Law and Religion in Ireland, 1700-1970 (Palgrave Modern Legal History)

This book focuses, from a legal perspective, on a series of events which make up some of the principal episodes in the legal history of religion in Ireland: the anti-Catholic penal laws of the late seventeenth and early eighteenth century; the shift towards the removal of disabilities from Catholics and dissenters; the dis-establishment of the Church of Ireland; and the place of religion, and the Catholic Church, under the Constitutions of 1922 and 1937. Kevin Costello is Associate Professor at the Sutherland School of Law, University College Dublin, Ireland. He has previously published Law and the Family in Ireland, 1800-1950 (Palgrave, 2017). Niamh Howlin is Associate Professor at the Sutherland School of Law, University College Dublin, Ireland. She has previously published Law and the Family in Ireland, 1800-1950 (Palgrave, 2017) Acknowledgments 6 Contents 8 Notes on Contributors 10 List of Tables 14 Chapter 1: The Legal History of Religion in Ireland 15 Chapter 2: The Penal Laws: Origins, Purpose, Enforcement and Impact 26 1 Introduction 26 2 Origins 27 3 Purpose 30 4 Enforcement 44 5 Impact 56 6 Conclusion 61 Chapter 3: To “Elude the Design and Intention” of the Penal Laws: Collusion and Discovery in Eighteenth-Century Ireland—A Case Study 62 1 Introduction 62 2 Land Purchases, Trusts and Statutes Staple, 1709–15 64 3 Death, Executorship and Bequests 68 4 Legal Challenges 72 5 Collusive Discovery and a Letter of Complaint 80 Appendix 1: Alcock Family Tree 88 Chapter 4: Repealing the Penal Laws, 1760–95 89 1 Introduction 89 2 The First Attempts, 1760–74 91 3 Breakthrough, 1778–82 104 4 Challenging the Political Foundations of Protestant Ascendancy, 1783–95 112 5 Conclusion 119 Chapter 5: “Inoperative But Insulting:” Residues of the Penal Laws, 1829–1920 120 1 Introduction 120 2 The Restrictions on Catholic Orders 121 2.1 Landholding and the Laws Against Religious Orders 126 3 Ecclesiastical Titles and the Catholic Relief Act 1829 127 3.1 The Ecclesiastical Titles Code in Practice, 1829–1920 130 4 Exercising “Rites or Ceremonies” or “Wearing the Habits of the Order” 133 4.1 Wearing Any of the “Habits of His Order” 134 4.2 Exercising Any of the “Rites or Ceremonies of the Roman Catholic Religion” 136 5 The Catholic Relief Act 1829 and the Law of Charities, 1852 to 1916 137 5.1 Section 29 and the Law of Rating 141 6 The Abolition of the Penal Code of 1829 143 7 Conclusion 145 Chapter 6: The Legal and Constitutional Organization of the Catholic Church in Nineteenth-Century Ireland 147 1 Introduction 147 2 The Church and the State 152 3 Disestablishment 160 4 The Synod of Thurles 161 5 Conclusion 165 Chapter 7: Irish Presbyterians and the Quest for Toleration, c. 1692–1733 167 1 Introduction 167 2 Legal Situation and Presbyterian Grievances 169 3 Presbyterian Attempts to Gain Religious Toleration 172 4 Personnel and Efficacy 188 5 Conclusion 193 Chapter 8: “I Am Friends Wt You & Do Entertain No Malice”: Discord, Disputes and Defamation in Ulster Presbyterian Church Courts, c. 1700–1838 194 1 Introduction 194 2 The Process of Church Discipline 201 3 Discord and Disputes 204 4 Defamation 212 5 Conclusion 218 Chapter 9: Church Briefs and Charitable Relief: Reparations for Two Early Eighteenth Century Fire-Damaged Ulster Towns 219 1 Introduction 219 2 The Fire at Enniskillen, 1705 221 3 The Fire at Lisburn, 1707 228 4 Other Fires and Charitable Briefs 229 5 The Effectiveness of Charitable Briefs 235 6 Fire Legislation in England and Ireland 240 Chapter 10: The Disestablishment of the Church of Ireland 246 1 Introduction 246 2 The Meaning of Disestablishment 247 3 Legislating for Disestablishment 258 4 Reactions to Disestablishment 262 Chapter 11: Disendowment Under the Irish Church Act 1869 264 1 Introduction 264 2 Church of Ireland Property in 1869 267 3 Homage to the Draftsman 277 4 Automatic Effects of the Irish Church Act 1869 278 5 The Commissioners as Clearing-House 280 6 The Commissioners as a Court 288 7 Conclusion 292 Chapter 12: The Constitution of the Church of Ireland in Action: Ritualist Litigation in a Disestablished Church, 1871–1937 295 1 Introduction 295 2 The Legal Framework 297 2.1 The Constitution of the Church of Ireland and the Canons of 1871 297 2.2 The Courts 301 2.2.1 Structure and Constitution of the Courts 301 2.2.2 The Rules of Court 302 2.2.3 The Judges 303 2.2.4 Chancellors 304 2.2.5 Evidence 305 2.2.6 Jurisprudence 306 3 The Liturgical Litigation 307 3.1 All Saints’, Grangegorman 311 3.2 St. Bartholomew’s Ball’s Bridge 316 3.2.1 Grant v. Smith & Others 316 3.2.2 Chamney & Others v. Simpson 319 3.3 All Saints’ Blackrock 322 3.4 St. John’s Sandymount 324 4 Conclusion 329 Chapter 13: Religion and the Constitution of the Irish Free State 332 1 Introduction 332 2 The Constitution Committee 334 3 Alfred O’Rahilly and Draft C 335 4 Safeguards for a Religious Minority 339 5 The Evolution of the Constitutional Provisions on Freedom of Conscience and Religion 341 6 Additional References to Religion During the Drafting of the 1922 Constitution 345 7 The Catholic Church and the Enactment of the 1922 Constitution 347 8 The Catholic Church and the Drafting of the 1922 Constitution 351 9 The Emergence of a Secular Constitution 353 10 The Reference to God in the Preamble of the Constituent Act 354 11 Conclusion 356 Chapter 14: Article 44.1 and the “Special Position” of the Catholic Church in the Irish Constitution, 1937–1972 362 1 Introduction 362 2 Drafting Article 44.1 363 3 The Drive for Amendment in the 1940s and 1950s 366 3.1 Maria Duce 366 3.2 Westmeath County Council 369 3.3 The Liberal Ethic Debate 370 4 Judicial Developments 372 5 Aftermath to 1950 and Tuairim 376 6 The Turning Point: 1965 to 1967 379 7 The Abolition Debate 1969 to 1972 381 8 The Fifth Amendment 384 9 Conclusion 388 Index 390