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.
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.
O’Connell had rejected a suggestion from “friends of emancipation,” and from the English Roman Catholic bishop, John Milner, that the fear of Catholic advancement might be allayed if the Crown were accorded the same right exercised by continental monarchs: a veto on the confirmation of Catholic bishops. O’Connell insists that Irish Catholics would rather “remain forever without emancipation” than allow the government “to interfere” with the appointment of their senior clergy. Instead, he relies on their confidence in the independence of the priesthood from Ascendancy landowners and magistrates to build his Catholic Association into a mass political movement. On the basis of a “Catholic rent” of a penny a month (typically paid through the local priest), the Association mobilises not only the Catholic middle class, but also poorer tenant farmers and tradesmen. Their investment enables O’Connell to mount “monster” rallies that stay the hands of authorities and embolden larger enfranchised tenants to vote for pro-emancipation candidates in defiance of their landlords.
O’Connell’s campaign reaches its climax when he himself stands for parliament. In July 1828, he defeats a nominee for a position in the British cabinet, William Vesey-FitzGerald, in a County Clare by-election, 2057 votes to 982. This makes a direct issue of the parliamentary Oath of Supremacy by which, as a Catholic, he will be denied his seat in the Commons.
As Lord Lieutenant of Ireland, Wellington’s brother, Richard Wellesley, had attempted to placate Catholic opinion, notably by dismissal of the long-serving Attorney-General for Ireland, William Saurin, whose rigid Ascendancy views and policy made him bitterly unpopular, and by applying a policy of prohibitions and coercion against not only the Catholic Ribbonmen but also the Protestant Orangemen. But now both Wellington and his Home Secretary, Robert Peel, are convinced that unless concessions are made, a confrontation is inevitable. Peel concludes, “though emancipation was a great danger, civil strife was a greater danger.” Fearing insurrection in Ireland, he drafts the Relief Bill and guides it through the House of Commons. To overcome the vehement opposition of both the King and of the House of Lords, Wellington threatens to resign, potentially opening the way for a new Whig majority with designs not only for Catholic emancipation but also for parliamentary reform. The King initially accepts Wellington’s resignation and the King’s brother, Ernest Augustus, Duke of Cumberland, attempts to put together a government united against Catholic emancipation. Though such a government would have considerable support in the House of Lords, it would have little support in the Commons and Ernest abandons his attempt. The King recalls Wellington. The bill passes the Lords and becomes law.
The key, defining, provision of the Acts is its repeal of “certain oaths and certain declarations, commonly called the declarations against transubstantiation and the invocation of saints and the sacrifice of the mass, as practised in the Church of Rome,” which had been required “as qualifications for sitting and voting in parliament and for the enjoyment of certain offices, franchises, and civil rights.” For the Oath of Supremacy, the act substitutes a pledge to bear “true allegiance” to the King, to recognise the Hanoverian succession, to reject any claim to “temporal or civil jurisdiction” within the United Kingdom by “the Pope of Rome” or “any other foreign prince … or potentate,” and to “abjure any intention to subvert the present [Anglican] church establishment.”
This last abjuration in the new Oath of Allegiance is underscored by a provision forbidding the assumption by the Roman Church of episcopal titles, derived from “any city, town or place,” already used by the United Church of England and Ireland. (With other sectarian impositions of the Act, such as restrictions on admittance to Catholic religious orders and on Catholic-church processions, this is repealed with the Roman Catholic Relief Act 1926.)
The one major security required to pass the Act is the Parliamentary Elections (Ireland) Act 1829. Receiving its royal assent on the same day as the relief bill, the act disenfranchises Ireland’s forty-shilling freeholders, by raising the property threshold for the county vote to the British ten-pound standard. As a result, “emancipation” is accompanied by a more than five-fold decrease in the Irish electorate, from 216,000 voters to just 37,000. That the majority of the tenant farmers who had voted for O’Connell in the Clare by-election are disenfranchised as a result of his apparent victory at Westminster is not made immediately apparent, as O’Connell is permitted in July 1829 to stand unopposed for the Clare seat that his refusal to take the Oath of Supremacy had denied him the year before.
In 1985, J. C. D. Clark depicts England before 1828 as a nation in which the vast majority of the people still believed in the divine right of kings, and the legitimacy of a hereditary nobility, and in the rights and privileges of the Anglican Church. In Clark’s interpretation, the system remained virtually intact until it suddenly collapsed in 1828, because Catholic emancipation undermined its central symbolic prop, the Anglican supremacy. He argues that the consequences were enormous: “The shattering of a whole social order. … What was lost at that point … was not merely a constitutional arrangement, but the intellectual ascendancy of a worldview, the cultural hegemony of the old elite.”
Clark’s interpretation has been widely debated in the scholarly literature, and almost every historian who has examined the issue has highlighted the substantial amount of continuity before and after the period of 1828 through 1832.
Eric J. Evans in 1996 emphasises that the political importance of emancipation was that it split the anti-reformers beyond repair and diminished their ability to block future reform laws, especially the great Reform Act of 1832. Paradoxically, Wellington’s success in forcing through emancipation led many Ultra-Tories to demand reform of Parliament after seeing that the votes of the rotten boroughs had given the government its majority. Thus, it was an ultra-Tory, George Spencer-Churchill, Marquess of Blandford, who in February 1830 introduced the first major reform bill, calling for the transfer of rotten borough seats to the counties and large towns, the disfranchisement of non-resident voters, the preventing of Crown officeholders from sitting in Parliament, the payment of a salary to MPs, and the general franchise for men who owned property. The ultras believed that a widely based electorate could be relied upon to rally around anti-Catholicism.
In Ireland, emancipation is generally regarded as having come too late to influence the Catholic-majority view of the union. After a delay of thirty years, an opportunity to integrate Catholics through their re-emerging propertied and professional classes as a minority within the United Kingdom may have passed. In 1830, O’Connell invites Protestants to join in a campaign to repeal the Act of Union and restore the Kingdom of Ireland under the Constitution of 1782. At the same, the terms under which he is able to secure the final measure of relief may have weakened his repeal campaign.
George Ensor, a leading Protestant member of the Catholic Association in Ulster, protests that while “relief” bought at the price of “casting” forty-shilling freeholders, both Catholic and Protestant, “into the abyss,” might allow a few Catholic barristers to attain a higher grade in their profession, and a few Catholic gentlemen to be returned to Parliament, the “indifference” demonstrated to parliamentary reform will prove “disastrous” for the country.
Seeking, perhaps, to rationalise the sacrifice of his freeholders, O’Connell writes privately in March 1829 that the new ten-pound franchise might actually “give more power to Catholics by concentrating it in more reliable and less democratically dangerous hands.” The Young IrelanderJohn Mitchel believes that the intent is to detach propertied Catholics from the increasingly agitated rural masses.
In a pattern that had been intensifying from the 1820s as landlords clear land to meet the growing livestock demand from England, tenants have been banding together to oppose evictions and to attack tithe and process servers.
seamus dubhghaill 