Inheritance intraditional Irish law usedgavelkind, whereby an estate was divided equally among a dead man's sons. In contrast, Englishcommon law usedmale primogeniture, with the eldest son receiving the entire estate. The 1704 act enforced gavelkind for Catholics and primogeniture for Protestants.
Two separate bills "to prevent the further Growth of Popery" were introduced in theparliamentary session 1703–1704. One originated with theIrish Privy Council and was referred on 4 July 1703 to theAttorney-General for Ireland;[1] the other was introduced as heads of a bill in theIrish House of Commons on 28 September 1703 and sent to theLord Lieutenant on 19 November.[4] UnderPoynings' Law, both bills were transmitted to theEnglish Privy Council for approval.[1] Formally, one bill was vetoed and the other was returned to Dublin with amendments; a lack of surviving documentation makes it impossible to determine which of the two had which fate.[1] The approved bill was engrossed on 20 January, presented in the Commons on 14 February, sent to theIrish House of Lords on 25 February, and givenroyal assent on 4 March.[1]
SirToby Butler, the formerSolicitor General for Ireland, a Roman Catholic, made 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 likeStephen Rice also denounced the measure but to no avail.
Section 1 defined aspraemunire the encouragement or act ofapostasy from Protestantism to Catholicism. It also prohibited Catholics under 21 from going abroad without licence, to help enforce theEducation Act 1695's prohibition on Catholic education overseas.
Section 2 empowered judges to summon children to court to prove they had not gone abroad without licence under section 1.
Section 3 empowered theIrish Chancery to take property from a Catholic parent to pay for their Protestant child's education. If the child was an eldest son, up to one-third of the parent's property could be transferred to him, the parent retained only alife interest.
Section 4 prohibited Catholics from beinglegal guardians of Protestant children
Section 5 extended the existing prohibition on Protestants marrying Catholics[5] to include marriages abroad.
Section 6 prohibited Catholics from buying land or leasing it for more than 31 years.
Section 7 gave a Catholic acquiringtitle toreal property six months in which to enter intopossession of it, failing which it descended to the nearest Protestant relative.
Section 8 was a proviso to section 7, whereby a nearer Catholic relative could pre-empt the Protestant relative by conforming to Protestantism within the six-month window
Section 9 was a proviso to section 7, whereby the Protestant wife of a dispossessed Catholic remained entitled to her one-thirddower.
Section 10 mandated that inheritance from a Catholic would be bygavelkind, that is divided equally between all sons. If the deceased had no sons, the estate was likewise divided between his daughters, or the next closest kin.
Section 11 was a proviso to section 10 to allow provision for daughters from the estate before the residue was subdivided among the sons.
Section 12 was a proviso to section 10 to allow the eldest son to inherit the whole estate (by primogeniture) if he was a Protestant, or converted within three months of his father's death. Thus, the law had the effect of reducing the size and thus the influence of Roman Catholic landed estates, which was the act's ulterior motive.[2]
Section 13 mandated that inheritance from a Protestant would according to common law, that is primogeniture.
Section 14 provided that debts of Catholics be registered with theCourt of Exchequer, to ensure they were paid out of the estate before the application of gavelkind
Section 17 required that, within three months of appointment, any person appointed to a civil or military office must take the same oath and sacrament as in section 16.
Section 18 provided that failure to comply with sections 16 or 17 would vacate the office and void acts done by the official, who would be fined £500 and subject to civil penalties.
Section 19 provided for rolls of those subscribing to the oaths under section 15 to 17 be kept at theFour Courts. The surviving "convert roll" details are a valuableprimary source for historians of 18th-century Ireland.[8]
Section 20 empowered the Four Courts to administer the prescribed oaths
Section 21 allowed someone disabled under section 18 to be rehabilitated by subsequent conformity.
Section 22 allowed Irish people in England to take the equivalent oath and sacrament under the equivalent English laws (theTest Acts) and allowed those abroad elsewhere to do so when next in Ireland or England
Section 23 prohibited Catholics from moving toGalway orLimerick, and required those already living there to deposit bonds with the corporations as proof of their loyalty.
Section 24 required Catholics voting in elections for the Irish House of Commons to take oaths of allegiance and abjuration
Section 25 provided that anyadvowsons of the Church of Ireland owned by Catholics would vest inthe Crown
Section 27 declared that, for an assembly under section 26, the punishment for attending was afine of 10shillings, or publicwhipping in default; the punishment for hawking was a fine of 20 shillings bydistraint, ordebtor's prison in default
Charles Ivar McGrath says that while the Popery Act had "evident ... negative effects", specific research is lacking,[9] and that it was intended more to prevent an increase in Catholic landholding than encourage further decrease:[9] the Catholic share of land had already fallen from 60% before the1641 Rebellion to 22% before theWilliamite War to 14% in 1704.[10] The figure of 5% in 1776 given inArthur Young'sTour in Ireland is probably an underestimate,[9] although in 1778 only 1.5% of rent was paid to Catholics.[10]
Lord Redesdale, theLord Chancellor of Ireland, remarked in an 1805 case, based on a disputed inheritance of an estate originally purchased before and after 1704 by a Catholic:[11]
The purpose of [2 Anne c. 6 (I)] was to disable papists from purchasing lands in future; and to make all lands of which any papist was or should be seised in fee or in tail, of the nature of gavelkind, and, if not sold in his life-time for money, really and bonâ fide paid, to descend accordingly, notwithstanding any other disposition, but subject to debts and provision for daughters: and in case of conformity of the eldest son, the act reduced the father to the condition of tenant for life, and gave the inheritance to the conforming son, subject to provisions for younger children. The second act [8 Anne c. 3 (I)] is of a different kind. It was conceived that the first act was evaded in consequence of those who had a right to avail themselves of it not doing so. The second act, therefore, gives a right to any protestant to avail himself of the former act for his own benefit, and to file a bill for a discovery of all trusts or purchases made by, or on behalf of papists, contrary to the provisions of the former act, and to take the benefit of the same, as if made to or for such protestant discoverer. The result was, that although the first act made a purchase by a papist void, the second act made the purchase valid for the benefit of a protestant discoverer; and thus, that which was void as between the parties, was good for the benefit of a third person.
These acts had so embarrassed all the titles in the country, that if no other motive had occurred, it would have been a measure of policy to relax their severity: for no law is sufficient to restrain the desire of possessing landed property, and to evade these restrictive laws, contrivances were used, which perplexed almost every title, and made every protestant insecure in the possession of lands derived through a papist.
In 1866, Chancery Commissioners reported that the Law ofJudgments was much more complicated in Ireland than in England, and traced the difference back to the steps introduced in Ireland to enforce the 1704 act and ensure property was not being secretly transferred from Protestants to Catholics.[12]
The act was "explained and amended" by a 1709 act, 8 Anne c. 3 (I), which specified certain time limits left ambiguous by the original act, and closed some loopholes used by Catholics to remainbeneficial owners of nominally Protestant property.[13]
A 1719 act, 6 Geo. 1. c. 9 (I)[14] indemnified officials who had not thitherto subscribed to the oath required by the Popery Act. The time period for Dissenters subscribing to the oath was routinely extended, initially by an Indemnity Act at the start of each biennial parliamentary session.[15] Similar acts were passed by the British parliament, and after the union the UK parliament continued the practice.[16]
From the late 18th centuryRoman Catholic relief bills eased the Penal Laws, by explicit or implicit repeal and replacement. In 1772 Catholics were allowed to lease up to 50Irish acres ofbog-land for up to 61 years by the act 11 & 12 Geo. 3. c. 21 (I).[17] The 1704oath of allegiance for Catholics was replaced in 1774 by 13 & 14 Geo. 3. c. 35 (I).[18]Gardiner's Act, theLeases for Lives Act 1777 (17 & 18 Geo. 3. c. 49 (I))[19] (the Irish re-enactment of the BritishPapists Act 1778 (18 Geo. 3. c. 60)) implicitly repealed many other provisions of the 1704 act. Some were replaced with less onerous restrictions; for example, the maximum lease for Catholic tenants was increased from 31 years to 999 years.[20] The restrictions on inheritance and preference for a convert eldest son were abolished.[21] The sacramental test was repealed for Dissenters in 1780.[n 2][24] TheRoman Catholic Relief Act 1782 (21 & 22 Geo. 3. c. 24 (I)) repealed section 23 of the 1704 act.[25] Another act of 1782, 21 & 22 Geo. 3. c. 62 (I), allowed lay Catholics to be guardians of Protestants.[26] Most restrictions on intermarriage were removed by theRoman Catholic Relief Act 1792 (32 Geo. 3. c. 21 (I)).[27] Many Penal Laws were repealed in general terms by theRoman Catholic Relief Act 1793;[28] the sacramental test for Catholics was effectively replaced by the 1774 oath.[29][n 3]
TheRoman Catholic Relief Act 1829 (10 Geo. 4. c. 7)[30] abolished the declaration against transubstantiation[31] specified a new public oath for Catholics,[32][33] explicitly permitted Catholics to hold Irish civil or military offices other than Lord Lieutenant andLord Chancellor,[33] with the same oaths as required of non-Catholics (in addition to the new Catholic oath).[34]
The Criminal Law Commission's 1845 report on oaths said sections 1, 3, and 6 of the 1704 act had fallen into disuse and should be repealed.[35] TheReligious Disabilities Act 1846 (9 & 10 Vict. c. 59), passed in consequence of the committee's report, explicitly repealed provisions of sections 1, 3, and 4 of the 1704 act.[36]
^OrPopery Act 1703. Noshort title was assigned to the act before its repeal. Where aparliamentary session ran across more than one calendar year, an act's informal name sometimes uses the year in which it was granted royal assent, sometimes the year in which the parliamentary session began — in this case,Popery Act 1704 andPopery Act 1703 respectively.
^The 1780 act referred to "Protestants". A 1793 act, 33 Geo. 3. c. 51 (I),[22] clarified that the 1780 act only applied to Dissenters, not members of the established Church of Ireland. An 1832 act, theSacramental Test (Ireland) Act 1832 (2 & 3 Will. 4. c. 7), repealed the 1793 act and extended the 1780 act to all Protestants.[23]
^abcJohnston-Liik, Edith Mary (2006)."Introduction".MPs in Dublin: Companion to History of the Irish Parliament, 1692–1800. Ulster Historical Foundation. p. 5.ISBN978-1-903688-60-1.
^"Bills with subject of 411 'Protestant dissent'"Irish Legislation Database; Irish acts1 Geo. 2. c. 2 (I), 3 Geo. 2. c. 6 (I), 5 Geo. 2. c. 5 (I), 7 Geo. 2. c. 4 (I), 13 Geo. 2. c. 7 (I), 15 Geo. 2. c. 4 (I), 17 Geo. 2. c. 9 (I), 19 Geo. 2. c. 8 (I), 21 Geo. 2. c. 5 (I), 23 Geo. 2. c. 7 (I), 25 Geo. 2. c. 7 (I), 29 Geo. 2. c. 2 (I), 31 Geo. 2. c. 4 (I), 33 Geo. 2. c. 3 (I), 1 Geo. 3. c. 4 (I), 3 Geo. 3. c. 3 (I), 5 Geo. 3. c. 11 (I), 7 Geo. 3. c. 16 (I), 11 Geo. 3. c. 3 (I), 11 & 12 Geo. 3. c. 29 (I), 13 & 14 Geo. 3. c. 13 (I), 15 & 16 Geo. 3. c. 5 (I), 16 Geo. 3. c. 1 (I), 17 & 18 Geo. 3. c. 5 (I), 19 & 20 Geo. 3. c. 28 (I), 21 & 22 Geo. 3. c. 7 (I), 25 Geo. 3. c. 32 (I)
^"The Annual Indemnity Act".Abstract of the Corporation and Test Acts: More Particularly as to Such Parts of Them as Relate to the Imposition of the Sacramental Test : Also of Subsequent Acts and Clauses which Affect the Same, Including the Annual Indemnity Act. London: United Committee United Committee appointed to conduct the application of Protestant Dissenters for relief. 1828. pp. 13–15.
