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Popery Act

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This article is about the Irish Act of Parliament. For the English Act of Parliament, seePopery Act 1698.

Popery Act 1704[n 1]
Act of Parliament
Parliament of Ireland
Long titleAn Act to prevent the further Growth of Popery
Citation2 Anne c. 6 (I)
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Repealed byPromissory Oaths Act 1871,Statute Law Revision (Ireland) Act 1878
Status: Repealed
Text of statute as originally enacted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 (I); commonly known as thePopery Actor theGavelkind Act)[2]was anActof theParliament of Irelandthat was passed in 1704 designed to suppressRoman Catholicism in Ireland( "Popery").William Edward Hartpole Leckycalled it the most notorious of theIrish Penal Laws.[3]

Inheritance intraditional Irish lawusedgavelkind,whereby an estate was divided equally among a dead man's sons. In contrast, Englishcommon lawusedmale primogeniture,with the eldest son receiving the entire estate. The 1704 act enforced gavelkind for Catholics and primogeniture for Protestants.

Enactment[edit]

Two separate bills "to prevent the further Growth of Popery" were introduced in theparliamentary session1703–1704. One originated with theIrish Privy Counciland was referred on 4 July 1703 to theAttorney-General for Ireland;[1]the other was introduced as heads of a bill in theIrish House of Commonson 28 September 1703 and sent to theLord Lieutenanton 19 November.[4]UnderPoynings' Law,both bills were transmitted to theEnglish Privy Councilfor 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 theIrish House of Lordson 25 February, and givenroyal assenton 4 March.[1]

SirToby Butler,the formerSolicitor 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 likeStephen Ricealso denounced the measure but to no avail.

Provisions[edit]

  • Section 1 defined aspraemunirethe encouragement or act ofapostasyfrom Protestantism to Catholicism. It also prohibited Catholics under 21 from going abroad without licence, to help enforce theEducation Act 1695's prohibition on Catholic education overseas.
  • Section 2 empowered judges to summon children to court to prove they had not gone abroad without licence under section 1.
  • Section 3 empowered theIrish Chanceryto take property from a Catholic parent to pay for their Protestant child's education. If the child was an eldest son, up to one-third of the parent's property could be transferred to him, the parent retained only alife interest.
  • Section 4 prohibited Catholics from beinglegal guardiansof Protestant children
  • Section 5 extended the existing prohibition on Protestants marrying Catholics[5]to include marriages abroad.
  • Section 6 prohibited Catholics from buying land or leasing it for more than 31 years.
  • Section 7 gave a Catholic acquiringtitletoreal propertysix months in which to enter intopossessionof it, failing which it descended to the nearest Protestant relative.
  • Section 8 was a proviso to section 7, whereby a nearer Catholic relative could pre-empt the Protestant relative by conforming to Protestantism within the six-month window
  • Section 9 was a proviso to section 7, whereby the Protestant wife of a dispossessed Catholic remained entitled to her one-thirddower.
  • Section 10 mandated that inheritance from a Catholic would be bygavelkind,that is divided equally between all sons. If the deceased had no sons, the estate was likewise divided between his daughters, or the next closest kin.
  • Section 11 was a proviso to section 10 to allow provision for daughters from the estate before the residue was subdivided among the sons.
  • Section 12 was a proviso to section 10 to allow the eldest son to inherit the whole estate (by primogeniture) if he was a Protestant, or converted within three months of his father's death. Thus, the law had the effect of reducing the size and thus the influence of Roman Catholic landed estates, which was the act's ulterior motive.[2]
  • Section 13 mandated that inheritance from a Protestant would according to common law, that is primogeniture.
  • Section 14 provided that debts of Catholics be registered with theCourt of Exchequer,to ensure they were paid out of the estate before the application of gavelkind
  • Section 15 required a putative Protestant to prove their religion by taking specifiedoaths of supremacy, abjuration and allegiance
  • Section 16 required that, by August 1704, any person with an existing civil or military office must subscribe atquarter sessionsto the declarations specified by the EnglishSecurity of the Succession, etc. Act 1702[6]which rejectedtransubstantiation,abjured the Papacy and theJacobite succession,and gave allegiance toQueen Anne.They must also "receive thesacrament of the Lord's Supperaccording to the usage of theChurch of Ireland".As well as excluding Roman Catholics from office, the" sacramental test "excluded ProtestantDissenters,notablyPresbyterians,and many had to step down from municipal corporations and other positions. For example, ten Aldermen and ten Burgesses had to resign fromLondonderry Corporation.[7]
  • Section 17 required that, within three months of appointment, any person appointed to a civil or military office must take the same oath and sacrament as in section 16.
  • Section 18 provided that failure to comply with sections 16 or 17 would vacate the office and void acts done by the official, who would be fined £500 and subject to civil penalties.
  • Section 19 provided for rolls of those subscribing to the oaths under section 15 to 17 be kept at theFour Courts.The surviving "convert roll" details are a valuableprimary sourcefor historians of 18th-century Ireland.[8]
  • Section 20 empowered the Four Courts to administer the prescribed oaths
  • Section 21 allowed someone disabled under section 18 to be rehabilitated by subsequent conformity.
  • Section 22 allowed Irish people in England to take the equivalent oath and sacrament under the equivalent English laws (theTest Acts) and allowed those abroad elsewhere to do so when next in Ireland or England
  • Section 23 prohibited Catholics from moving toGalwayorLimerick,and required those already living there to deposit bonds with the corporations as proof of their loyalty.
  • Section 24 required Catholics voting in elections for the Irish House of Commons to take oaths of allegiance and abjuration
  • Section 25 provided that anyadvowsonsof the Church of Ireland owned by Catholics would vest inthe Crown
  • Section 26 declared that "superstitious" gatherings atSaint Patrick's Purgatoryorholy wellswere punishable asunlawful assembly
  • Section 27 declared that, for an assembly under section 26, the punishment for attending was afineof 10shillings,or publicwhippingin default; the punishment for hawking was a fine of 20 shillings bydistraint,ordebtor's prisonin default
  • Section 28 made an exception to section 23 for "seamen, fishermen, andday labourers"in houses worth under" forty shillings the year ". Aforty-shilling freeholdqualified for the parliamentary franchise in acounty borough constituency.

Effect[edit]

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 the1641 Rebellionto 22% before theWilliamite Warto 14% in 1704.[10]The figure of 5% in 1776 given inArthur Young'sTour in Irelandis probably an underestimate,[9]although in 1778 only 1.5% of rent was paid to Catholics.[10]

Catholic gavelkind cementeda tradition of farm subdivision,[10]which persisted beyond the act's repeal and contributed to theGreat Famineof the 1840s.

Lord Redesdale,theLord 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 (I)] 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 (I)] 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 ofJudgmentswas 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[edit]

The act was "explained and amended" by a 1709 act, 8 Anne c. 3 (I), which specified certain time limits left ambiguous by the original act, and closed some loopholes used by Catholics to remainbeneficial ownersof nominally Protestant property.[13]

A 1719 act, 6 Geo. 1. c. 9 (I)[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 centuryRoman Catholic relief billseased the Penal Laws, by explicit or implicit repeal and replacement. In 1772 Catholics were allowed to lease up to 50Irish acresofbog-landfor up to 61 years by the act 11 & 12 Geo. 3. c. 21 (I).[17]The 1704oath of allegiancefor Catholics was replaced in 1774 by 13 & 14 Geo. 3. c. 35 (I).[18]Gardiner's Act, theLeases for Lives Act 1777(17 & 18 Geo. 3. c. 49 (I))[19](the Irish re-enactment of the BritishPapists Act 1778(18 Geo. 3.c. 60)) 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]TheRoman Catholic Relief Act 1782(21 & 22 Geo. 3. c. 24 (I)) repealed section 23 of the 1704 act.[25]Another act of 1782, 21 & 22 Geo. 3. c. 62 (I), allowed lay Catholics to be guardians of Protestants.[26]Most restrictions on intermarriage were removed by theRoman Catholic Relief Act 1792(32 Geo. 3. c. 21 (I)).[27]Many Penal Laws were repealed in general terms by theRoman Catholic Relief Act 1793;[28]the sacramental test for Catholics was effectively replaced by the 1774 oath.[29][n 3]

TheRoman Catholic Relief Act 1829(10 Geo. 4.c. 7)[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 andLord 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]TheReligious Disabilities Act 1846(9 & 10 Vict.c. 59), 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 thePromissory Oaths Act 1871(34 & 35 Vict.c. 48), with the exception of section 25,[37]which was made redundant by thecoming into forcein 1871 of theIrish Church Act 1869,and was repealed by theStatute Law Revision (Ireland) Act 1878.[38]

Notes[edit]

  1. ^OrPopery Act 1703.Noshort titlewas assigned to the act before its repeal. Where aparliamentary sessionran 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 1704andPopery Act 1703respectively.
  2. ^The 1780 act referred to "Protestants". A 1793 act, 33 Geo. 3. c. 51 (I),[22]clarified that the 1780 act only applied to Dissenters, not members of the established Church of Ireland. An 1832 act, theSacramental Test (Ireland) Act 1832(2 & 3 Will. 4.c. 7), repealed the 1793 act and extended the 1780 act to all Protestants.[23]
  3. ^In consequence, theSacramental Test Act 1828(9 Geo. 4.c. 17) did not extend to Ireland.

Sources[edit]

  • Bartlett, Thomas (1992).The Fall and Rise of the Irish Nation: The Catholic Question, 1690–1830.Savage, Maryland:Barnes & Noble.ISBN978-0-389-20974-4.
  • Curry, John(1786)."Appendix XVI: Account of the Debates on the Popery Laws, 2 Ann.".An Historical and Critical Review of the Civil Wars in Ireland.Vol. 2. Dublin: Luke White. pp. 386–399.
  • McGrath, Charles Ivar (29 October 2021)."The Penal Laws: Origins, Purpose, Enforcement and Impact".In Costello, Kevin; Howlin, Niamh (eds.).Law and Religion in Ireland, 1700–1970.Palgrave Modern Legal History. Springer Nature. pp. 13–48.doi:10.1007/978-3-030-74373-4_2.ISBN978-3-030-74373-4.
  • Simms, J.G. (October 1960). "The making of a penal law (2 Anne, c.6), 1703–4".Irish Historical Studies.12(46): 105–118.doi:10.1017/S0021121400019660.JSTOR30005169.

References[edit]

  1. ^abcde"Bill Number 5355: To prevent the further growth of Popery".Irish Legislation Database.Queens University Belfast.Retrieved8 February2023.
  2. ^abAndrew Lyall; Land Law in Ireland;ISBN1-85800-199-4
  3. ^Simms 1960 p. 105
  4. ^"Bill 2065: To prevent the further growth of Popery in this kingdom".Irish Legislation Database.Queens University Belfast.Retrieved8 February2023.
  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.ISSN0021-1214.JSTOR20547499.
  9. ^abcMcGrath 2021p. 45
  10. ^abcJohnston-Liik, Edith Mary (2006)."Introduction".MPs in Dublin: Companion to History of the Irish Parliament, 1692–1800.Ulster Historical Foundation. p. 5.ISBN978-1-903688-60-1.
  11. ^ Moore v. Butler,2 Schoales and Lefroy,259–260 (High Court of Chancery, Ireland7 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.6(46). Dublin: E. Ponsonby: 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 Geo. 2. c. 2 (I), 3 Geo. 2. c. 6 (I), 5 Geo. 2. c. 5 (I), 7 Geo. 2. c. 4 (I), 13 Geo. 2. c. 7 (I), 15 Geo. 2. c. 4 (I), 17 Geo. 2. c. 9 (I), 19 Geo. 2. c. 8 (I), 21 Geo. 2. c. 5 (I), 23 Geo. 2. c. 7 (I), 25 Geo. 2. c. 7 (I), 29 Geo. 2. c. 2 (I), 31 Geo. 2. c. 4 (I), 33 Geo. 2. c. 3 (I), 1 Geo. 3. c. 4 (I), 3 Geo. 3. c. 3 (I), 5 Geo. 3. c. 11 (I), 7 Geo. 3. c. 16 (I), 11 Geo. 3. c. 3 (I), 11 & 12 Geo. 3. c. 29 (I), 13 & 14 Geo. 3. c. 13 (I), 15 & 16 Geo. 3. c. 5 (I), 16 Geo. 3. c. 1 (I), 17 & 18 Geo. 3. c. 5 (I), 19 & 20 Geo. 3. c. 28 (I), 21 & 22 Geo. 3. c. 7 (I), 25 Geo. 3. c. 32 (I)
  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. ^ab10 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.Retrieved14 February2023.
  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.

External links[edit]

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