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The Popery Act 1704 Receives Royal Assent

An Act to prevent the further Growth of Popery, commonly known as the Popery Act or the Gavelkind Act, is an act of the Parliament of Ireland that receives royal assent on March 4, 1704. It is designed to suppress Roman Catholicism in Ireland (“Popery“). William Edward Hartpole Lecky calls it the most notorious of the Irish Penal Laws.

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

Two separate bills “to prevent the further Growth of Popery” are introduced in the parliamentary session of 1703–04. One originates with the Privy Council of Ireland and is referred on July 4, 1703, to the Attorney-General for Ireland. The other is introduced as heads of a bill in the Irish House of Commons on September 28, 1703, and is sent to the Lord Lieutenant of Ireland on November 19. Under Poynings’ Law, both bills are transmitted to the Privy Council of England for approval. Formally, one bill is vetoed, and the other is returned to Dublin with amendments. A lack of surviving documentation makes it impossible to determine which of the two has which fate. The approved bill is engrossed on January 20, 1704, presented in the Commons on February 14, sent to the Irish House of Lords on February 25, and given royal assent on March 4.

Sir Theobald “Toby” Butler, the former Solicitor-General for Ireland, a Roman Catholic, makes 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 denounce the measure but to no avail.

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

Catholic gavelkind cements a tradition of farm subdivision, which persists beyond the act’s repeal and contributes to the Great Famine of the 1840s.

The act is “explained and amended” by a 1709 act, 8 Anne c. 3 (I), which specifies certain time limits left ambiguous by the original act, and closes some loopholes used by Catholics to remain beneficial owners of nominally Protestant property.

A 1719 act, 6 Geo. 1. c. 9 (I), indemnifies officials who have not hitherto subscribed to the oath required by the Popery Act. The time period for Dissenters subscribing to the oath is routinely extended, initially by an Indemnity Act at the start of each biennial parliamentary session. Similar acts are passed by the British parliament, and after the union the UK parliament continues the practice.

From the late 18th century Roman Catholic relief bills ease the Penal Laws, by explicit or implicit repeal and replacement. In 1772, Catholics are allowed to lease up to fifty Irish acres of bog-land for up to 61 years. The 1704 oath of allegiance for Catholics is replaced in 1774. Gardiner’s Act, the Leases for Lives Act 1777, implicitly repeals many other provisions of the 1704 act. Some are replaced with less onerous restrictions. The sacramental test is repealed for Dissenters in 1780. The Roman Catholic Relief Act 1782 repeals section 23 of the 1704 act. Another act of 1782 allows lay Catholics to be guardians of Protestants. Most restrictions on intermarriage are removed by the Roman Catholic Relief Act 1792. Many Penal Laws are repealed in general terms by the Roman Catholic Relief Act 1793. The sacramental test for Catholics is effectively replaced by the 1774 oath.

The Roman Catholic Relief Act 1829 abolishes the declaration against transubstantiation and specifies a new public oath for Catholics, explicitly permitting Catholics to hold Irish civil or military offices other than Lord Lieutenant and Lord Chancellor of Ireland, with the same oaths as required of non-Catholics (in addition to the new Catholic oath).

The Criminal Law Commission‘s 1845 report on oaths says sections 1, 3, and 6 of the 1704 act have fallen into disuse and should be repealed. The Religious Disabilities Act 1846, passed in consequence of the committee’s report, explicitly repeals provisions of sections 1, 3, and 4 of the 1704 act.

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


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“Public Safety Bill” Passed by Dáil Éireann

The Free State’s Provisional Government puts the “Public Safety Bill” before Dáil Éireann on September 27, 1922, which passes by 41 votes to 18. This is emergency legislation which allows for the execution of those captured bearing arms against the State. The legislation passes to the National Army powers of punishment for anyone “taking part in or aiding and abetting attacks on the National Forces,” having possession of arms or explosives “without the proper authority” or disobeying an Army General Order.

The legislation gives the Military Courts the right to impose the sentence of death, imprisonment or penal servitude on those found to be guilty of such offences, the sentence only requiring the signatures of two officers. By time the bill is a year old, 81 men are executed under its terms and over 12,000 men and women imprisoned.

The reason for such punitive legislation is the dragging on of the Irish Civil War caused by the Anglo-Irish Treaty. A pro-Treaty offensive against the anti-Treaty Irish Republican Army (IRA) in the summer of 1922 appears to have won the war for the government but the anti-Treatyites or republicans subsequently fall back on guerrilla tactics which the newly formed Free State or National Army have great difficulty in suppressing. Ernest Blythe, the Minister for Finance in the Provisional Government, later recalls, “there was for some time a feeling that the Civil War would speedily end as major resistance was broken, but actually it began to assume a chronic character.”

In the week preceding the Dáil’s motion, on September 21, six National Army soldiers are killed in a prolonged engagement with Republican fighters near Ballina, County Mayo. On the same day, the Free State barracks in Drumshambo, County Leitrim, is attacked and taken and one soldier is killed. On September 22, a National Army soldier is killed and several soldiers and three civilians injured in a gun and grenade attack by Republicans on Free State troops on Eden Quay in central Dublin. And on the day of the Bill itself coming before the Dáil, in County Kerry several hundred anti-Treaty IRA guerrillas attack the town of Killorglin and are only repulsed after 24 hours of fighting, when Free State troops arrive from Tralee.

At the time and since, the legislation passed in 1922 is known as the Public Safety Bill. However, no such Bill or Act can be found in the records of the Irish state. The Provisional Government have no legal right under the Treaty to enact new legislation without royal assent, the King being represented in the person of the Governor-General. And in theory the Provisional Government’s powers do not apply after the Treaty formally passes into law on December 6, 1922.

So technically speaking the Public Safety Bill is not a law but simply a resolution passed in the Dáil. However, since there was, as yet no Governor-General who could give his assent and as the government felt the situation was too grave for legal niceties, the legislation setting up military courts was passed anyway. It is not until August 1923, when the Free State passes an Act of Indemnity for all actions committed during the Irish Civil War and also pass new, formal special powers legislation – The Emergency Powers Act – that retrospectively legalises what it had enacted in the autumn of 1922.

After an amnesty of two weeks, in which anti-Treaty fighters could surrender without consequences, the legislation comes into force in mid-October. Republicans at first do not believe that the government is serious about enforcing what its foes term “the Murder Bill.” It is in practice nearly two months before it is used in earnest.

On November 17, 1922, four IRA men who had been captured in Dublin are shot by firing squad. By the end of the week, Erskine Childers, who had served as secretary to the delegation which signed the Treaty but later organized Republican propaganda against it, is also dead. He had been captured at his home in County Wicklow on November 11 in possession of a small pistol Michael Collins had given him before he departed for Treaty negotiations in London. He is sentenced and shot on November 24. On November 30 another three Republican prisoners are executed in Dublin.

Liam Lynch, IRA Chief of Staff, issues a general order that Teachtaí Dála (TDs) who had voted for the Bill be shot on sight. On December 6, in retaliation for the executions, IRA members assassinate the TD Sean Hales in Dublin. In reprisal for that four senior republicans, Rory O’Connor, Liam Mellows, Richard Barrett and Joe McKelvey, who had been captured long before the Public Safety legislation is passed are summarily shot.

The legislation passed on September 27, 1922, may well have helped, as its supporters claimed, to break anti-Treaty resistance and to bring the Irish Civil War to an end. However, it also helped to convert the conflict into a feud as bitter and as personal as a vendetta.

(From: “The passing of legislation allowing for executions during the Irish Civil War” by John Dorney, The Irish Story (www.theirishstory.com), September 27, 2013 | Photo: Richard Mulcahy, shown inspecting soldiers in Dublin, argued that permitting official executions would prevent National Army troops from carrying out unofficial killings)