law

law.

Early Ireland

Our knowledge of pre‐Norman law in Ireland derives largely from the Old Irish law tracts, which date from between the 7th and 9th centuries ad. Less detailed information on legal topics is provided by sources such as annals, saints' lives (hagiography), gnomic material, and sagas. Practically no case law has survived from this period, so it is sometimes difficult to be sure how early Irish legal theory worked out in practice. Linguistic evidence shows that many basic features of early Irish law go back to Common Celtic times (c.1000 bc). For example, Old Irish macc, ‘surety’, is cognate with medieval Welsh mach of the same meaning. This indicates that a system of suretyship was in operation in Common Celtic law.

The coming of Christianity in the 5th century had a profound impact on early Irish society, and the law tracts of two or three centuries later are thoroughly Christianized. Some of the material in these tracts comes directly from canon law, and clergy are accorded positions of legal privilege. None the less, the law tracts do not invariably reflect the teachings of the church: concubinage is tolerated and divorce is permitted in a wide variety of circumstances.

In early Irish society, split as it was into numerous petty kingdoms, with no overall authority, the administration of law was essentially a private matter: offences were dealt with, not by a higher authority, but between persons, in a process in which sociolegal status played an important part. There was no distinction between criminal and civil offences: where such had occurred it was up to the injured party, or his kin if homicide was involved, to bring a legal action against the offender for compensation. Compensation was proportional to the standing of the victim of the offence, i.e. to his ‘honour price’ (enech); where homicide was involved a further payment, the éraic (‘body fine’), was payable also. The normal procedure was to hire an advocate skilled in the law; but before the case could proceed both parties had to produce a pledge or surety that the decision of the judge would be accepted. Where offender and offended were subjects of the same king or lord, matters were relatively simple; where they were from different jurisdictions matters were more complicated, and depended on agreements between the jurisdictions.

In all cases pledges played an important part, both for payment and enforcement, in both criminal and civil matters. Almost any crime could be atoned for by payment: restitution first, followed by a penalty fine. Where the offender was unable to pay, his kin‐group, usually descendants in the male line of the same great‐grandfather, was liable, starting with his next of kin and extending, if these were unable to pay, to degrees further out. If payment was not made voluntarily, the plaintiff could distrain it from a kinsman of the guilty party, and the person so distrained was entitled to compensation from the guilty party. If the latter failed to pay this, he could be formally disowned by his kin, and lose his legal rights in society—in effect, anyone could kill him without being brought to justice. If there was no kin to pay for him, he could be put to death by the relatives of the victim, or enslaved either by them or (if surviving) by the victim of the original offence.

Sureties also played a key role in all legal matters. One very common one was the ráth or ‘paying surety’ normally used in contracts: the ráth guaranteed with his own property that his principal would fulfil his side of the contract within the term specified. If he did not, the surety had to pay, and his principal was liable to heavy penalties. A second type of surety was the naidm or ‘enforcing surety’, who had no financial liability if the principal defaulted, but was entitled to compel the principal by distraint or imprisonment or violence.

Minor cases were normally heard by a single judge, but major ones by several; in each petty kingdom there was usually an official judge, but his functions were not limited to official matters, since he could hear cases which did not involve the king, and there were usually other judges making a living from their knowledge of law, probably by arbitrating for a fee. In such hearings oaths played a crucial part, not merely in support of evidence, but because the oath of a person of high rank overrode that of anyone of lower rank. In extreme cases, where there were no witnesses and oaths on either side cancelled one another out, matters could be settled by casting lots, or by ordeals.

In actions at law, personal status was crucial; and status depended on property and authority: on property, because status was to some extent proportional to the amount a man possessed; on authority, because a man who had committed his surplus property to clients who rendered him services and food rents outranked the man who had no clients. Moreover the authority attributed to a king, a cleric, or a judge increased their rank and gave them special legal privileges and immunities. Women, with the rarest of exceptions, had no status in their own right, but derived it from their husbands, if they had fully formal marriages; concubines had only half the status.

Matters of succession were complicated by the fact that most land was owned by the kin‐group as a whole, rather than by individuals; other land could largely be disposed of as the acquirer wished, but the passage of kin‐land from one generation to the next was governed by rigid rules. Where there was more than one male heir, the land had to be equitably divided: the youngest son divided up the land, but the eldest had the first choice, and so on down to the youngest. Where there were no male heirs, daughters were entitled to hold the land for life, but thereafter it normally reverted to the kin‐group. The rules for succession to land were obviously not applicable to succession to the kingship: theoretically all the king's sons had an equal right to succeed, but commonly the strongest or least scrupulous did so.

Medieval Ireland

During the first half‐century after the Anglo‐Norman invasion there is comparatively little evidence about the law or legal custom that was being followed in those parts of Ireland controlled by the new settlers. It is, however, clear from such fragmentary evidence as does survive that in this earliest period some of the characteristic remedies of English law, and some of its characteristic modes of proof, were already being used for disputes between the settlers, and that the settlers had also brought with them some of the characteristic rules of English medieval land law and criminal law. In 1210, during King John's visit to Ireland, the king drew up a charter laying down as a general principle that English law was to be followed within the lordship of Ireland and describing in detail some of its more important rules. During the following century a number of other positive measures were taken to ensure that the Irish common law was (and remained) in keeping with that of England. On his return to England John sent a formulary (a Register of Writs) to Ireland, based on the standard writs then available from the English chancery, for the initiation of litigation in the king's own courts and in the county courts, with instructions allowing the justiciar to issue writs of the various kinds given in Ireland. Further orders were given in 1234 and 1236 for making available in Ireland particular forms of writ available in England, and in 1246 the general principle was stated that all writs ‘of common right’ should be available in Ireland as they were in England.

During the same period there is also evidence of the communication of specific legal rules and procedures from England to Ireland with instructions that they be applied in the courts of the lordship. These mandates are probably evidence, not so much of ignorance of the rules and procedures in Ireland, as of the determination of the English government to ensure that the Irish courts did not develop their own variant local rules. There is also evidence from 1236 owards of English legislation being sent to Ireland with orders that it be applied in the lordship. This ensured that the Irish common law was not left behind as the English common law was remodelled by legislation. In the 14th century this process became much less common and the last occasion on which English legislation was simply sent to Ireland with instructions for its application was in 1411. However, much the same effect was achieved, albeit with Irish agreement, through the adoption or re‐enactment of English legislation by the Irish parliament. The last comprehensive measure of this kind (the ‘statutory’ Poynings's Law) was enacted in 1494–5. This adopted all general, public legislation enacted up to this time in England for future use in Ireland. Uniformity between the English and Irish common laws was also promoted by the practice (attested from the mid‐13th century onwards) of removing cases by writs of error from the courts of the lordship to the court of king's Bench in England, where judgments were upheld or overthrown on the basis of the current English legal rules, and by the practice (attested from the later 13th century onwards) of Irish lawyers going to England to receive their legal education (see legal profession).

The courts of the lordship did not, however, slavishly follow English law in all respects. Even in the 13th century (the period when we find the greatest emphasis on uniformity) there is some evidence for the existence of distinctive Irish institutions and for legal rules different from those of England being enforced within the lordship. From the later 13th century onwards there was also an Irish parliament possessing (down to 1494–5) unfettered freedom to enact its own separate legislation. Other differences between the law followed in the two jurisdictions resulted from separate legislation being made specifically for Ireland in England itself.

Throughout this period English law coexisted with the system of Gaelic law. The initial assumption seems to have been that even the Irish living within the areas of English settlement would continue to use Irish law, at least in their disputes with each other. In general the native Irish were debarred from using English law even for litigation with the English settlers. From the early 13th century an exception was made for members of five major Irish royal families, ecclesiastical dignitaries, and those granted the right to use English law. Between 1277 and 1280 there were abortive negotiations for a more general grant of English law and in 1331 such a general grant was made to all except the unfree peasantry. With the decline of the lordship after 1300 (see gaelic recovery) came a decline in the size of the area within which English law was effective, and the intermingling of the descendants of the settlers and of the earlier inhabitants through intermarriage and other social contacts led to some of the former adopting Gaelic law (see gaelicization) even for the transmission of family property and in dealings with other settler families: the alarm this caused the rulers of the lordship is reflected in the Statute of Kilkenny. There had also been some borrowings from Gaelic Irish law into the law of the lordship as early as the 13th century. These included the concept of family responsibility for the wrong‐doing of family members (kincogish). Even during Elizabeth's reign there was some accommodation of native Irish custom (especially regarding the descent of land) in the practice of the court of chancery. It was only in the first decade of the 17th century that this policy was reversed in two significant decisions, the case of gavelkind (1606) and the case of tanistry (1607).

Early Modern Ireland

The area within which the ‘English law’ of the lordship was effective had never, even at the height of the medieval lordship, covered anything like the whole of the island, and declined steadily from the early 14th century onwards. By the early 15th century English law was the law only of a relatively small area around Dublin, the ‘English Pale’, though English legal custom was also a significant part of the mixture of legal rules applicable within the great lordships of Ormond, Desmond, and Kildare, and made a lesser contribution to the legal customs of other lordships. By 1691, however, the courts of the king of Ireland were exercising jurisdiction over all parts of Ireland and the church courts (although still enforcing what was largely the previous system of canon law) had been brought under the ultimate control of the state.

The destruction of local autonomy and extension of the common law throughout Ireland took little more than half a century, between c.1540 and c.1610. The policy of ‘surrender and regrant’ adopted in the 1540s encouraged major Irish lords to receive a regrant of their lands under the rules of English law and to acknowledge the authority of the king's courts. A more drastic tactic for spreading English rule and with it English law, first adopted in the 1550s, was plantation. A third mechanism for ensuring that English law was brought to parts of Ireland which had hitherto been largely outside its territory was the establishment early in the reign of Queen Elizabeth (1558–1603) of provincial presidencies in Munster and Connacht, with their own courts and their own military forces, to establish law and order on the English model. The Court of Castle Chamber, established in 1563 on the model of the English court of Star Chamber, may also have played a role. Symbolic of the success of these measures was the fact that by 1617 the justices of assize were holding regular sessions twice yearly in all 32 countries. The court of Castle Chamber none the less went on sitting until the 1640s and the presidency courts themselves survived until 1672, exercising a wide jurisdiction within their respective provinces. The destruction of the links between the Irish church courts and the papacy was theoretically accomplished by legislation of the 1530s, but was not fully effective until the early 17th century.

The courts of the lord (later the king) of Ireland throughout the early modern period applied a system of law that was ultimately derived from the English common law but none the less differed in some respects from the law of the contemporary English common law courts. This was partly because of the existence of a separate Irish parliament making its own distinct legislation, a corpus of law better known to both lawyers and the courts once it began (from 1572 onwards) to be available in print; partly because the Dublin parliament was often slow to enact major legislation paralleling that enacted in England. It was not, for example, until 1634 that the Irish parliament enacted legislation equivalent to the English Statutes of Uses and Wills of 1536 and 1540. Although the English court of King's Bench continued to exercise an appeal jurisdiction for cases from Ireland, this was virtually the only formal mechanism to ensure that Irish courts followed English common law precedents and rules; informally, however, substantial uniformity in most matters was probably ensured both through the much readier availability (in print) of English reported decisions and by the practice of requiring barristers to receive their legal education at the inns of court in England, even after the foundation of the King's Inns in Dublin.

Modern Ireland

From the late 17th century the Irish parliament held much more frequent sessions, producing a substantial volume of legislation. The English (from 1707 the British) parliament also insisted on its power, reaffirmed in the Declaratory Act, to make legislation binding on Ireland. In practice the exercise of this power was comparatively infrequent, albeit generally controversial. It was not renounced until the Declaratory and Renunciation Acts of 1782–3 (see legislative independence). After 1800, under the Act of Union, it was the United Kingdom parliament at Westminster (to which Ireland now sent representatives) which gained sole power to legislate for Ireland. Although some legislation was enacted which was binding on the whole United Kingdom, much legislation continued to be passed specifically for Ireland, particularly in the politically sensitive areas of land law and landlord and tenant law. Thus, despite the disappearance of the Irish parliament, there continued to be a distinctive Irish statute law. The Irish House of Lords had asserted its claim to stand at the head of a largely separate Irish court system by acting as court of appeal for Irish cases from the 1660s onwards. This claim was challenged by the English House of Lords in a 1698 case and the Irish House of Lords was deprived of its powers under the Declaratory Act. Their restoration in 1782 lasted only until the Act of Union came into force in 1801, when the United Kingdom House of Lords became the final court of appeal for Irish as for English and Scottish cases. It is unclear how far this led to a greater uniformity between the jurisdictions, but there is some reason to suppose that the greater availability of specifically Irish law reports in print (see law reporting) may actually have helped to reinforce the distinctiveness of the Irish legal system.

The Anglo‐Irish treaty of 1921 and the adoption of the constitution of the Irish Free State led to the creation of the Oireachtas, an independent legislature with ‘sole and exclusive’ power to make legislation for the 26 counties included in the new state. The constitution specifically made provision for the continuation of all existing laws in force in Ireland, except in so far as these were inconsistent with the terms of the constitution. This preserved almost all the pre‐1922 legislation of the United Kingdom parliament, and of the earlier Irish parliament, then in force in Ireland, but did not preserve the legislation of the first Dáil. It was also held to provide constitutional authority for the continuation of the existing Irish common law, as stated in pre‐1922 judicial precedents from both islands. The constitution of Ireland (1937) made similar provision for the continuation of existing legislation and common law in Ireland. Both constitutions included a series of specific guarantees of personal rights. Since the 1960s the Irish courts (partly under the influence of American constitutional practice) have also recognized and protected a series of additional rights not specified in the constitution, such as a right to marital privacy and a right to withdraw one's labour. The 1922 constitution contained a provision allowing a right of appeal from the Irish courts to the judicial committee of the British privy council, but in practice this was a little used and mainly ineffective, if controversial, power and it was abolished by constitutional amendment in 1933. Under the terms of Ireland's admission to the European Union in 1973, the law of the Community takes precedence over Irish domestic law and appeal now lies on questions of European law to the court of the Community.

The Government of Ireland Act devolved legislative power in the six counties of Northern Ireland to a separate parliament of Northern Ireland which first met in May 1921. That parliament was given power to make laws for the ‘peace, order and good government’ of Northern Ireland but made subject to a number of specific safeguards against potential abuse of its powers. It was also subject to the continuing overall sovereignty of the United Kingdom parliament at Westminster, to which Northern Ireland continued to send MPs. The United Kingdom parliament also retained the sole ability to legislate on matters relating to peace and war, foreign relations, coinage, and weights and measures. The 1920 act created a separate Supreme Court for Northern Ireland (both a High Court and a Court of Appeal) from which appeal lay initially to an all‐Ireland High Court of Appeal (soon abolished), and beyond that to the United Kingdom House of Lords. The judicial committee of the privy council was given power to adjudicate any disputes about the validity of Northern Ireland legislation. In 1972 the United Kingdom parliament used its legislative sovereignty to suspend the operation of the Northern Ireland parliament and substitute legislation for Northern Ireland by order in council. The Constitution of Northern Ireland Act (1973) devolved legislative powers back to a new Northern Ireland Assembly, but the experiment lasted only until July 1974. Thereafter order in council became the normal mode of legislation for Northern Ireland.

Bibliography

Binchy, D. A. (ed.), Studies in Early Irish Law (1936)
Donaldson, A. G. , Some Comparative Aspects of Irish Law (1957)
Kelly, F. , A Guide to Early Irish Law (1988)
Ó Corráin, D.,, Breatnach, L.,, and and Breen, A. , ‘The Laws of the Irish’, Peritia, 3 (1984)

FK,/GmacN,/ and Fergus Kelly