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Tag Archives: Early Irish Law


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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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The Flight of the Earls

On September 4, 1607, Hugh O’Neill, Earl of Tyrone, and Rory O’Donnell, 1st Earl of Tyrconnell, and about ninety followers depart from Lough Swilly for the European continent. It is known in Irish history as the “Flight of the Earls.” Their permanent exile is a watershed event in Irish history, symbolizing the end of the old Gaelic order.

After the defeat at the Siege of Kinsale in 1601, Hugh Roe O’Donnell of Tyrconnell travels to Spain to seek support from Philip III. Unsuccessful, he dies in Spain and is succeeded by his younger brother Rory O’Donnell.

The O’Neills and O’Donnells retain their lands and titles, although with much-diminished extent and authority. However, the countryside is laid bare in a campaign of destruction in 1602, which induces famine in 1603. Hugh O’Neill, Earl of Tyrone, is pardoned under the terms of the Treaty of Mellifont in March 1603 and submits to the crown.

When King James VI and I takes the English throne in 1603, he quickly proceeds to issue pardons for the Irish lords and their rebel forces. Already reigning as king of Scotland, he has a better understanding of the advantages from working with local chiefs in the Scottish Highlands. However, as in other Irish lordships, the 1603 peace involves O’Neill losing substantial areas of land to his cousins and neighbors, who would be granted freeholds under the English system, instead of the looser arrangements under the former Brehon law system. This is not a new policy but is a well-understood and longstanding practice in the Tudor conquest of Ireland.

On September 10, 1602, the Prince of Tyrconnell has already died, allegedly assassinated, in Spain, and his brother succeeds him as 25th Chieftain of the O’Donnell clan. He is later granted the Earldom of Tyrconnell by King James I on September 4, 1603, and restored to a somewhat diminished scale of territories in Tyrconnell on February 10, 1604.

In 1605, the new Lord Deputy of Ireland, Sir Arthur Chichester, begins to encroach on the former freedoms of the two Earls and The Maguire, enforcing the new freeholds, especially that granted in North Ulster to the O’Cahan chief. The O’Cahan had formerly been important subjects of the O’Neills and required protection; in turn, Chichester wants to reduce O’Neill’s authority. O’Cahan has also wanted to remove himself from O’Neill’s overlordship. An option is to charge O’Neill with treason if he does not comply with the new arrangements. The discovery of the Gunpowder Plot in the same year makes it harder for Catholics to appear loyal to both the crown and the papacy. A lengthy legal battle however finds in O’Neill’s favor.

By 1607, O’Neill’s allies the Maguires and the Earl of Tyrconnell are finding it hard to maintain their prestige on lower incomes. They plan to seek Spanish support before news of the Battle of Gibraltar arrives. When their ship drops anchor, O’Neill seems to have joined them on impulse. He had three options:

  • Flee with his friends and hope for a reinvasion by Spain
  • Go to London and stay at court until his grievances are redressed
  • Do nothing and live on a reduced income as a large landowner in Ulster

Fearing arrest, they choose to flee to Continental Europe, where they hope to recruit an army for the invasion of Ireland with Spanish help. However, earlier in 1607 the main Spanish fleet in Europe had been defeated by the Dutch in the Battle of Gibraltar. But the oft-repeated theory that they are all about to be arrested contradicts writer Tadhg Ó Cianáin, the main historical source on the Flight, who says at the start of his account that O’Neill heard news of the ship anchored at Rathmullen on Thursday September 6, and “took his leave of the Lord Justice (Chichester) the following Saturday.” They had been meeting at Slane for several days, and there is no proof that warrants for his arrest have been drawn up, nor is it a hurried departure.

Also, as the Anglo-Spanish War (1585–1604) has been ended by the Treaty of London in 1604, King Philip III of Spain wants to remain at peace with England under its new Stuart dynasty. As a part of the peace proposals, a Spanish princess is to marry James’ son, Henry, though this never happens. Spain had also gone bankrupt in 1598. Tyrone ignores all these realities, remains in Italy, and persists with his invasion plan until his death in exile in 1616.

The earls set sail from Rathmullan, a village on the shore of Lough Swilly in County Donegal, with some of the leading Gaelic families in Ulster. Several leave their wives behind, hoping either to return or retrieve them later. They travel down Lough Swilly on a French ship. Their departure is the end of the old Gaelic order, in that the earls are descended from Gaelic clan dynasties that had ruled their parts of Ulster for centuries. They finally reach the Continent on October 4, 1607.

Their destination is Spain, but they disembark in France. The party proceeds overland to Spanish Flanders, some remaining in Leuven, while the main party continues to Italy. Tadhg Ó Cianáin subsequently describes the journey in great detail. While the party is welcomed by many important officials in the Spanish Netherlands, he makes no mention of any negotiations or planning between the earls and the Spanish to start a new war to regain the earls’ properties.

James I soon plants the O’Neill and O’Donnell lands with Protestant settlers, helping to sow the seeds of the present “Troubles.” O’Donnell dies in Rome in 1608 and O’Neill dies there also in 1616.

Ó Cianáin’s diary is important as the only continuous and contemporaneous account of the Flight. Its original title, Turas na dTaoiseach nUltach as Éirinn – the departure of the Chiefs of Ulster from Ireland – has been changed since the creation of the more dramatic phrase “Flight of the Earls” to the latter’s modern literal translation, Imeacht na nIarlaí.

The Flight of the Earls is a watershed event in Irish history, as the ancient Gaelic aristocracy of Ulster goes into permanent exile. Despite their attachment to and importance in the Gaelic system, the Earls’ ancestors had accepted their Earldoms from the English-run Kingdom of Ireland in the 1540s, under the policy of surrender and regrant. Some historians argue that their flight is forced upon them by the fallout from the Tudor conquest of Ireland, while others that it is an enormous strategic mistake that clears the way for the Plantation of Ulster.

From 1616, a number of bards outside Ulster have a poetic debate in the “Contention of the bards” and one of the arguments celebrates King James’s Gaelic-Irish Milesian ancestry through Malcolm III of Scotland. So, it is debatable whether the Gaelic order has ended or is evolving.

(Pictured: A bronze sculpture commemorating the Flight in Rathmullan, County Donegal)


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Death of Philologist Eugene O’Curry

eugene-ocurry

Eugene O’Curry, philologist and antiquary, dies of a heart attack in Dublin on July 30, 1862.

O’Curry is born at Doonaha, near Carrigaholt, County Clare, the son of Eoghan Ó Comhraí, a farmer, and his wife Cáit. Eoghan has spent some time as a traveling peddler and has developed an interest in Irish folklore and music. Unusual for someone of his background, he is literate and is known to possess a number of Irish manuscripts. It is likely that Eoghan is primarily responsible for his son’s education.

Having spent some years working on his father’s farm and as a school teacher, O’Curry moves to Limerick in 1824 and spends seven years working there at a psychiatric hospital. He marries Anne Broughton, daughter of John Broughton of Killaderry near Broadford, County Limerick on October 3, 1824. He is a supporter of Catholic emancipation and in 1828 writes a poem congratulating Daniel O’Connell on his election as an MP.

During this period O’Curry is establishing a reputation for his knowledge of the Irish language and Irish history, and, by 1834, is in correspondence with the antiquary John O’Donovan. He is employed, from 1835 to 1842, on O’Donovan’s recommendation, in the topographical and historical section of Ordnance Survey Ireland. O’Donovan goes on to marry O’Curry’s sister-in-law, Mary Anne Broughton, in 1840. O’Curry spends much of the remainder of his life in Dublin and earns his living by translating and copying Irish manuscripts. The catalogue of Irish manuscripts in the British Museum (1849) is compiled by him for a fee of £100. He is responsible for the transcripts of Irish manuscripts from which O’Donovan edits the Annals of the Four Masters between 1848 and 1851.

In 1851 O’Curry is elected a member of the Royal Irish Academy and, on the founding of the Catholic University of Ireland in 1854, he is appointed professor of Irish history and archaeology. He works with George Petrie on the Ancient Music of Ireland (1855). In 1852, he and O’Donovan propose the Dictionary of the Irish Language, which is eventually begun by the Royal Irish Academy in 1913 and finally completed in 1976.

O’Curry’s lectures are published by the university in 1860, and give a better knowledge of Irish medieval literature than can be obtained from any other one source. Three other volumes of lectures are published posthumously, under the title On the Manners and Customs of the Ancient Irish (1873). His voluminous transcripts, notably eight huge volumes of early Irish law, testify to his unremitting industry. The Celtic Society, of the council of which he is a member, publishes two of his translations of medieval tales.

Eugene O’Curry dies of a heart attack at his home in Dublin on July 30, 1862, and is survived by two sons and two daughters. He is buried at Glasnevin Cemetery in Dublin. O’Curry Road in the Tenters area of Dublin 8 is named in his honour.