The common law was an important instrument in the extension of English state control over Ireland. By subjecting all inhabitants to a single legal code, it redistributed power from the Gaelic lordships and the territories of the great regional magnates to a centralised authority operating in the name of the king. Against this background, Paul Smith sets out to explore ‘some of the many different ways in which Irish Catholics engaged with and experienced the English common law system during the Restoration’ (1).

What follows, however, is a much looser and less focussed study than these opening words suggest. A first chapter based on the letters of Oliver Plunkett, archbishop of Armagh, and John Brenan, bishop of Waterford and later archbishop of Cashel, charts the two men’s attempts to ride out the dramatic shifts in religious policy that marked the reign of Charles II. However, the focus is not on the law, but on the relationships the two men tried to establish with successive viceroys. A second chapter deals with the political and historical writings of Archdeacon John Lynch and Bishop Nicholas French. Writing from the safety of exile, they offered a more combative account of the iniquities of the Restoration settlement. But they directed their criticism at the English parliament, or at figures like Clarendon, Ormond and Orrery, rather than at the institutions of the common law. A chapter on Gaelic poetry notes some passing mockery of English legal terminology, but nostalgia for the good old days of the Brehon laws is notably absent. The establishment of the court of claims in 1662 left Irish Catholic landowners with no choice but to engage in litigation under the new legal system. But Smith’s study of a sample of cases makes clear that the outcome was in many cases determined less by legal principles and procedures than by the intervention of the king or other powerful figures. The closest the book comes to meeting its declared aim of a study of Catholic engagement with the legal system, taken in isolation, is a final chapter on Catholic lawyers. But this is confined to case studies of three figures, adding little to what is already known from the work of Toby Barnard and Colm Kenny.

Two reasons help to explain this meagre harvest. The first is a tendency — despite a few dutiful comments on the importance of ethnic divisions — to assume that Irish Catholics as a body encountered the common law as a new, externally imposed system. The reality is that a Palesman like Oliver Plunkett would have regarded the common law as part of the civic culture into which he was born. So, the absence of comment on its dominance, as opposed to its abuse by hostile actors, is hardly surprising.

The second problem is one of chronology. Smith does not offer a justification for his choice of period. But in terms of the issues he is interested in, the Restoration era is both too late and too early. An analysis focussed on Gaelic Ireland in the late sixteenth and early seventeenth centuries might well turn up evidence of hostile or bewildered responses to a legal system imposed from without, cutting across strong personal ties and wiping out traditional entitlements. By the 1660s, on the other hand, Smith searches in vain for anything of the sort: the common law had become a fact of life, even for those hostile to the political establishment it served. At the same time, it was not yet supreme. Over and over again, in the sharp reversals of policy towards Catholics, in the proceedings of the court of claims, in the careers of individuals like the three lawyers Smith examines, outcomes depended, not on the impersonal mechanisms of the law, but on political patronage or royal favour. After 1688, on the other hand, use of the royal prerogative became politically unacceptable. Where once Catholic schools could be closed, or clergy banished, by a proclamation in the king’s name, it now became necessary to give such prohibitions the force of statute. It is at that stage, with the creation of what came to be known as the penal laws, that the fate of Irish Catholics came to be determined primarily by legal rules and procedures.