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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 Richard Talbot, 1st Earl of Tyrconnell

Richard Talbot, 1st Earl of Tyrconnell, PC, Irish politician, courtier and soldier, dies of apoplexy on August 14, 1691, in Limerick, County Limerick. He is also known by the nickname “Mad Dick” Talbot.

Talbot is born likely in 1630, probably in Dublin. He is one of sixteen children, the youngest of eight sons of William Talbot and his wife Alison Netterville. His father is a lawyer and the 1st Baronet Talbot of Carton, County Kildare. His mother is a daughter of John Netterville of Castletown, Kildare. The Talbots are descended from a Norman family that had settled in Leinster in the 12th century. They adhere to the Catholic faith, despite the founding of the Reformed Church of Ireland under Henry VIII. Little is recorded of Talbot’s upbringing. As an adult he grows to be unusually tall and strong by standards of the time.

Talbot marries Katherine Baynton in 1669, and they have two daughters, Katherine and Charlotte. Katherine dies in 1679. In 1681, he marries Frances Jennings, sister of Sarah Jennings, the future Sarah Churchill, Duchess of Marlborough.

Talbot’s early career is spent as a cavalryman in the Irish Confederate Wars. Following a period on the European continent, he joins the court of James, Duke of York, then in exile following the English Civil War, becoming a close and trusted associate. After the 1660 restoration of James’s older brother, Charles, to the thrones of England, Ireland and Scotland, he begins acting as agent or representative for Irish Catholics attempting to recover estates confiscated after the Cromwellian conquest, a role that defines the remainder of his career. James converts to Catholicism in the late 1660s, strengthening his association with Talbot.

When James takes the throne in 1685, Talbot’s influence increases. He oversees a major purge of Protestants from the Irish Army, which had previously barred most Catholics. James creates him Earl of Tyrconnell and later makes him Viceroy, or Lord Deputy of Ireland. He immediately begins building a Catholic establishment by admitting Catholics to many administrative, political and judicial posts.

Talbot’s efforts are interrupted by James’s 1688 deposition by his Protestant son-in-law William of Orange. He continues as a Jacobite supporter of James during the subsequent Williamite War in Ireland, but also considers a peace settlement with William that would preserve Catholic rights. Increasingly incapacitated by illness, he dies of a stroke on August 14, 1691, shortly before the Jacobite defeat. He is thought to have been buried in St. Mary’s Cathedral, Limerick. By depriving the Jacobites of their most experienced negotiator, his death possibly has a substantial impact on the terms of the Treaty of Limerick that ends the war.

Talbot’s widow, Frances, and his daughter, Charlotte, remain in France, where Charlotte marries her kinsman, Richard Talbot, son of William Talbot of Haggardstown. Their son is Richard Francis Talbot. Talbot’s other daughter, Katherine, becomes a nun. An illegitimate son, Mark Talbot, serves as an officer in France before his death in the Battle of Luzzara in 1702. Talbot’s estate in nearby Carton, renamed Talbotstown, is uncompleted at the time of his death. Tyrconnell Tower on the site is originally intended by him as a family mausoleum to replace the existing vault at Old Carton graveyard but is also left unfinished.

Talbot is controversial in his own lifetime. His own Chief Secretary, Thomas Sheridan, later describes him as a “cunning dissembling courtier […] turning with every wind to bring about his ambitious ends and purposes.” Many 19th and early 20th century historians repeat this view. Recent assessments have suggested a more complex individual whose career was defined by personal loyalty to his patron James and above all by an effort to improve the status of the Irish Catholic gentry, particularly the “Old English” community to which he belonged.

(Pictured: Watercolour portrait of Richard Talbot by John Bulfinch (d.1728) after painting by Sir Godfrey Kneller)


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Death of Henry Capell, 1st Baron Capell of Tewkesbury

Henry Capell, 1st Baron Capell of Tewkesbury KB, PC, English politician who sits in the House of Commons of England between 1660 and 1692, dies in Chapelizod, Dublin, on May 30, 1696.

Capell is born in Little Hadham, Hertfordshire, England, in 1638. He is the son of Arthur Capell, 1st Baron Capell of Hadham, and Elizabeth Morrison. He is baptised on March 6, 1638. His father is raised to the peerage in 1641, and he dies fighting for the King in the English Civil War in 1649 as one of the commanders of the Colchester garrison. His eldest brother is Arthur Capell, 1st Earl of Essex.

Capell founds the Kew Gardens at Kew, a district in the London Borough of Richmond upon Thames. Later he is elected Member of Parliament for Tewkesbury in the Convention Parliament. He is invested as a Knight of the Order of the Bath, on April 23, 1661. In 1661, he is re-elected MP for Tewkesbury in the Cavalier Parliament. He is a member of the Privy Council of Ireland from April 1673 to March 1684/85. He is re-elected MP for Tewkesbury in the two elections of 1679, is a member of the Privy Council of England from April 22, 1679, to January 31, 1680, and is First Lord of the Admiralty, between 1679 and 1680.

In 1689, Capell is elected MP for Cockermouth and is Lord of the Treasury, between 1689 and 1690. He is invested again as Privy Councillor, on February 14, 1689. He is elected MP for Tewkesbury in 1690, and sits until April 11, 1692, when he is ennobled as Baron Capell of Tewkesbury, in the County of Gloucester. One year later, he becomes Lord Justice of Ireland and in turn a Privy Councillor of Ireland, in June 1693. In 1695 and 1696, he is Lord Deputy of Ireland. His term as Lord Deputy is not considered successful because of him being a firm Whig and presiding over an administration which is deeply divided between Whigs and Tories. He does nothing to help change this situation.

Capell dies at the age of 58 in Chapelizod, County Dublin, on May 30, 1696. He is buried on September 8, 1696, in Little Hadham, Hertfordshire. The barony dies with him.

On February 16, 1659, Capell marries Dorothy Bennet, daughter of Richard Bennet. The marriage is childless but does bring part of what later becomes Kew Palace into the Capell family, leading to its becoming known as Capel House. Dorothy dies in 1721, and through her will endows a number of charities.

(Pictured: “Sir Henry Capel (1638-1696),” oil on canvas by Peter Lely, Metropolitan Museum of Art)


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Birth of Thomas Butler, 6th Earl of Ossory

Vice Admiral Thomas Butler, 6th Earl of Ossory, KG, PC, PC (Ire), Irish soldier and politician, is born on July 8, 1634, at Kilkenny Castle. He is the eldest son of James Butler, 1st Duke of Ormond, and Elizabeth Preston. He predeceases his father and therefore never becomes duke.

When Butler is born, his father is then the 12th Earl of Ormond but is raised to marquess and duke. His family, the Butler dynasty, is Old English and descends from Theobald Walter, who had been appointed Chief Butler of Ireland by King Henry II in 1177. His mother is a second cousin once removed of his father as she is a granddaughter of Black Tom, 10th Earl of Ormond. Her father, however, is Scottish, Richard Preston, 1st Earl of Desmond, a favourite of James I. Both parents are Protestants. They married on Christmas Day 1629.

Butler is one of ten siblings, eight brothers and two sisters, but five of the sons die in childhood. As the eldest living son, he is the heir apparent and is styled with the corresponding courtesy title, which at first is Viscount Thurles but changed to Earl of Ossory when his father becomes marquess in 1642. His early years are spent in Ireland until 1647 when he accompanies his father to England. In 1648 his father renews his support for the royalist cause and he and his son have to flee to France, arriving in Caen in February 1648. Lady Ormond also moves to Caen, where she arrives on June 23, 1648, with his siblings.

Butler is an accomplished athlete and a good scholar. Having come to London in 1652 he is rightly suspected of sympathising with the exiled royalists, and in 1655 is jailed by Oliver Cromwell. After his release about a year later he goes into exile to the Netherlands where Charles II has his exile court at the time.

On November 17, 1659, while in exile, Butler marries Emilia van Nassau, the second daughter of Louis of Nassau, Lord of De Lek and Beverweerd. They have eleven children, including two sons: James (1665–1745), who becomes the 2nd Duke of Ormonde in 1688; Charles (1671–1758), who becomes the de jure 3rd Duke of Ormonde following his elder brother’s attainder in 1715; Elizabeth (died 1717), who marries William Stanley, 9th Earl of Derby in 1673; Amelia (died 1760), who inherits the estates of her brother Charles and never marries; and Henrietta (died 1724), who marries Henry de Nassau d’Auverquerque, 1st Earl of Grantham.

Butler accompanies Charles II back to England in 1660. In 1661 he becomes a member of both the English and the Irish houses of commons, representing in the former Bristol and Dublin University in the latter.

In 1662 Butler is called to the Irish House of Lords under a writ of acceleration as the Earl of Ossory. His father holds the title “5th Earl of Ossory” as one of his subsidiary titles. The acceleration makes Thomas Butler the 6th Earl of Ossory. This is the only substantive title he ever holds, as he predeceases his father and therefore never succeeds to his father’s titles. His eldest son, however, would later become the 2nd Duke of Ormond and the 7th Earl of Ossory.

Butler holds several military appointments: lieutenant-general of the army in Ireland (appointed in 1665); created an English peer as Lord Butler (in 1666); Lord of the Bedchamber to Charles II (appointed in 1660), a post he holds until his death.

In 1665 a fortunate accident allows Butler to take part in the Battle of Lowestoft against the Dutch, and in May 1672, being now in command of a ship, he fights against the same enemies in the Battle of Solebay, serving with great distinction on both occasions. He is partly responsible for this latter struggle, as on March 12, 1672, before war is declared, he attacks the Dutch Smyrna fleet, an action which he greatly regrets later in life. While visiting France in 1672 he rejects the liberal offers made by Louis XIV to induce him to enter the service of France and returning to England he adds to his high reputation by his conduct during the Battle of Texel in August 1673. From 1677 until 1679, he serves alongside his father as a Lord of the Admiralty.

Butler is intimate with William, Prince of Orange, and in 1677 he joins the allied army in the Netherlands, commanding the British contingent and winning great fame at the siege of Mons in 1678. He acts as deputy for his father, who is Lord Lieutenant of Ireland, and in parliament he defends Ormond’s Irish administration with great vigour. In 1680 he is appointed governor of English Tangier, but his death prevents him from taking up his new duties.

Butler dies on July 30, 1680, at Arlington House in London. He is buried provisionally in Westminster Abbey on July 31, 1680. The ceremony of burial is performed belatedly on November 13, 1680. Some say Butler’s body is later taken to Ireland and reburied in the family vault in St. Canice’s Cathedral, Kilkenny. James, his eldest son, succeeds him as the 7th Earl of Ossory and in 1688 becomes the 2nd Duke of Ormond.

One of Butler’s most intimate friends is John Evelyn, who eulogises him in his Diary.

(Pictured: “Thomas Butler, Earl of Ossory” by Peter Lely, painting, circa 1678, National Portrait Gallery)


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Death of Thomas Butler, 6th Earl of Ossory

Vice Admiral Thomas Butler, 6th Earl of Ossory, KG, PC, PC (Ire), Irish soldier and politician, dies in London on July 30, 1680.

Thomas is born on July 8, 1634, at Kilkenny Castle, the eldest son and one of ten siblings of James Butler, 1st Duke of Ormond and his wife Elizabeth Preston. His father is then the 12th Earl of Ormond but would be raised to marquess and duke. His family, the Butler dynasty, is Old English and descends from Theobald Walter, who had been appointed Chief Butler of Ireland by Henry II of England in 1177. His mother is a second cousin once removed of his father as she is a granddaughter of Thomas Butler, 10th Earl of Ormond. Her father, however, is Scottish, Richard Preston, 1st Earl of Desmond, a favourite of James I. Both parents are Protestants.

As the eldest living son, he is the heir apparent and is styled with the corresponding courtesy title, which at first is Viscount Thurles but changed to Earl of Ossory when his father becomes marquess in 1642. His early years are spent in Ireland until 1647 when he accompanies his father to England. In 1648 his father renews his support for the royalist cause and he and his son have to flee to France, arriving in Caen in February 1648. Lady Ormond also moves to Caen, where she arrives on June 23, 1648, with his siblings.

Butler is an accomplished athlete and a good scholar. Having come to London in 1652 he is rightly suspected of sympathising with the exiled royalists, and in 1655 is jailed by Oliver Cromwell. After his release about a year later he goes into exile to the Netherlands where Charles II has his exile court at the time.

On November 17, 1659, while in exile, Butler marries Emilia van Nassau, the second daughter of Louis of Nassau, Lord of De Lek and Beverweerd. They have eleven children.

Butler accompanies Charles II back to England in 1660. In 1661 he becomes a member of both the English and the Irish houses of commons, representing in the former Bristol and Dublin University in the latter.

In 1662 Butler is called to the Irish House of Lords under a writ of acceleration as the Earl of Ossory. His father holds the title “5th Earl of Ossory” as one of his subsidiary titles. The acceleration makes Thomas Butler the 6th Earl of Ossory. This is the only substantive title he ever holds, as he predeceases his father and therefore never succeeds to his father’s titles.

Butler holds several military appointments including lieutenant-general of the army in Ireland, created an English peer as Lord Butler in 1666, and Lord of the Bedchamber to Charles II (appointed in 1660 and held until his death).

In 1665 a fortunate accident allows Butler to take part in the Battle of Lowestoft against the Dutch, and in May 1672, being now in command of a ship, he fights against the same enemies in the Battle of Solebay, serving with great distinction on both occasions. While visiting France in 1672 he rejects the liberal offers made by Louis XIV to induce him to enter the service of France and returning to England he adds to his high reputation by his conduct during the Battle of Texel in August 1673. From 1677 until 1679, he serves alongside his father as a Lord of the Admiralty.

Butler is intimate with William II, Prince of Orange, and in 1677 he joins the allied army in the Netherlands, commanding the British contingent and winning great fame at the siege of Mons in 1678. He acts as deputy for his father, who is Lord Lieutenant of Ireland. In 1680 he is appointed governor of English Tangier, but his death prevents him from taking up his new duties.

Butler dies on July 30, 1680, at Arlington House in London. He is buried provisionally in Westminster Abbey on July 31, 1680. The ceremony of burial is performed belatedly on November 13, 1680. Some say his body is later taken to Ireland and reburied in the family vault in St. Canice’s Cathedral, Kilkenny. James, his eldest son, succeeds him as the 7th Earl of Ossory and becomes the 2nd Duke of Ormond in 1688.

(Pictured: “Thomas Butler, Earl of Ossory,” painting by Peter Lely, circa 1678, Source: National Portrait Gallery)


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Enactment of Poyning’s Law

poynings-law-enacted

Poynings’ Law, also known as the Statute of Drogheda, an Act of the Parliament of Ireland which provides that the parliament cannot meet until its proposed legislation has been approved by both Ireland’s Lord Deputy and Privy Council and by England’s monarch and Privy Council, is enacted on December 1, 1494.

Poynings’ Parliament is called by Sir Edward Poynings in his capacity as Lord Deputy of Ireland, appointed by King Henry VII of England in his capacity as Lord of Ireland. Coming in the aftermath of the divisive Wars of the Roses, Poynings’ intention is to make Ireland once again obedient to the English monarchy. Assembling the Parliament on December 1, 1494, he declares that the Parliament of Ireland is thereafter to be placed under the authority of the Parliament of England. This marks the beginning of Tudor direct rule in Ireland, although Henry VII is still forced to rely on Old English nobles (such as Gerald FitzGerald, 8th Earl of Kildare, despite his support for Lambert Simnel) as his deputies in Ireland through the intervening years.

The working of Poynings’ Law takes place in several steps. The first step is for the lieutenant governor and the Irish council, or Irish executive, to decide that a parliament is needed, usually for the purpose of raising funds. At this point the council and lieutenant write drafts of legislation to be proposed to the king and his council. After this has been completed, the lieutenant and council, according to the act, are required to certify the request for parliament “under the great seal of that land [Ireland],” and then forward it to England for approval. Once the request arrives in England, it is reviewed by the King and his council, and a formal licence approving the request for parliament and the draft bills are returned to Ireland. Once the licence is received in Ireland, the governor summons parliament and the bills are passed.

The two important aspects of the procedure presented by Poynings’ Law are transmission and certification. Both of these requirements place limits on various parties within the law-making process in Ireland. The combination of these processes creates a situation where bills can be sent, along with the request for parliament, and the king can amend and remove such bills as he wishes, however he cannot add new bills himself.

Furthermore, the two processes make it impossible for the Irish to add more bills or amendments to a request, after the initial licence request has been granted. This means that any additional bills or amendments that they wish to pass in parliament have to be re-sent along with an entirely new request for parliament. Clearly this creates severe inefficiencies in the legislative process and thus gives the executive in Ireland as well as the Crown an interest in relaxing procedure.

Poynings’ Law is a major rallying point for later groups seeking self-government for Ireland, particularly the Confederate Catholics in the 1640s and Henry Grattan‘s Patriot Party in the late 18th century, who consistently seek a repeal of Poynings’ Law. The Act remains in place until the Constitution of 1782 gives the Irish parliament legislative independence. The Acts of Union 1800 render most of the Constitution of 1782 and Poynings’ Law moot. Poynings’ Law is formally repealed as obsolete by the Statute Law Revision (Ireland) Act 1878.


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Birth of Irish Politician Henry Grattan

henry-grattan

Henry Grattan, Irish politician and member of the Irish House of Commons, who campaigns for legislative freedom for the Irish Parliament in the late 18th century, is born at Fishamble Street in Dublin on July 3, 1746.

Grattan is baptised at the church of St. John the Evangelist in Dublin. He attends Drogheda Grammar School and then goes on to become a distinguished student at Trinity College, Dublin, where he begins a lifelong study of classical literature, and is especially interested in the great orators of antiquity.

After studying at the King’s Inns, Dublin, and being called to the Irish bar in 1772, he never seriously practises law but is drawn to politics, influenced by his friend Henry Flood. He enters the Irish Parliament for Charlemont in 1775, sponsored by Lord Charlemont, just as Flood has damaged his credibility by accepting office. Grattan quickly supersedes Flood in the leadership of the national party, not least because his oratorical powers are unsurpassed among his contemporaries.

Grattan’s movement gains momentum as more and more Irish people come to sympathize with the North American colonists in their war for independence from Great Britain. By 1779, he is powerful enough to persuade the British government to remove most of its restraints on Irish trade, and in April 1780 he formally demands the repeal of Poynings’ Law, which has made all legislation passed by the Irish Parliament subject to approval by the British Parliament. Two years later the British relinquish their right to legislate for Ireland and frees the Irish Parliament from subservience to the English Privy Council. Despite these successes, Grattan soon faces rivalry from Flood, who bitterly criticizes Grattan for failing to demand that the British Parliament completely renounce all claims to control of Irish legislation. Flood succeeds in undermining Grattan’s popularity, but by 1784 Flood himself has lost much of his following.

From 1782 to 1797 Grattan makes limited progress in his struggle to reform the composition of the Irish Parliament and to win voting rights for Ireland’s Roman Catholics. The outbreak of the French Revolution in 1789 bolsters his cause by infusing democratic ideas into Ireland, but the subsequent growth of a radical Irish movement for Catholic emancipation provokes repressive measures by the British. Grattan is caught between the two sides. Ill and discouraged, he retires from Parliament in May 1797 and is in England when the Irish radicals stage an unsuccessful rebellion in 1798.

Grattan returns to Parliament for five months in 1800 and wages a vigorous but fruitless campaign against Prime Minister William Pitt’s plans for the legislative union of the Irish and British parliaments. In 1805, Grattan is elected to the British House of Commons, where for the last 15 years of his life he fights for Catholic emancipation.

In 1920, after crossing from Ireland to London while in poor health to bring forward the Irish question once more, he becomes seriously ill. On his deathbed he speaks generously of Castlereagh, and with warm eulogy of his former rival, Flood. Henry Grattan dies on June 4, 1820, and is buried in Westminster Abbey. His statue is in the Outer Lobby of the Palace of Westminster.

The building housing the faculty of Law and Government at Dublin City University has been named in his honour. Grattan Bridge crossing the River Liffey between Parliament Street on the south side of Dublin and Capel Street on the north side is also named in his honour.