There were the four courts – Chancery, King’s Bench (Criminal), Common Pleas (Civil), and the Exchequer (Financial) – and the Prerogative Court, from which there was an appeal to the Court of Delegates in Chancery, and until 1715 there was the separate jurisdiction of the Ormonde Palatinate of Tipperary, which vanished with the attainder of the 2nd Duke. There was also a Court of Admiralty which, until 1784, was subordinate to the English Court of Admiralty.
The three courts, King’s Bench, Common Pleas and Exchequer, each had a chief judge and two puisne judges (three after 1784), making a total of nine (12); there were also the Chancery judges, the Chancellor, the Master of the Rolls and the Judge of the Prerogative Court. There was, however, a genuine shortage of judges to go on the five assize circuits.
This led to the custom of commissioning the Prime Serjeant, Attorney General, Solicitor General and some of the senior King’s Counsel as assize judges. As confirmed by the Declaratory Act of 1719, 6 Geo. I, c. 5 (GB), the British House of Lords remained the final court for Irish appeals until 1783, when the Renunciation Act, 23 Geo. III, c. 28 (GB), finally restored appellate jurisdiction to the Irish House of Lords.
Following the appointment of Primate Boulter in 1724 there was a very firm policy of keeping a majority of the principal appointments in all the great departments of church and state in the hands of men brought over from England in order to form a natural support for the administration. Between the resignation of Alan Brodrick (0237) in 1725 and the appointment of John FitzGibbon (0749) in 1789, the Lord Chancellor was invariably an Englishman, although he could have had a previous career in Ireland, like Lord Chancellor Bowes (0196).
‘But I hope it will be a point still kept up,’ wrote Boulter in 1726, ‘to have two English chiefs amongst the judges.’ Remnants of this idea survived as late as 1767, when Lord Townshend tried to persuade the British government to appoint an Irishman to the woolsack. The British Lord Chancellor, Lord Camden, counselled the cabinet to reconsider his request, emphasising that:
the Chancellor, Chief Baron and Chief Justice are called to the Council in Ireland, in the quality of statesmen, and that the Council in that country is an assembly of equal importance with either of the branches of the legislature. If the Lord Lieutenant is surrounded with Irish only filling these offices at the board he is subject to be over-ruled in every quarter by the great chiefs of the law, in which case I doubt he must submit …
It was therefore dangerous as well as expensive patronage, for, as Camden pointed out: ‘the highest post in the law could be given to one member only of the House of Commons (for only one can have it).’ The permanent residence of the viceroy after 1767 and its administrative consequences combined with increasing political awareness and activity to end the custom of ‘an helpless and at best a second-rate stranger coming here from Westminster Hall’, while the first-rate abilities of the foremost Irish lawyers ensured their appointment as the great places in the law were vacated. Fitzgibbon’s (0749) appointment completed the gradual resumption of all the great non-sinecure positions in the law by Irishmen.
The principal law officer was the Lord Chancellor, whose salary depended on various fees, such as half the fee for the issue of each original writ and £3,000 a year for his parliamentary duties in the House of Lords, over which he presided. Under him there were the Chief Justices of the King’s Bench and Common Pleas and the Chief Baron of the Exchequer, with their puisne judges or barons.
The Chief Justice of Common Pleas and the Chief Baron of the Exchequer each received a salary of £1,000 a year; their puisne judges or barons received £800. The Chief Justice of King’s Bench and his puisne judges or barons received, respectively, slightly more. King’s Bench was much the more onerous of the two chief judgeships – earlier in the century Archbishop Boulter referred to Common Pleas as ‘almost a sinecure’.
There were also courts attached to corporations of major towns, usually presided over by the recorder, the mayor or an alderman, and much of their business was sorting out urban problems and disagreements. Similarly some manors had been established with the right to hold courts leet or courts baron. Where the tenants were part of a manor with a grant of manorial jurisdiction, their disputes could be heard and settled in the manor court.
Eighteenth-century leases often contained a variety of feudal obligations. Among these was suit to court, which required the tenant to attend the landlord’s court ‘as often as he or they shall be legally summoned … and shall or will pay at the same the usual fees of leet-money or head-silver’.
Some estates had a franchisal jurisdiction which allowed the landlord or his representative to hold a court leet to try minor criminal cases occurring on the manor. The court baron heard civil pleas involving cases of not more than 40 shillings. Very often, particularly in Ulster, the two jurisdictions were blended together. A court of record had wider powers, but was less common. Its jurisdiction, which was much more rarely granted, extended to disputes of up to £100.
Manor courts offered a cheap and speedy means of resolving petty disputes, usually over such matters as the upkeep of fences and ditches, trespass, petty theft and similar causes of friction. They continued into the nineteenth century, during which they gradually declined, and were finally abolished in 1859. An inquiry into their operation was held in 1837: at that time there were about 200 manor courts in operation. Among those giving evidence to this inquiry was the seneschal, or presiding official, of three courts in West Cork. He explained their utility and their function:
The people are invariably pleased with being able to tell their story in Irish and to address the jury through me and to tell their story as they like themselves. The jury are conversant with their little manners, customs and bargains much better than gentlemen and all that; I do think that many of them would come to a better and fairer decision than almost any magistrate, at least more satisfactory to the parties.
Other medieval remnants were referred to in the statutes, the most common being ‘benefit of clergy’, for instance in 2 Anne, c. 12. This dates back to the medieval antagonism that periodically existed between church and state. The church claimed the right to try accused clergy, and clergy were widely defined; consequently almost anybody who could read and was therefore capable of being a priest could claim it and escape capital punishment. It was gradually rescinded during the eighteenth century and finally removed from the statute book in the nineteenth century.
Another anachronism was ‘damage clear’, which was a fee formerly paid in the Court of Common Pleas, King’s Bench and Exchequer in cases where damages were recovered; it was abolished in England in 1665. Replevin, which figures in a number of statutes, is the provisional recovery of confiscated goods and chattels pending the outcome of trial and judgment. Mortmain refers to lands in the hands of an institution, usually the church.
Eighteenth-century Irish society was litigious, and consequently ‘the disproportion of the salaries of the Bench with the profits of the Bar, are causes that the young lawyers of ability attach themselves to parties in parliament, instead of looking directly to the notice of the crown.’ In 1781 judicial salaries were increased, and they could be augmented in various ways – for instance, the Chief Baron and Barons of the Exchequer were entitled to fees on approving the public accounts.
Nevertheless, the judges’ remuneration remained considerably below the profits which could be made at the Bar. The Prime Serjeant, Attorney General and Solicitor General’s salaries were largely made up from various fees, therefore it is very difficult to calculate them accurately. During the period 1763–84, when W. Gerard Hamilton (0948) held the office of Chancellor of the Exchequer as a sinecure, the Attorney General was largely responsible for the duties of this office. The king, while interested in Irish legal appointments, was generally willing to accept the nominations of the Lord Lieutenant, if approved by the British Chancellor and the cabinet.
Straightforward cases could be heard in the Court of Petty Sessions presided over by a single Justice of the Peace. Two JPs sitting together had a wider jurisdiction, while more complex cases were referred to the Courts of Quarter Sessions, which could try certain felonies. JPs were appointed by the Lord Chancellor except in corporate boroughs, where the corporation had the right under their charter of making such appointments. They usually chose the mayor, an alderman or similar officials.
The number of JPs was theoretically large – in 1760 more than 2,000 were listed, with the qualification that ‘probably they are not all living.’ To be a JP was an honour, but to exercise its function could be burdensome. It has been estimated that there were about 3,000 JPs at the end of the century who could administer minor jurisdiction in the Courts of Petty and Quarter Sessions, but throughout the country there were probably not more than 500 active magistrates. It was an unpaid honour, and the JPs might or might not have any legal training. Under these circumstances it was inevitable that efficiency and equity varied from place to place and time to time.