Theobald Butler (solicitor general)

Family

He was born at Boytonrath, County Tipperary, a younger son of James and Mary Butler. The various branches of the Butler dynasty were much intermarried: James belonged to the branch of the family which was headed by the Baron Dunboyne, while Mary was probably a granddaughter of Walter Butler, 11th Earl of Ormonde. In the turmoil following the Irish Rebellion of 1641 the family temporarily lost possession of Boytonrath, and settled at Ballyline near Ennis in County Clare, where Toby grew up.

Barrister

He entered the Inner Temple in 1671, and was called to the Irish Bar in 1676. He practiced at first on the Connaught Circuit, but later settled in Dublin, where he spent the rest of his life. His principal estate was at Saggart in County Dublin; he also had a town house at Nicholas Street in Dublin city.

He was described as an "acute and artful lawyer" and one of the best advocates of his age. He was famous for his wit. After the Glorious Revolution, according to a well-known story, a judge of questionable political loyalties said that Butler's shirt cuffs were dirty; Butler silenced him with the retort: but my hands are clean. Even by the standards of the Irish Bar, he was an exceptionally heavy drinker: another well-known story relates that he accepted a plea from the Court not to drink wine until he had finished his argument; but later admitted that he had cheated by eating bread soaked in wine. He was a well-known "character" in the taverns of Dublin, especially in the rather unsavoury district called "Hell", adjoining Christ Church Cathedral. He could be quarrelsome when drunk, and in 1693 was reprimanded for assaulting another barrister, Nicholas Fitzgerald.

Politician

Following the landing of King James II at Kinsale in March 1689, Butler, who was loyal to James and devoutly Roman Catholic, became for a short time a figure of political importance. He sat in the Patriot Parliament as Member for Ennis, and was knighted. He was briefly Third Serjeant and Solicitor General, Recorder of Clonmel and a Commissioner of the Revenue, and he sat on a Commission to examine the validity of Royal Charters.

Treaty of Limerick

After the downfall of James II's cause, Butler played a key role in drawing up the civil articles of the Treaty of Limerick, which were intended as a permanent solution of Ireland's political state; he was assisted by two other prominent Catholic barristers, John Brown and Garrett Dillon. While he was criticised for his alleged lack of attention to points of detail, in fact the terms were remarkably generous to the defeated side, and are a tribute to his political skills. Catholic landowners (and those Protestants who had supported the Jacobite cause) who declared their loyalty to King William III were not to suffer any penalties, and would retain their lands and the right to keep and bear arms. Unfortunately for the Catholic landowners, it quickly became clear that the Parliament of Ireland did not intend to honour the Treaty.

After the Treaty

Butler returned to his practice at the Bar: but whether he was able to continue in practice after 1700 is unclear, since the new Penal Laws barred Catholics from the legal profession. It is just possible that he converted to Protestantism: Jonathan Swift, the Anglican Dean of St. Patrick's Cathedral, Dublin, and a friend of Butler, later said that Butler was "one of his flock" at St Patrick's Cathedral. It became increasingly common for well-to-do Catholics, (often known by the pejorative term "Castle Catholics") in order to safeguard their property, to conform outwardly to the Church of Ireland. Against that, Butler's speech to the Commons in 1703 is that of an open and passionate Roman Catholic (although his eldest son James did conform to the Established Church).

While his loyalty to King James II was not in doubt, he never seems to have contemplated joining the King in exile, as his colleague Garrett Dillon did, nor was any pressure put on him to do so. He was no doubt protected by his great popularity, and by the fact that the Butlers were still a powerful clan; the Ormonde Butlers, the senior branch of the family, had safeguarded their position by supporting the Glorious Revolution.

Popery Act

As the 1690s drew to a close, the legal position of Roman Catholics steadily worsened, and in 1703 a Bill "to prevent the further growth of Popery" was introduced whereby when a Catholic landowner died his sons would share the land equally, unless one of them became a Protestant, in which case he would inherit the whole estate. Butler as a (presumed) Catholic was now ineligible to sit in the House of Commons, but he was permitted to make an address from the bar of the House on February 22. His speech was justly celebrated for its eloquence:

Is this not against the laws of God and man? Against the rules of reason and justice by which all men ought to be governed? .... For God's sake gentlemen, will you consider whether this is according to the golden rule, to do as you would be done by? ... surely you will not, nay you cannot, take from us our birthrights.

He repeated his plea to the House of Lords a few days later, but both Houses of Parliament, entirely unmoved, duly passed the Popery Act.

Later years

As a known Catholic landowner, Butler was now liable to harassment by informers or "discoverers" who would bring collusive lawsuits to challenge the landowner's title to his estates. Sir Toby took the common precaution of conveying his lands to Protestant friends in trust for his sons; his eldest son's public adherence to the Church of Ireland was another safeguard, and much of the property remained in the family. During his later years he was troubled by a lawsuit over certain lands in County Galway, which was brought against him by Penelope, Lady Prendergast, widow of Sir Thomas Prendergast; the case went on for 40 years, long after Sir Toby's death.

Death and reputation

He died in March 1720 and was buried in the churchyard of St James' Church in Dublin city. His burial in a Protestant churchyard may be a tribute to his universal popularity, or it may be evidence that he did occasionally attend Church of Ireland services. His memorial, which still exists, and was restored by his descendants in the 1870s, has a Latin inscription by his eldest son James praising "the best of fathers".

This high opinion of Butler seems to have been generally shared: Jonathan Swift called him a man who was "universally beloved".

Marriage and children

He married Margaret Roche, daughter of Dominick Roche, Mayor of Limerick, on whom James II during his time in Ireland conferred the titles Viscount Cahiravahilla and Baron Tarbert. They had at least five sons- James, John (the owner of Ballymount House), Theobald, Jordan and Henry- and a daughter Frances, who married her cousin Thomas Butler, 6th Baron Cahir.