Butler, Sir Theobald (Toby) (c.1650–1721), lawyer, was the second of the five sons of James Butler (d. 1682) of Boytonrath, Co. Tipperary, and later of Shanagollen, Co. Clare, and his wife, Mary (d. a.1684), a daughter of James and Ellen Butler of Kilmoyler, Co. Tipperary. The family were descendants of Piers Butler (qv) (c.1521–1579), second son of James Butler, 10th Baron Dunboyne, and his wife, Joan, a daughter of Piers Butler (qv), 8th earl of Ormond. The Butlers of Boytonrath fought on the confederate side during the wars of the 1640s and 1650s. Sir Toby's grandfather James Butler was a captain in Dunboyne's regiment of foot, for which he enlisted 200 men from the Boytonrath estate in 1641. He was outlawed in November 1642 and, ten years later, the Cromwellian high court of justice issued a warrant for his arrest on charges of high treason. His trial took place at the Co. Tipperary assizes before the Cromwellian judge John Cook (qv). In questionable legal circumstances, he was convicted for murders committed by soldiers under his command. He was executed outside the courthouse in Clonmel on 10 May 1653. The estate at Boytonrath was confiscated and the family were transplanted to Co. Clare, where they acquired 300 acres of land at Shanagollen in 1656, formerly the property of forfeiting proprietors Richard and Hugh O'Grady.
Intent upon a legal career, Toby Butler of Shanagollen was admitted to the Inner Temple, London, in September 1671 and to King's Inns, Dublin, in June 1676. Then resident at St Nicholas Street in Dublin, his name first appeared as counsel on bills lodged in the Irish chancery court in November 1677, and his private practice expanded rapidly over the course of the ensuing decade. The legal affairs of various branches of the O'Brien family of Thomond, Inchiquin and Dromoland in Co. Clare provided ample casework for many lawyers from Munster, and Butler was no exception. Although only recently qualified, he was listed as counsel on a chancery case O'Shaughnessy v Lord Clare in 1678 and, from August 1677, his name appeared frequently as witness to the many mortgages and land transactions relating to the O'Brien family estates in Co. Clare. During the 1680s he acted as counsel in chancery both for Henry O'Brien, earl of Thomond, and for the protestant Sir Donough O'Brien of Dromoland.
In 1685 Butler was appointed deputy seneschal of the Ormond palatinate court in Co. Tipperary. He became recorder of Clonmel in 1688, under the new charter granted to the town by James II (qv). By the late 1680s he was one of the leading catholic lawyers in the Irish chancery court. He was appointed third serjeant in March 1689 and later that month, at the Galway assizes, he was engaged for the crown in a case involving Sir Thomas Southwell (qv) from Co. Limerick. Southwell was arrested and charged with high treason when he and a group of 200 protestants attempted to join Williamite supporters in Co. Sligo.
In May 1689 Butler represented the borough of Ennis, Co. Clare, in James II's Irish parliament and the following July he was appointed Irish solicitor general. In October 1690, given the unsettled situation in Ireland, Sir Donough O'Brien, fearing for the safety of his sons, sought Butler's advice as to whether he should send them away, commenting that ‘matters here will not be ended without a sharper dispute than has been hitherto and it may be feared that many innocents may fall by the hands of people so enraged and incensed against one another’ (Inchiquin MSS, 26).
Butler played a prominent part in negotiating the military and civil articles that eventually constituted the treaty of Limerick, of which he was a signatory on 3 October 1691. Benefiting under the terms of the articles of Limerick, he continued to practise at the bar and he remained a distinguished member of the legal profession until almost the time of his death in 1721. William III's (qv) appointee as solicitor general, Sir Richard Levinge (qv), had been a fellow student with Butler at the Inner Temple during the 1670s (both had been admitted to the Inner Temple in the same week in September 1671), and the two men appeared as counsel in the Irish chancery court at the beginning of Michaelmas term 1692. During the 1690s Butler continued to practise at the Ormond palatinate court in Co. Tipperary, with Lord Longford (qv) complaining in 1692 that tenants on the Ormond estate ‘by the influence and advice of Sir Toby Butler (who by the way is too much countenanced by Sir John Meade (qv) in the Palatinate Court) are so buoyed up, that my Lord Duke's affairs are much interrupted and embarrassed by it’ (‘Letters of Lord Longford and others on Irish affairs’, 108).
At various times throughout the 1690s, Sir Toby represented in chancery such notable personages as Thomas Nugent, Baron Riverston (qv), former chief justice of the king's bench, and Sir James Cotter (qv), a prominent catholic Jacobite from Co. Cork, as well as Cotter's neighbours Pierce and David Nagle, brothers of the former Irish attorney general Sir Richard Nagle (qv), by then resident at the exiled court in St Germain. On a number of occasions in chancery during the 1690s, he also defended the legal interests of the protestant Joseph Damer (qv), an agent of the educational benefactor Erasmus Smith (qv). In 1704, when the first Popery Bill was introduced, violating the conditions of the treaty of Limerick, Butler and fellow catholic lawyers Sir Stephen Rice (qv) and Edmund Malone came before the bar of the Irish house of commons to petition against the severity of the proposed legislation. He continued to act as legal adviser to Sir Donough O'Brien until the latter's death in 1717, at which time Henry O'Brien, Sir Donough's son and executor of his will, acknowledged the receipt of various deeds and papers from Butler.
A popular figure in the legal profession, Butler had considerable social attributes. Extrovert and jovial, he was a close friend of Jonathan Swift (qv). Many anecdotes are recounted about his reputed carelessness in dress and his propensity for claret. On the Connacht circuit, when a judge of questionable moral standards commented that his ruffles appeared rather soiled, Butler displayed his hands to the judge and quickly retorted: ‘Oh yes, but you perceive, my lord, that my hands are clean’ (Oliver J. Burke, Anecdotes, 62). In 1693, when he accused a certain Nicholas Fitzgerald of attempting to assassinate him, it was reported in the Dublin Intelligencer that Fitzgerald strongly refuted the claim and instead maintained that Butler was the aggressor, being hot-headed ‘after a whole nights debauch in the London Tavern in Waterford’ (MacLysaght, 91).
By various means, the Butler family succeeded in retaining substantial lands in various counties in Ireland. They obtained a fee farm grant of Boytonrath from the lst duke of Ormond (qv) during the early restoration period, which was renewed in 1674 and 1681. Although Butler benefited from the articles of Limerick, it is not certain if the family retained ownership of the Boytonrath estate after the Williamite confiscations of the 1690s. In 1684 lands at Doon, in Co. Clare, were leased to Butler's brother James, the same lease being taken over by Butler in 1703. In 1688 he extended the family property with the purchase of additional lands at Carrowkeah and, in 1694, he acquired an estate at Knockgrafton, Co. Tipperary, from the 2nd duke of Ormond (qv). During the early years of the eighteenth century, aware of the impending Popery Bill, Butler conveyed his lands to a protestant friend to hold in trust. In 1720, a protestant ‘discoverer’, John Brennan, filed a bill in chancery claiming land at Taggart, Co. Dublin, which Butler had given in trust to a protestant lawyer. Although Brennan obtained a chancery decree putting him in possession of these lands, Butler died in March 1721 before the decree was implemented. He was buried at St James's churchyard in Dublin beneath a monument erected by his son, which was simply inscribed in Latin ‘to the best of fathers’.
Butler married Margaret Roche (d. 1735), a daughter of Dominick Roche, 1st Viscount Cahiravilla. In 1708 their eldest son, James, of Castlekeale and Cahirbane, Co. Clare, married Joan Butler, daughter of the 7th Baron Cahir. James's opportune conversion to the established church in 1714 enabled him to retain his patrimony and secure the greater part of the estates acquired by Butler during his professional career. James survived his father by less than a year, his death occurring in January 1722. James and his wife had three children, a daughter, Frances (b. 1693), Theobald (1715–35) of Cahirbane, Co. Clare, and James of Castlekeale, Co. Tipperary, high sheriff of Co. Clare in 1743 and ancestor of the Butlers of Ballyline.
Toby Butler was survived by his elder brother, James of Doon, Co. Clare (1648/9–1726). James Butler of Doon, who entered Trinity College, Cambridge, as a student in October 1662, represented Co. Tipperary in James II's parliament of 1689. He served as a captain in the Jacobite army and fought at the battle of the Boyne and at Aughrim and was present at the siege of Limerick. Although his brother's lands were subsequently confiscated, Toby Butler succeeded in obtaining a grant of his brother's attainted property, thus ensuring the survival of the Doon and Bunahow branches of the family in Co. Clare.