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The Irish courts of law, 1801–1914

Published online by Cambridge University Press:  28 July 2016

R.B. McDowell
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Extract

At the beginning of the nineteenth century there were six superior courts in Ireland—chancery, the three common law courts (king’s bench, common pleas and exchequer), the admiralty court and the prerogative court (an ecclesiastical court with jurisdiction over testamentary matters).Four of these courts were of medieval origin. The exchequer was probably in existence before the close of the twelfth century, the Irish chancery was founded early in the thirteenth century, the first Irish chancellor being appointed in 1244, and the antecedents of the courts of king’s bench and common pleas are to be found in the thirteenth century. The other two courts were comparatively modern. The court of prerogative and faculties based its rights to exercise jurisdiction on two sixteenth century acts and two seventeenth century patents, one of James I and one of Charles I. And though admiralty jurisdiction had been exercised in Ireland from medieval times, the Irish court of admiralty had been created by statute in 1784. From the court of chancery and the three common law courts there was an appeal to the court of error (known as the court of exchequer chamber) composed of the judges of the three common law courts, and in 1857 it was enacted that the court of exchequer chamber when hearing an appeal should consist of the judges of the two courts from which the appeal did not arise. From the admiralty court and from the prerogative court there was an appeal to delegates in chancery.

Type
Articles
Information
Irish Historical Studies , Volume 10 , Issue 40 , September 1957 , pp. 363 - 391
Copyright
Copyright © Irish Historical Studies Publications Ltd 1957

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References

1 There is of course an immense mass of material relating to Irish legal administration. Two modern works which the present writer has found of value are F. H. Newark, Notes on Irish legal history (1947), Ball, F.E., The judges in Ireland, 1221-1921, 2 vols (London, 1926)Google Scholar. A very detailed survey of the working of the Irish courts is given in the twenty-two reports of the Commission appointed to enquire into the duties, salaries and emoluments of the officers, clerks and ministers of justice in all temporal and ecclesiastical courts in Ireland (henceforth referred to as Courts enquiry), which appeared between 1817 and 1831. The following also contain much useful information: Wood, , Guide to the records deposited in the Public Record Office in Ireland (Dublin, 1919)Google Scholar, Griffith, M.C., ‘A short guide to the Public Record Office of Ireland’ in I.H.S., viii. 45–58 Google Scholar; L. F. Maxwell, A bibliography of Irish law from the earliest times; Howard, G.F., Exchequer and revenue of Ireland (2 vols, Dublin, 1776)Google Scholar; Smyth, C.J., Chronicle of the law officers of Ireland (London, 1839)Google Scholar.

2 Richardson, H.G. and Sayles, G.O., The Irish parliament in the middle ages (Philadelphia and London, 1952), pp. 21-6CrossRefGoogle Scholar.

3 28 Henry VIII, c. 19; 2 Eliz., c. 1; Liber mun. pub. Hib., pt. 11, pp. 79-80.

4 Stat. Ire., John-Hen. V, pp. 511-13; 2, 12, 13 James I, c. 2; Liber. mun. pub. Hib., pt. 11, pp. 221-2; 23-4 Geo. III, c. 14.

5 40 Geo. III, c. 39; 20 & 21 Vict., c. 6.

6 Report from the select committee appointed to inquire whether it is expedient to make any . . . provision for the more effective exercise of the functions of the house as court of appellant jurisdiction, . . . Minutes of evidence, pp. 113-5. H.C. 1856 (264), viii. 533-5.

7 Supreme court of judicature bill; copy of the resolutions of the Irish judges, H.C. 1873 (273), liv. 335.

8 D.N.B., 1931-40, p. 24.

9 This account of the judicial work of the privy council is based on papers in S.P.O.I., 6229 A v1.

10 During the eighteenth century 82 lawyers were placed on the Irish bench (i.e. became lord chancellor or a common law judge). Of these 63 (a few of whom were English born) practised at the Irish bar beforebeing placed on the bench, and 19 were Englishmen who came to Ireland on receiving a judicial appointment.

11 36 Geo. III, c. 26; 50 Geo. III, c. 31.

12 1 & 2 Geo. IV, c. 53.

13 2 & 3 Wm IV, c. 116; 40 & 41 Vict., c. 57; Judges’ salaries: a return, pp. 4-5, H.C. 1850 (525), xxiii. 378-9.

14 54 Geo. III, c. 95.

15 Hansard, 3, clx. 759-806, clxxxiii. 778-811; Lefroy, T., Memoir of Chief Justice Lefroy (Dublin, 1871), pp. 292–330 Google Scholar.

16 Courts inquiry, eighteenth report, H.C. 1829 (5), xiii.

17 All the judges of the supreme court were present at the meeting with the exception of the lord chancellor, Baron Dowse, who was ill, and Lawson and Morris, who were away (Irish Law Times, 20 May 1882; Dublin Express, 1 Aug. 1882; Freeman’s Journal, 5 Feb. 1897; Curran, J.A., Reminiscences (London, 1915), pp. 148-9)Google Scholar.

18 1 & 2 Geo. IV, c. 59.

19 Burrowes, W., Select speeches of the late Peter Burrowes (Dublin, 1850), pp. 107, 113Google Scholar.

20 6 Wm IV, c. 14; 1 Vict., c. 8.

21 20 & 21 Vict., c. 60.

22 35 & 36 Vict., c. 58.

23 12 & 13 Vict., c. 77; 21 & 22 Vict., c. 72; 29 & 30 Vict., c. 99.

24 20 & 21 Vict., c. 79.

25 33 & 34 Vict., c. 110.

26 19 & 20 Vict., c. 92.

27 30 & 31 Vict., c. 44.

28 40 & 41 Vict., c. 57; see also 45 & 46 Vict., c. 70. The admiralty court was to be merged with supreme court on thefirst occasion the office of judge of the court of admiralty was vacated after the passing of the judicature act. John FitzHenry Townshend, who was appointed judge of the admiralty court in 1867, held office until his death in 1893.

29 50 Vict., c. 6; 60 & 61 Vict., c. 66.

30 7 Edw. VII, c. 44.

31 44 & 45 Vict., c. 49; 3 Edw. VII, c. 37.

32 McDowell, R.B., Public opinion and government policy in Ireland 1801-46 (London, 1952), pp. 79–81 Google Scholar.

33 Commission of the peace (Ireland) return, p. 132, H.C. 1886 (174), liii. 548, and Magistrates (Ireland) return, p. 27, H.C. 1912-13 (396), lxix. 719.

34 27 Geo. III, c. 40; 36 Geo. III, c. 25.

35 14 & 15 Vict, c. 57; 21 & 22 Vict., c. 88; 40 & 41 Vict., c. 56.

36 54 Geo. III, c. 131; 55 Geo. III, c. 13; 3 Geo. IV, c.c. 103; 6 Wm IV, c. 13; 16 & 17 Vict., c. 60.

37 Professor Moody drew my attention to this memorandum which is to be found in P.R.O.I., S.P.O., Unregistered miscellaneous papers 1846, no. .85 (carton 1417).

38 Magistrates (Ireland): a return, H.C. 1860 (288), lvii. 879.

39 Report of the commission appointed by the lords commissioners of her majesty’s treasury . . . to enquire into the condition of the civil service in Ireland; . . . on resident magistrates, H.C. 1874 (923), xvi.

40 35 Geo. III, c. 36; 48 Geo. III, c. 140; 1 Vict., c. 25; 22 & 23 Vict, c. 52.

41 City and borough courts are described in great detail in the Report of the commissioners appointed to inquire into the municipal corporations in Ireland, H.C. 1835 (23-24, 27-28), xxvii-viii; 1836 (29), xxiv.

42 For the manor courts see Report from the select committee on manor courts, Ireland . . ., H.C. 1837 (494), xv.

43 25 Geo. III, c. 44; 27 Geo. III, c. 22: 7 Geo. IV, c. 41; 7 & 8 Geo. IV, c. 59.

44 Report from the select committee on manor courts, Ireland . . ., p. 69, H.C. 1837 (494), xv.

45 3 & 4 Vict., c. 108.

46 22 Vict., c. 14.

47 For the ecclesiastical courts see Courts enquiry, fourteenth report, H.C. (68), 1826, xvii; Nineteenth report, H.C. (311), 1830, xx; Twenty-first report, H.C. 1831 (739), x. Reportfrom the select committee appointed to inquire into the state of the prerogative and ecclesiastical courts in Ireland, H.C. 1837 (412), vi.

48 Report from the select committee appointed to enquire into the state of the prerogative and ecclesiastical courts in Ireland, p. 61, H.C. 1837 (412), vi. 209.

48a S.P.O.I., Council order book, 1861-8.

49 27 & 28 Vict., c. 54; 32 & 33 Vict., c. 42.

50 Correspondence between the treasury and the Irish government as to the remuneration of the attorney general and solicitor-general for Ireland, H.C. 1887 (26) and (336), lxvii. 379-393.

50a Appropriation accounts, 1887-8, p. 309, H.C. 1889 (18), liii.

51 The circular abolishing the office is given in the Irish Law Times, 28 Apr. 1883. See also Hansard, 3, cclxxviii. 608; cclxxix. 378.

52 Courts inquiry, sixteenth report, appendix, p. 67, H.C. 1826-7 (341), xi. 241; Crown solicitors (Ireland): return . . ., p. 1, H.C. 1842 (508), xxxviii. 263; County officers (Ireland): return, pp. 31-43, H.C. 1852-3 (116), xciv.

53 Estimates for the civil service for the year ending 31 Mar. 1888, p. 281, H.C. 1887 (53), liv. 297.

54 Courts inquiry, first report, p. 22, H.C. 1817 (9), x.

55 Courts inquiry, fifth report, p. 97, H.C. 1819 (5), xii.

56 These statistics are based on the evidence in the reports of the commission set up to inquire into the state of the Irish courts in 1815.

57 Hansard, xxix. 475, 790; xxxvii. 700, 1255.

58 Certified copy of the royal commission for examining into the state of the courts of justice in Ireland, H.C. 1814-15 (222), vii.

59 Report from the select committee appointed to inquire into the state of the prerogative and ecclesiastical courts in Ireland, p. 1, vi. 149.

60 Courts inquiry, fifth report, p. 35, xii. 39.

61 Courts inquiry, third report, appendix, p. 48, H.C. 1817 (487), xi. 220.

62 Courts inquiry, fifth report, pp. 37-8, H.C. 1819 (5), xii. 41-2.

63 Courts inquiry, sixth report, pp. 21-2, H.C. 1819 (6), xii. 307-8.

64 Liber mun. pub. Hib., pt Vii, p. 283; Courts inquiry, second report, pp. 21-6; app. pp. 70-4, H.C. 1817, xi.

65 Communication of the barons of the exchequer on the fourth report, so far as it relates to the court of exchequer, H.C. 1821 (401), xi. 25-7.

66 1 & 2 Geo. IV, c. 53.

67 5 & 6 Wm IV, c. 51.

68 13 & 14 Vict., c. 51.

69 Report of the commission appointed to inquire and report with a view to the revision of the officers of the superior courts of common law, H.C. 1842 (378), xxiii.

70 7 & 8 Vict., c. 107.

71 Hansard, 3, lxxvi. 1649-52, 1752-3, 1944-53.

72 13 Vict, c. 18.

73 30 & 31 Vict., c. 129.

74 4 Geo. IV, c. 61.

75 6 & 7 Wm IV, c. 74.

76 13 & 14 Vict., c. 89.

77 8 & 9 Vict., c. 115; 11 & 12 Vict., c. 132.

78 30 & 31 Vict., c. 129.

79 40 & 41 Vict., c. 57.

80 Report of the commissioners appointed to revise the Several laws under and by virtue of which moneys are now raised by grand jury presentment in Ireland, appendix, p. 49, H.C. 1842 (386), xxiv. 159; Pollock v. Harding (English reports, iv. 1300); 1 Geo. IV, c. 27.

81 40 & 41 Vict., c. 56.

82 7 & 8 Geo. IV, c. 68; 14 & 15 Vict., c. 93; 21 & 22 Vict., c. 100, Petty sessions clerks (Ireland), H.C. 1856 (12), liii. 503, and Petty sessions clerks (Ireland) (salaries), H.C. 1905 (115), lxv. 531.