the benefit of a third person.
These acts had so embarrassed all the titles in the country, that if no other motive had occurred, it would have been a measure of policy to relax their severity: for no law is sufficient to restrain the desire of possessing landed property, and to evade these restrictive laws, contrivances were used, which perplexed almost every title, and made every protestant insecure in the possession of lands derived through a papist.

In 1866, Chancery Commissioners reported that the Law of Judgments was much more complicated in Ireland than in England, and traced the difference back to the steps introduced in Ireland to enforce the 1704 act and ensure property was not being secretly transferred from Protestants to Catholics.[12]

Amendment and repeal

The act was "explained and amended" by a 1709 act which specified certain time limits left ambiguous by the original act, and closed some loopholes used by Catholics to remain beneficial owners of nominally Protestant property.[13]

A 1719 act[14] indemnified officials who had not thitherto subscribed to the oath required by the Popery Act. The time period for Dissenters subscribing to the oath was routinely extended, initially by an Indemnity Act at the start of each biennial parliamentary session.[15] Similar acts were passed by the British parliament, and after the union the UK parliament continued the practice.[16]

From the late 18th century Roman Catholic relief bills eased the Penal Laws, by explicit or implicit repeal and replacement. In 1772 Catholics were allowed to lease up to 50 Irish acres of bog-land for up to 61 years.[17] The 1704 oath of allegiance for Catholics was replaced in 1774.[18] Gardiner's Act[19] (the Irish re-enactment of the British Papists Act 1778) implicitly repealed many other provisions of the 1704 act. Some were replaced with less onerous restrictions; for example, the maximum lease for Catholic tenants was increased from 31 years to 999 years.[20] The restrictions on inheritance and preference for a convert eldest son were abolished.[21] The sacramental test was repealed for Dissenters in 1780.[n 2][24] The Roman Catholic Relief Act 1782 repealed section 23 of the 1704 act.[25] Another act of 1782 allowed lay Catholics to be guardians of Protestants.[26] Most restrictions on intermarriage were removed by the Roman Catholic Relief Act 1792.[27] Many Penal Laws were repealed in general terms by the Roman Catholic Relief Act 1793;[28] the sacramental test for Catholics was effectively replaced by the 1774 oath.[29][n 3]

The Roman Catholic Relief Act 1829[30] abolished the declaration against transubstantiation[31] specified a new public oath for Catholics,[32][33] explicitly permitted Catholics to hold Irish civil or military offices other than Lord Lieutenant and Lord Chancellor,[33] with the same oaths as required of non-Catholics (in addition to the new Catholic oath).[34]

The Criminal Law Commission's 1845 report on oaths said sections 1, 3, and 6 of the 1704 act had fallen into disuse and should be repealed.[35] The Religious Disabilities Act 1846, passed in consequence of the committee's report, explicitly repealed provisions of sections 1, 3, and 4 of the 1704 act.[36]

The Popery Act was explicitly repealed as obsolete by the Promissory Oaths Act 1871, with the exception of section 25,[37] which was made redundant by the coming into force in 1871 of the Irish Church Act 1869, and was repealed by the Statute Law Revision (Ireland) Act 1878.[38]

Notes

  1. ^ Or Popery Act 1703. No short title was assigned to the act before its repeal. Where a parliamentary session ran across more than one calendar year, an act's informal name sometimes uses the year in which it was granted royal assent, sometimes the year in which the parliamentary session began — in this case, Popery Act 1704 and Popery Act 1703 respectively.
  2. ^ The 1780 act referred to "Protestants". A 1793 act[22] clarified that the 1780 act only applied to Dissenters, not members of the established Church of Ireland. An 1832 act repealed the 1793 act and extended the 1780 act to all Protestants.[23]
  3. ^ In consequence, the Sacramental Test Act 1828 did not extend to Ireland.

Sources

References

  1. ^ a b c d e "Bill Number 5355: To prevent the further growth of Popery". Irish Legislation Database. Queens University Belfast. Retrieved 8 February 2023.
  2. ^ a b Andrew Lyall; Land Law in Ireland; ISBN 1-85800-199-4
  3. ^ Simms 1960 p. 105
  4. ^ "Bill 2065 : To prevent the further growth of Popery in this kingdom". Irish Legislation Database. Queens University Belfast. Retrieved 8 February 2023.
  5. ^ 9 Will 3 c.3 [Ir.]
  6. ^ 1 Anne c. 16 [Eng.]
  7. ^ The Annals of Derry, Robert Simpson 1847, page 203
  8. ^ Corish, Patrick J. (1982). "[Review of] The convert rolls. Edited by Eileen O'Bryne. Pp xvii, 308. Dublin: Stationery Office, for the Irish Manuscripts Commission. 1981. £Ir.25". Irish Historical Studies. 23 (90): 190–191. doi:10.1017/S0021121400017594. ISSN 0021-1214. JSTOR 20547499.
  9. ^ a b c McGrath 2021 p. 45
  10. ^ a b c Johnston-Liik, Edith Mary (2006). "Introduction". MPs in Dublin: Companion to History of the Irish Parliament, 1692–1800. Ulster Historical Foundation. p. 5. ISBN 978-1-903688-60-1.
  11. ^ Moore v. Butler, 2 Schoales and Lefroy, 259–260 (High Court of Chancery, Ireland 7 February 1805).
  12. ^ Hancock, W. Neilson (April–November 1874). "An Account of the Progress that has been made in describing the differences between the Laws in force in England and those in force in Ireland; with some of the leading points not already noticed, and Suggestions for the most convenient division of the subject". Journal of the Statistical and Social Inquiry Society of Ireland. Dublin: E. Ponsonby. 6 (46): 375.
  13. ^ 8 Anne c.3 [Ir.]
  14. ^ 6 Geo. 1 c. 9 [Ir.]
  15. ^ "Bills with subject of 411 'Protestant dissent'" Irish Legislation Database; Irish acts 1 George II c.2, 3 George II c.6, 5 George II c.5, 7 George II c.4, 13 George II c.7, 15 George II c.4, 17 George II c.9, 19 George II c.8, 21 George II c.5, 23 George II c.7, 25 George II c.7, 29 George II c.2, 31 George II c.4, 33 George II c.3, 1 George III c.4, 3 George III c.3, 5 George III c.11, 7 George III c.16, 11 George III c.3, 11 & 12 George III c.29, 13 & 14 George III c.13, 15 & 16 George III c.5, 16 George III c.1, 17 & 18 George III c.5, 19 & 20 George III c.28, 21 & 22 George III c.7, 25 George III c.32
  16. ^ "The Annual Indemnity Act". Abstract of the Corporation and Test Acts: More Particularly as to Such Parts of Them as Relate to the Imposition of the Sacramental Test : Also of Subsequent Acts and Clauses which Affect the Same, Including the Annual Indemnity Act. London: United Committee United Committee appointed to conduct the application of Protestant Dissenters for relief. 1828. pp. 13–15.
  17. ^ 11 & 12 Geo. 3 c. 21 s. 1
  18. ^ 13 & 14 Geo. 3 c. 35 [Ir.]
  19. ^ 17 & 18 Geo. 3 c.49 [Ir.]
  20. ^ 17 & 18 Geo. 3 c.49 [Ir.] s.1
  21. ^ 17 & 18 Geo. 3 c.49 [Ir.] ss.2, 5–7
  22. ^ 33 Geo. 3 c. 51 [Ir.]
  23. ^ 2 Will. 4 c. 7
  24. ^ 19 & 20 Geo. 3 c. 6 [Ir.]
  25. ^ 21 & 22 Geo. 3 c. 24 [Ir.] s. 5, s. 15
  26. ^ 21 & 22 Geo. 3 c. 62 [Ir.] s. 5
  27. ^ 32 Geo. 3 c. 21 [Ir.] ss. 10–13
  28. ^ 33 Geo. 3 c. 21 [Ir.]
  29. ^ 33 Geo. 3 c. 21 [Ir.] s. 7
  30. ^ 10 Geo. 4 c. 7
  31. ^ 10 Geo. 4 c. 7 s. 1
  32. ^ 10 Geo. 4 c. 7 ss. 2–5
  33. ^ a b 10 Geo. 4 c. 7 ss. 10, 12, 14, 22, 23
  34. ^ 10 Geo. 4 c. 7 s. 23
  35. ^ Her Majesty's Commissioners for Revising and Consolidating the Criminal Law (30 May 1845). First Report, on Penalties and Disabilities in Regard to Religious Opinions. Sessional papers. Vol. HC 1845 XIV (631) 1. London: HMSO. pp. 19–20, 23, 49. Retrieved 14 February 2023.
  36. ^ 9 & 10 Vict. c. 59 s. 1
  37. ^ 34 & 35 Vict. c. 48 Sch. 3 Pt. 2
  38. ^ Attorney-General for Ireland; Lowther, James (1 March 1878). "Statute Law Revision (Ireland) Bill". Sessional papers. HC 1878 vii ((122) 275): 24.

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