Research Guide Subtitle: An outline of nineteenth-century Irish court system
Contributors: Síle McGuckian
First published: 2022
This guide aims to give a broad overview of some facets of the nineteenth-century Irish court system. It should help the reader understand the general structure of the courts system, and point them to more detailed works on the subject. It begins with an overview of the court structure and then sets out a brief note on each of the common law courts and the chancery court. A more detailed note on the historical development of the courts then follows. Finally, there is a list of some of the legal terms mentioned in the Salved Records rescued from the rubble of the Public Record Office of Ireland in 1922.
The Common Law The original common law system was established in England by the Normans after their invasion in 1066. It was introduced into Ireland in the twelfth century and formed the basis of Irish law. It grew out of centuries of judicial decisions made by the Royal courts. Common law was thus made by judges, not legislators and its development was essentially pragmatic. Because it depended on cases being initiated in the courts by aggrieved parties the law responded to actual rather than anticipated problems. In contrast, the law in a civil law system is contained in comprehensive codes enacted by legislators which attempt to provide for every legal contingency
Irish Judges followed the English system with the appointment of English judges and an appeal to the House of Lords. The fact that the House of Lords remained the final appellate court for the Irish courts was viewed as important in order to ensure uniformity in the administration of the laws. For the same reason, English judges were frequently appointed to the most senior roles in the Irish courts for much of the century.
This court emerged from the Exchequer Department of the King’s Council (the Curia Regis), presided over by the Treasurer. Originally the Court of Exchequer dealt mainly with revenue and finance matters directly involving the King’s Treasury. It was presided over by the Lord Chief Baron, the other judges were referred to as puisne (pronounced ‘puny’) barons. By the nineteenth century the court was prepared to hear civil cases in which one party claimed that a debt owed to him by the other party would be used to discharge a debt owed to the Crown. This legal fiction had effectively opened the jurisdiction of the court to the general public.
This court was established to deal with ‘common’ disputes, that is disputes between private individuals or commoners in civil matters. It was presided over by the Chief Justice of the Common Pleas and a number of puisne judges.
This was regarded as the most important and influential of the common law courts. It dealt with criminal and civil matters. It also acted on behalf of the King’s interest by exercising a supervisory jurisdiction over the inferior courts. The court was presided over by the Lord Chief Justice of Ireland and a number of puisne judges. The title of this court depended on whether the monarch was a King or Queen.
As a result of the rigidities of the medieval common law system, a second body of law called equity was developed and administered in the Court of Chancery. Dissatisfied litigants could appeal from the common law courts to the Lord Chancellor who determined their cases on the basis of their individual merits and the fairness or equity of the facts.
The Court of Chancery had jurisdiction in equity, which meant that trusts, mortgages and such matters came within its remit. In addition, because of its antecedents in the King’s chancery department which recorded ownership of land and property, these formed a central part of the decisions of the court. The court was presided over by the Lord Chancellor of Ireland, along with the Master of the Rolls. After 1860 there was also a Vice-Chancellor.
An appeal from all three common law courts and the Court of Chancery, lay to the Court of Exchequer Chamber. This was composed of justices of the three common law courts. In 1857 it was enacted that the Court of Exchequer Chamber when hearing an appeal should consist of the two courts from which the appeal did not arise.
From all Irish courts there was an appeal to the House of Lords.
In early medieval times the Court of King’s Bench was largely concerned with cases directly involving the Crown including crime and felonies. It also exercised a supervisory jurisdiction over the other courts, and was thus viewed as the most important and influential of the common law courts.
The Court of Common Pleas, on the other hand, dealt with the vast majority of what would be today viewed as civil cases. These cases made up the bulk of the litigation brought before the superior courts, with the result that the Court of Common Pleas was the busiest of the medieval courts, and more than any other shaped the medieval common law. It had the largest number of judges, officers, clerks and attorneys. In the fifteenth century the development of the Chancery Court began to attract large amounts of the litigants who would previously have brought their actions in the common law courts.
In response to this the Court of King’s Bench formulated a new system of bills to bring actions directly to the court along with swift process and procedure, and newer and more efficient remedies in an effort to rival the Chancery Court. The volume of cases at the King’s Bench expanded dramatically throughout the Tudor era. The Court of Common Pleas was unable to respond in a similar manner as it did not have the same degree of flexibility of the Kings Bench, however, throughout the seventeenth century it continued to see a large volume of cases because it continued to have up to ten times as many attorneys as the King’s Bench.
The Court of Exchequer was originally concerned with finance and revenue cases directly involving the King. The attraction of this court to private litigants lay in the perception that the methods used by the King to collect his own revenue must be the best. Legal fictions that were used in order to allow regular litigants to have access to the court had become largely accepted by the seventeenth century. The outcome of these developments was that by the end of the seventeenth century the three central courts of law had acquired comparable jurisdiction over most common pleas and had developed procedures which, though divergent in outward forms and in costs, worked very much alike in practice. Each court nevertheless retained some specialist functions. The King’s Bench still had its supervisory role, through error, mandamus and certiorari, and occasionally had criminal trials at the bar. The Exchequer continued its proper revenue jurisdiction. The Common Pleas kept a monopoly of the true real actions. In reality these restrictions came to mean very little.
By the eighteenth century it was customary to speak of the ‘twelve judges’ (of the three courts) as a body equal in status and authority and function, and to regard their assignment to three separate tribunals as little more than an accident of history. The prospect of a legal difficulty might have influenced the plaintiff’s choice of court; but probably the choice more often depended on the sphere of practice of the attorney consulted, on subtle differences in costs, and procedural advantages.
The Court of Chancery continued to have a distinct and separate jurisdiction into the nineteenth century. In addition to its specializations of trusts, mortgages and property, equity had remained more flexible than the common law. Pre-trial procedures such as discovery were available and there was a much wider choice of remedies along with the governing principle of equity and fairness. In the nineteenth century the Court of Chancery had become so massively overburdened that it was a by word for delay and inefficiency. A large part of the problem was that it was a one man court, with decisions determined by the Lord Chancellor himself. Throughout the first half of the nineteenth century the jurisdiction of the Master of the Rolls was increased and number of Vice Chancellors were appointed to hear cases. In 1851 a Court of Appeal in Chancery was created, along with a number of other reforms. However, by the 1870s it was clear that the whole court system would have to be reformed.
Under the Supreme Court of the Judicature Act, the old superior courts system (other than the House of Lords) was abolished and replaced with a Court of Appeal and a High Court of Justice with five divisions.
High Court of Admiralty 1784
Landed Estates Court 1858
Bankruptcy Court 1872
1857 Transfer of testamentary jurisdiction of ecclesiastical prerogative Court
Supreme Court of Judicature
1. High Court of Justice –original jurisdiction as well as appeals from
courts of local jurisdiction.
Courts of common law and equity fused.
Number of Divisions which amalgamated earlier courts.
2. Court of Appeal
3. House of Lords – presided over by Lord Chancellor of England.
From 1893 Admiralty
Assizes (Nisi Prius) Travelling justices of the High Court of Justice
Most serious criminal offences (such as murder).
Quarter sessions and Petty sessions: Justices of the Peace
Emerged to deal with minor civil cases that would have over-burdened the Assizes.
Manor Courts (rural) and Borough, Mayor, & Sheriff (urban) (Tholsel courts)
There were 26 Ecclesiastical courts, the Prerogative Court, 24 diocesan courts, and the ecclesiastical court of Newry & Mourne. The jurisdiction of these courts was reduced over the nineteenth century, most dramatically in 1870 following the dis-establishment of the Church of Ireland.
J. H. Baker, An Introduction to English Legal History (London, 1971)
T.C. Barnard, ‘Local Courts in later Seventeenth- and Eighteenth-Century Ireland’, in Michael Brown, Sean Patrick Dolan (eds) The Laws and Other Legalities of Ireland (Dublin, 2001), pp 33-47.
J.C. Brady, ‘Legal Developments, 1801-79’ in W.E. Vaughan, (ed.), A New History of Ireland, V: Ireland Under the Union (Oxford, 1989) pp 451-81.
R.B. McDowell, The Irish Administration, 1801-1914 (London, 1964)