At our latest ‘Parliaments, Politics and People’ Seminar of 2016, Dr Coleman Dennehy (University College, Dublin) spoke on ‘Dublin, Westminster, and appellate jurisdiction in early modern Ireland’. Here he discusses his paper…
The history of appellate jurisdiction in Ireland, although it was a process that generally affected few lives at the time or since, was marked by a considerable break-down in relations between parliament in Ireland and its counterpart in Westminster. Mention of the process in most historical accounts of the period are related to certain cases where authority to hear cases was disputed, such Ward v Meath or Derry v Londonderry Society. The final one, Annesley v Sherlock, resulted in the 1720 declaratory act and the removal of any competency in appellate law from the Dublin House of Lords to Westminster along with a firm statement by the imperial parliament concerning their right to legislate on behalf of Ireland. Although appellate jurisdiction now lay solely with Westminster, since the middle ages there had been many examples of a shared judicial authority between the Irish and English parliaments that could continue to co-exist as long as neither parliament was willing to hear cases that had already been heard by the other.
As is well known to administrative and legal historians, our capacity to conduct research into the history of law in Ireland in the medieval or early modern periods is much hampered by damage done to our various sources. This ranges from the unintentional fires and poor conditions in which documents were housed to the intentional damage to documents, their removal by out-going office-holders, or the artillery bombardment of the Public Record Office in summer 1922. Thus, for those of us interested in appellate jurisdiction and the originating hearings and evidence, the records of many of the Irish courts are disappointingly sparse.
One such source that has survived, due to its printing and in-court distribution in relatively large numbers, is the printed case. The printed case was essentially a history of the case up to the point of appeal in the House of Lords at Westminster. It was usually four pages long, roughly a little larger than A3. Contained therein were the names of all of the appellants and respondents, the detail on the disputed estates (cases could sometimes revolve around other issues, but it was usually property), the marriage or other arrangements that might have helped bring about the dispute, the history of the case as it proceeded through the courts, followed by firm reasons, reiterating points made earlier in the document, why the case of this litigant should be successful. This was followed by the names of legal counsel attending the litigant for whom the case was written up.
Although the period of my current project extends from 1600 to 1730, the printed cases only become regular (and virtually essential to a successful outcome) after 1692. Taken as a mass, they can reveal much about the process, the procedures, and the outcomes of cases that would otherwise be lost to legal historians. They are also very valuable as sources of family, estate, and social history generally. The results from the cases presented to the Lords at Westminster show some results that were quite predictable and others that were less so. For example, as sole litigants females represent just 4% of the overall total, but when appearing et ux, they appear in 23% of cases. Most of the cases show that property was by far the most compelling reason to go to the ultimate court, and that counties Dublin, Limerick and Galway were where they appeared the most. Judgments were usually upheld (the appeal failing) 56% of the time, with a successful appeal showing in 35% of cases, and the remainder being settled out of court or otherwise not being pursued. The cases would also appear to show a relatively small coterie of utterly dominant counsel, the most prominent of whom made successful careers at the bar and were generally appointed to high office. Interestingly, just one Irish barrister, St John Broderick, made an appearance at the bar of the house with any regularity. In terms of the originating courts, the cases heard in London break down upon the following lines:
- 7% writs of error from the three common law courts in Ireland.
- 2.3% from consistory courts in Ireland
- 21% from exchequer (equity side) in Ireland
- 3% from chancery in England
- 2.3% from parliament in Ireland
- 63% from chancery in Ireland
The study, overall, is not just a study of Irish cases. It will inform procedures in both parliaments, the nature of dispute (particularly property) at this level in Irish society, and also may be indicative of how Ireland is seen and dealt with in the emerging imperial British mindset.
CAD
Further reading:
- M.S. Flaherty, ‘The empire strikes back: Annesley v. Sherlock and the triumph of imperial parliamentary supremacy’ in Columbia Law Review, 87 (1987)
- D.W. Hayton, ‘The Stanhope-Sunderland ministry and the repudiation of Irish parliamentary independence’ in English Historical Review, 113 (1998)
- D.R. Klinck, Conscience, equity and the court of chancery in early modern England (Farnham, 2010)
- A. Lyall, The Irish house of lords: A court of law in the eighteenth century (Dublin, 2013)
- I. Victory, ‘The making of the declaratory act of 1720’ in G. O’Brien (ed.) Parliament, politics, and people: Essays in eighteenth-century Irish history (Belfast, 1989)
Join us tonight for our next ‘Parliaments, Politics and People’ seminar. James Ford (University of Nottingham) will speak on ‘‘United under one roof, though separated by different arches and mouldings’: representing the Union in the Central Lobby mosaics, 1847-1924‘. Full details available here.
The History of Parliament 