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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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Death of Sir James Shaw Willes

Sir James Shaw Willes, a judge of the English Court of Common Pleas, kills himself at his residence near Watford, Hertfordshire, England, on October 2, 1872, while suffering a nervous breakdown.

Willes is born on February 13, 1814, in Cork, County Cork, the eldest among six children of James Willes, physician, and his wife, Elizabeth Aldworth, daughter of John Shaw, mayor of Cork in 1792. Educated at Dr. Porter’s school in Cork and Trinity College Dublin (TCD), he graduates BA in 1836, having entered the King’s Inns the previous year. In 1837, he goes to London and joins the Inner Temple as a pupil of the noted barrister Thomas Chitty (1802–78), in whose chambers he remains as a salaried assistant and special pleader before being called to the English bar on June 12, 1840. The Willes and Chitty families are connected, and James’s younger sister, Mary, later marries Thomas Chitty’s son.

Willes joins the home circuit, though his practice is chiefly in London in mercantile and maritime law. A leading junior in the Court of Exchequer, he holds the post of tubman from 1851, an honorary position in the gift of the Lord Chief Baron. Known for his erudition, he is persuaded to edit, with Sir Henry Singer Keating, the third and fourth editions of John William Smith‘s Leading Cases (1849, 1856). In 1850, his reputation is such that he is appointed one of the commissioners to draft the common law procedure bill (1854) and is credited with having effected most of the reform therein. On July 3, 1855, he is appointed judge of the Court of Common Pleas, though he has not yet taken silk and is only 41, the youngest lawyer but one to have been appointed to the bench since 1778.

A classical scholar and linguist who knows oriental as well as European languages, who travels widely, loves poetry, and frequents literary men, and whose judgments are clear and philosophical, Willes is accounted among the best common law judges of his day, and is celebrated for the simplicity and lucidity of his style. Notable judgments include Esposito v. Bowden (1857), which lays down that the force of a declaration of war is equal to that of an act of parliament prohibiting commercial transactions with the enemy. In the law of torts, he gives an oft-cited judgment in the case of Indermaur v. Dames (1866), which has been accepted almost as statutory, on the liability of the occupier of a building for the safety of a visitor. In 1868, as one of the first judges appointed to try election petitions, he lays down the rules of practice generally followed afterward. A strong British patriot, he serves in the Inns of Court Volunteers from 1859 until shortly before his death.

On November 3, 1871, Willes is sworn of the privy council. However, his health has deteriorated through overwork and an emotional temperament, and he has long suffered heart disease and gout. In August 1872, after a heavy assize at Liverpool, he returns to his house, Otterspool, Watford, Hertfordshire, and succumbs to a nervous breakdown, which leads to his shooting himself on October 2, 1872. He is buried on October 7 at Brompton Cemetery in London. He is survived fifteen years by his wife, Helen, daughter of Thomas Jennings of Cork, whom he married on May 17, 1856. There have no children.

A tall, reserved man, with a prominent nose and sad eyes, Willes has great affection for children and animals and is singularly emotional. He is known to return to his room and shed tears before passing sentence on a criminal. He never loses his Irish accent. His marriage is allegedly unhappy, as he had been forced into it after he had fallen out of love. Sir Frederick Pollock (1845–1937), author of the magisterial History of English Law before the Time of Edward I and sometime marshal to Willes, dedicates to him his first textbook on torts in 1879, writing that he was “one of those whose knowledge is radiant and kindles answering fire.” A century later, A. W. B. Simpson maintains that “his reputation as a jurist will last as long as the law reports of England are read.”

(From: “Willes, Sir James Shaw” by Bridget Hourican, Dictionary of Irish Biography, http://www.dib.ie, October 2009)


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Birth of Sir Maziere Brady, 1st Baronet & Lord Chancellor of Ireland

Sir Maziere Brady, 1st Baronet, PC (Ire), Irish judge, notable for his exceptionally long, though not particularly distinguished tenure as Lord Chancellor of Ireland, is born on July 20, 1796.

Brady is born on Parliament Street, Dublin, the second son of Francis Tempest Brady of Booterstown, a manufacturer of gold and silver thread, and his wife Charlotte Hodgson, daughter of William Hodgson of Castledawson, County Londonderry. He is baptised at St. Werburgh’s Church, Dublin. He is the brother of Sir Nicholas Brady, Lord Mayor of Dublin, and uncle of the eminent ecclesiastical historian William Maziere Brady.

The Bradys are an old and distinguished Munster family who are particularly associated with the town of Bandon, County Cork. Probably the most celebrated of his ancestors is the poet and psalmist Nicholas Brady (1659–1726), who collaborated with Nahum Tate, the Poet Laureate, on New Version of the Psalms of David.

Other notable forebears include Hugh Brady, the first Protestant Bishop of Meath (d. 1584), his father-in-law Robert Weston who, like Maziere serves as Lord Chancellor of Ireland, and the judge and author Luke Gernon (d. 1672), who is now best remembered for his work A Discourse of Ireland (1620), which gives a detailed and (from the English colonial point of view) not unsympathetic picture of the state of Ireland in 1620.

Brady is educated at Trinity College Dublin and takes his Bachelor of Arts degree in 1816. He enters the Middle Temple in 1816, is called to the Bar in 1819 and becomes King’s Counsel in 1835.

In politics Brady is a Liberal and supports Catholic emancipation. He sits on a commission of inquiry into Irish municipal corporations in 1833. He is appointed Solicitor-General for Ireland in 1837 and Attorney-General for Ireland the following year. In 1840 he is appointed Lord Chief Baron of the Irish Exchequer. In 1846 he is appointed Lord Chancellor of Ireland and serves in that office, with short intervals, for the next 20 years. He retires in 1866 and is made a baronet, of Hazelbrook in the County of Dublin, in 1869. His appointment ends the practice which grew after the Acts of Union 1800 of appointing only English lawyers as Lord Chancellor of Ireland. He sits on the Government Commission on Trinity College Dublin in 1851 and is nominated as Vice-Chancellor of Queen’s University Belfast in 1850. All through his life he shows a keen interest in education.

According to Elrington Ball, Brady’s Lord Chancellorship is notable for its length but for nothing else. Ball calls him “a good Chief Baron spoiled to make a bad Chancellor.” By general agreement he had been an excellent Chief Baron of the Exchequer, having a reputation for being fair-minded, courteous and approachable, but in Ball’s view the more onerous (and partly political) office of Lord Chancellor is beyond his capacity. Unlike some judges whose training had been in the common law, he never quite masters the separate code of equity. Delaney takes a somewhat more favourable view of Brady as Lord Chancellor, arguing that while his judgements do not show any great depth of learning they do show an ability to identify the central issue of any case and to apply the correct legal principle to it.

An anonymous pamphlet from 1850, which is highly critical of the Irish judiciary in general, describes Brady as being unable to keep order in his Court, and easily intimidated by counsel, especially by that formidable trio of future judges, Jonathan Christian, Francis Alexander FitzGerald, and Abraham Brewster. The author paints an unflattering picture of Brady as sitting “baffled and bewildered” in a Court where he is “a judge but not an authority.” On the other hand, Jonathan Christian, who had often clashed with Brady in Court, later praises him as “no ordinary man” despite his shortcomings as a judge. He describes him as “independent-minded, patriotic, natural and unaffected.”

Brady is a founder member of the Stephen’s Green Club and a member of the Royal Dublin Society and the Royal Irish Academy. In addition to the arts, he shows a keen interest in science, especially after his retirement. Like most judges of the time, he has both a town house in central Dublin and a place some distance from the city centre. His country house is Hazelbrook, Terenure, Dublin. He changes his town house several times, settling finally in Pembroke Street.

Brady marries firstly Elizabeth Anne Buchanan, daughter of Bever Buchanan, apothecary of Dublin, and his wife Eleanor Hodgson, in 1823 and they have five children. Elizabeth dies in 1858. In 1860, Brady marries Mary Hatchell, daughter of John Hatchell, Attorney-General for Ireland and Elizabeth Waddy, who survives him. He dies at his house in Pembroke Street on April 13, 1871. He is buried in Mount Jerome Cemetery.


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Birth of James Augustine Healy, Bishop of Portland, Maine

james-augustine-healy

James Augustine Healy, American Roman Catholic priest and the second bishop of Portland, Maine, is born on April 6, 1830, in Macon, Georgia to a multiracial slave mother and Irish immigrant father. He is the first bishop in the United States of any known African descent. When he is ordained in 1854, his multiracial ancestry is not widely known outside his mentors in the Catholic Church.

Healy is the eldest of ten siblings of Michael Morris Healy, an Irish immigrant planter from County Roscommon, and his common law wife Eliza Smith (sometimes recorded as Clark), a multiracial enslaved African American. He achieves many “firsts” in United States history. He is credited with greatly expanding the Catholic church in Maine at a time of increased Irish immigration. He also serves Abenaki people and many parishioners of French-Canadian descent who were traditionally Catholic. He speaks both English and French.

Beginning in 1837, like many other wealthy planters with mixed-race children, Michael Healy starts sending his sons to school in the North. James, along with brothers Hugh and Patrick, goes to Quaker schools in Flushing, New York, and Burlington, New Jersey. Later they each attend the newly opened College of the Holy Cross in Worcester, Massachusetts. He graduates as valedictorian of the college’s first graduating class in 1849.

Following graduation, Healy wishes to enter the priesthood. He cannot study at the Jesuit novitiate in Maryland, as it is a slave state. With the help of John Bernard Fitzpatrick, he enters a Sulpician seminary in Montreal. In 1852, he transfers to study at Saint-Sulpice Seminary in Paris, working toward a doctorate and a career as a seminary professor. After a change of heart, he decides to become a pastor. On June 10, 1854, he is ordained at Notre-Dame de Paris as a priest to serve in Boston, Massachusetts. He is the first African American to be ordained a Roman Catholic priest although at the time he identifies as and is accepted as white Irish Catholic.

When Healy returns to the United States, he becomes an assistant pastor in Boston. He serves the archbishop, who helps establish his standing in the church. In 1866 he becomes the pastor of St. James Church, the largest Catholic congregation in Boston. In 1874 when the Boston legislature is considering taxation of churches, he defends Catholic institutions as vital organizations that help the state both socially and financially. He also condemns certain laws that are generally enforced only on Catholic institutions. He founds several Catholic charitable institutions to care for the many poor Irish immigrants who had arrived during the Great Famine years.

Healy’s success in the public sphere leads to his appointment by Pope Pius IX to the position of second bishop of Portland, Maine. He is consecrated as Bishop of Portland on June 2, 1875, becoming the first African American to be consecrated a Catholic bishop. For 25 years he governs his large diocese, supervising also the founding of the Diocese of Manchester, New Hampshire, when it is split from Portland in 1885. During his time in Maine, which is a period of extensive immigration from Catholic countries, he oversees the establishment of 60 new churches, 68 missions, 18 convents, and 18 schools. During that period, he also serves his Abenaki and French-Canadian parishioners.

Healy is the only member of the American Catholic hierarchy to excommunicate men who joined the Knights of Labor, a national union, which reaches its peak of power in 1886.

Two months before his death on August 5, 1900, Healy is called as assistant to the Papal throne by Pope Leo XIII, a position in the Catholic hierarchy just below that of cardinal.