‘The criminal law of Ireland is the same as that of England,’ observed Arthur Young towards the end of the 1770s, ‘but the execution of it is so different as scarcely to be known.’ He continued: ‘another circumstance, which has the effect of screening all sorts of offenders, is men of fortune protecting them, and making an interest for their acquittal, which is attended with a variety of evil consequences.’ De Latocnaye remarked that:
There are … arrangements for facilitating the procuring of justice for the poor, but these means cannot be employed decently except by the man who has nothing at all. It is difficult for the poor pleader to bring his cause to the ear of a judge; nevertheless, there are examples of poor men obtaining justice, and quickly, but in the main these are cases where rich men have taken their cause and made it their own.
There were other, less formal, ways of settling small local disputes, varying from courts of conscience in the cities to parishes in areas where the Established Church was strong or, as the session books record, to the Kirk Sessions in Ulster, where the Presbyterian Church has always maintained jurisdiction over its adherents.
Moreover, maintenance was not the only medieval custom extant, for the popular magistrate Sir William Richardson of Augher Castle, Co. Tyrone, had devised a system of trial by combat: sturdy disputants who appealed to him in his magisterial capacity were armed with cudgels and dispatched to the back yard of the castle to fight it out! Maria Edgeworth summed up the situation in Castle Rackrent: ‘"I’ll have the law on you, so I will" is the saying of an Englishman who expects justice. "I’ll have you before his honour" is the threat of an Irishman who hopes for partiality.’
In 1787, when lawlessness was increasing and the calibre of the magistracy was giving increasing cause for alarm, 27 Geo. III, c. 40, attempted to improve the administration of justice by authorising the Lord Lieutenant to appoint a barrister of at least six years’ experience to assist the JPs in disturbed areas.
A JP was expected to supervise local law-enforcement officials such as a constable and the watch. He was to have a salary not in excess of £300 p.a. and to be debarred from sitting in parliament. Nine years later, in 1796, 36 Geo. III, c. 25, allowed the Lord Lieutenant to appoint a legally trained resident magistrate in every county.217
The state of Irish justice throughout the century was deplorable, from the viewpoint of both equity and efficiency. This was partly due to the fact that, like English justice, it was based on trial by jury: a system that can only operate successfully with the co-operation and consent of the majority of the nation. In Ireland it never had this. Dr John Hotham, Bishop of Clogher, commented in 1777 that ‘I believe there is no country in the world where real justice is so seldom done by the determination of a jury.’
A few years later R. L. Edgeworth decided to take up residence permanently in Ireland, and undertook his duties as a landlord and a magistrate most seriously. He was greatly concerned at the casual attitude evinced in the taking of oaths – ‘that great bond of civil society, which rests on religion’ – and endeavoured to explain to the witnesses the perils of perjury. Interestingly, perjury was a crime for which only the Irish were transported to New South Wales in the early days of the colony.