# Chronicle of the law officers of Ireland/Outline of the Legal History of Ireland

A SHORT OUTLINE
OF THE
LEGAL HISTORY OF IRELAND.
WITH
ACCOUNTS OF INDIVIDUALS AND THEIR CHARACTERS.
[Abridged from Duhigg's History of the King's Inns.]
For centuries after Strongbow's descent, Dublin did not exceed in size the modern town of Wexford: the other sea ports of the kingdom in the hands of the invading colonists existed on a similar scale. The entire sea coast of the kingdom was not in their occupation. Even in 1533, the sept of O'Bymes submitted (by an indented treaty of allegiance with Henry VIII.) to the condition of subjects, and surrendered to that Prince the town and castle of Wicklow. But the Irish Cabinet from habitual self-interest counteracted the intended integrity of their sovereign; a descendible security to landed property was withheld, and no protection given to active industry by legal freedom; practices such as these, were finally completed by territorial confiscation and personal plunder. This league continued during the reigns of the Tudor line; for the interior part of Wicklow did not become shire-ground until the accession of James I.
​Previous to the seventeenth century an intercourse between Irish cities was kept up by sea, or through defiles and passes occupied by an envenomed and oppressed foe, with whom the legislation of the state forbade either coalition or friendship; any acquired portion of inland country was unwisely erected into Palatinates, whose chieftains preferred independent dominion to the salutary restraints of regular law. Sage Chroniclers imputed this to degeneracy of manners, but the principle flowed from that appetite for power to which human nature, untamed by art or education, is for ever prone. There were no circuits for centuries after the introduction of English law. Superior Courts alone afforded any encouragement or reward;—within each precinct local jurisdictions determined civil causes, and martial law guided by Strongbownian Palatines or Tanistical chiefs formed the criminal code. The spirit and perfect process of English law was thus confined to the capital and a narrow portion of the pale. An arrangement of legal officers had been regularly kept up, and courts constantly held which employed a few barristers who expected, after a practice more laborious than lucrative, to attain judicial stations. From this motive, such inhabitants as resolved to prepare by legal skill for professional eminence resorted to the Inns of Court in London, where English law was cultivated in the highest perfection. An Irish Inn of Court was established in the reign of Edward I.; it was called Collett's Inn, and lay outside the walls of the city where Exchequer and South George's Street now stand. In that precinct the superior courts of justice were also held, surrounding Palatinates or Irish chiefries rendering the active duties of the King's Bench and Common Pleas very trifling. The equitable jurisdiction of Chancery did not then exist, or at least had no extensive subject matter to operate upon—whilst an appetite for revenue gave to the Exchequer ample and constant business. An incident extremely natural to the existing government of Ireland and its proscribed opponents, disturbed the peaceful dissonance of this legal tribe—a band from the Wicklow mountains watched an opportunity, whilst the Deputy and ​a greater part of the garrison were on a military tour, and concealing themselves in thick woods to the southward of Dublin, unexpectedly entered, plundered the Exchequer, burnt the records, and slew the unarmed and unprepared inhabitants.
By the preceding event legal practitioners were driven within the walls of the city, and superior courts of justice held at the Castle, and even at Cariow, which was then considered an impregnable fortress on the southern frontier of the English pale. There fortunately arose in the profession one of those eminent men, who with unerring certainty arrest the applause of posterity and appeal to its impartial verdict from the interested neglect of cotempomries. This is the true triumph of personal merit; what bean its fleeting image cannot be long upheld by flattery or power, Whilst the sterling stamp meliorates by time and becomes immortal. In this memorable class Sir Robert Preston, Chief Justice of the Common Pleas under Edward III, deserves a settled station. Profoundly learned in his profession, and inflexibly just in the exercise of judicial duty, wealth, power and rank were only estimable in his eye, as they administered to the luxury of doing good. This honest, brave and enlightened patriot disinterestedly assigned to the legal body his residence, which thence took the name of Preston's Inn. It occupied that space of ground whereon the Royal Exchange and adjacent houses in Parliament Street now stands and extended very near to the Liffey.
In this position judges and barristers were lodged for two centuries, until state policy rendered it inconvenient to hold the courts of justice within the Castle, as these chambers were required for military residents and their necessary acconunodation. This circumstance led to the measure which was adopted in 1542.
The termly sessions of the superior courts were removed to the dissolved monastery of the Dominicans on the northern side of the Liffey. The private apartments of that wealthy brotherhood often hospitably accommodated illustrious foreigners, and were deemed suitable to the legal establishment. Thus, as ​if by an ominous concurrence of causes and events, that learned body which first read lectures on foreign laws in England, and introduced them into Ireland, sunk under the more useful ascendancy of the common law and its enlightened professors. The reign of Henry VIII. was distinguished by an uncommon accession of property, which was as profusely distributed as it had been profligately obtained, yet the firmness of Henry's character in Ireland appears evident by the general and instant revolt which threatened the dawn of a minor's reign. Elective chiefs of Milesian race were seduced or awed by Henry to accept the descendible rank of nobility, whereby paternal feelings superseded family pride, and a power derived from Brehon law or native customs was wisely directed to its complete subversion. Such also was the progressive strength of that principle, that the government of the young Prince, aided by those interested nobles, quickly enforced a general obedience. It also assumed another position worthy of notice, and which partook alike of the policy and justice of English law. The Privy Council, or Superior Courts, encouraged the complaints and redressed the grievances of dependent Irish septs. This sagacious system rent asunder the link of Milesian union, and enlisted at no expense inveterate enemies to its continuance; persons acquainted with the habits, prejudices, and language of the inferior classes, were thereby interested to exercise all such influence in exploding customs opposed to the common law. Religious disputes did not, during this reign, enforce any material variation from existing law, or much inflame the civil disorders of the country; but a new sovereign assumed the sceptre, whose personal honour and presumed education clashed with Edward's religious creed.
Property, however, remained confirmed and secure amidst the alarming mutations in religion, policy, and law; even the King's Inns grant held its destined station, though an order of friars remarkably numerous and learned had previously enjoyed that site.
Though legal materials of most extensive import, and in ​uncommon variety, occur in the reign of Elizabeth, the leading maxim of her long and successful reign was to enforce with steady aim and persevering counsels, every measure which tended to extend or confirm a complete model of the English constitution, with the full benefit of its common law in this island. In this reign the Lord Deputy Ormond sought to have the Superior Courts removed to the Cathedral of St. Patrick, but Dr. Loftus, Archbishop of Dublin and Chanodlor, successfully resisted this attempt.
The accession of James I. was marked by peculiar blessings, suited to a timid and peaceful temper; external security and internal strength had been confirmed through England and Ireland by his wise and warlike predecessor. The founder of each preceding line won a doubtful sceptre amid the thunder of bottle, and obtained a kingdom rent by intestine faction and civil war, in which a powerful party for a long period looked to revenge and resettlement. Sound policy and cool courage were continually exercised to counteract such alarms, but James was completely destitute of these eminent qualities so necessary to support or adorn a throne. His powerful situation supplied the defect and enabled him to indulge exertions more correspondent to his genius, the management of scholastic disputes and political innovation. The English code could not meet in such a man a sincere or determined defender, his reign is therefore marked by practical hostility to its letter and spirit. Ireland lay more exposed to these attacks from habitual misinterpretation of law, and the great weight of property which became vested in the crown.
A confiscation of the northern counties presented a new and unexampled precedent, which a perfect knowledge of English law, unsupported by the corruption of Irish practice, would disable an honest man from carrying into effect. Thus the election of an Irish chieftain was not allowed to have any weight in Irish courts against the descendible quality of fee simple estates, yet the treason of such leader was considered conclusive proof of a right sufficient to defeat all derivative interests, and vest the ​same without further inquisition in the crown; living within a rebellious district was held evidence strong enough to constitute the guilt of treason against the party so circumstanced, and enforce from him proof of active loyalty. Being slain in battle or executed, flagrante bello, was deemed rebellion, and constituted an immediate attainder, in which instance the heir was irrevocably bound, and could not successfully support by right by shewing that his ancestor acted under compulsion, or suffered by martial law. The preceding practices are anomalous to common law, and were, however, enforced by the tyranny of Government, and the corruption of Irish judges. The boundaries and claims of church lands and monasterial possessions also afforded an ectensive field for litigation and doubt; add to these the contradictory grants of the crown, with the artful and fraudulent claims of existing and reversionary assignees; such a state scarce needed the additional abuse of that ancient prerogative of the English crown, which presumes all landed property to flow directly from that fountain, and throws (when demanded) the necessity of shewing a title on the possessor. The preceding legal harvest afforded ample room for professional discussion in arranging the struggling rights of complaining natives, unprincipled courtiers, and designing adventurers.
Such was the actual situation of Ireland on, or shortly after the death of Elizabeth. It undoubtedly forms the undisputed glory of her successor, that he firmly determined to reduce this political chaos to a regular settlement, and providence permitted him to see those humane and public spirited endeavours crowned with complete success. In furtherance of this great design, James seated on the Irish bench, men alike eminent for talents and integrity; law officers of the crown bore a similar character; barristers and attorrnies also exhibited in suitable proportion, a body of practitioners distinguished for family descent, personal character, and extensive learning. Clerks were a subordinate legal body which existed under the judges and leading barristers. Laborious research and extensive professional learning marked ​the judges and barristers under the reigns of the Tudors and the Stuarts; their youthful assistants therefore improved by the connexion, which was also considered an useful preparation to young men of good family and education. The practice continued in Ireland through that century. Thus we find that Denis Daly had been in early life a clerk to his uncle, the famous Patrick Darcy; and Mr. Daly, animated by such example, afterwards became a most able lawyer and distinguished judge. But in England this species of legal assistant was permanent and universal. The great Earl of Cork tells us that he had been clerk to Chief Baron Manwood; the regicide Cooke affirms that he was employed in a similar manner by Mr. Brickendon; and we know that Lord Somers was clerk to Sir Francis Winnington.
The peaceful and inglorious reign of James may be fully explained in the legal history of either island. Its leading feature and principal vice lay in an unbecoming apprehension of Parliament, and unsuccessful attempts to mislead or control that constitutional organ of national will;—Ireland afforded a feir field for this disgraceful enterprise, and every effort of the cabinet was directed to that end. The regular representation of the country was not relied upon, though the late grants of the crown were so enormous as to interest a great portion of the landed proprietors in support of prerogative, which was also directed to render the remaining tenure of estates servile and insecure. Religious phrensy was likewise made use of to uphold courtly humour. Law was to be alternately relaxed or enforced as these hostile parties exhibited rival symptoms of complaisance and submission. In this manner a smothered flame was formed in each kingdom, which ripened during the reign of James, but blazed with unequal yet unabated fury, to scorch or consume his unfortunate successors. By political presumption, repugnant to English law or national habits, Filmer and James contributed more to the revolution than Hampden or Sidney. The timidity of his temper also urged him to act from momentary impulse, and not direct his judgment to remote political projects. Had not this been ​the case, he would not for the trifling service of one parliament create forty new boroughs, and enable families, as by hereditary succession, to usurp representative situations, and thus form an interested phalanx equally dangerous to the crown as the nation. Selfish courtiers alone received a real benefit and fixed inheritance, whilst the Royal character was disgraced by employing legal forms to subvert the constitution. A corrupt domestic government exercised correspondent malpractice, and permitted or encouraged returning officers to violate their trust in the most barefaced manner. It is unnecessary minutely to inquire how far the several returns were legal, but as there appear many authenticated complaints of arbitrary acts and courtly practices, a concise and general review or commentary cannot be entirely useless or ill-suited to an account of the Irish legal body; besides, it may contribute to the main object of my design, which is to exalt and strengthen the character of existing monarchy, parliamentary representation, and judicial practice, by the contrast which each exhibits to the enormous abuses committed in former periods, or even under the peaceful and inglorious reign of James. Members elected by pretended corporations—retiring officers exercising similar partiality in favour of themselves, or dispensing injustice at their election courts, formed a mass of complaint highly entitled to parlimentary inquiry. Such discussion was, however, counteracted by courtly influence, and referred by James to a motley commission, composed of the Deputy, an Irish Chief Judge, and three English courtiers. The business was conducted and concluded, as may be expected, from this preparatory step. Numbers for the new corporations were confirmed in their seats, not merely from an error in judgment, but in direct opposition to the resolution of English judges, as reported by Coke in the Dungannon case, for James promptly consulted that sage body to sanctify Cabinet measures, and yet deviated from their decision at the suggestion of prejudice or self-interest. This temporary turn succeeded, and illegal representatives profaned the temple of legislation.
​The King then seemed willing to cancel these new fangled corporations, which he admitted resembled by their poverty or want of population the ancient ruined towns of Ireland. Even Dungannon, the Deputy's property, contained in 1619 but nine stone and six timber houses built, and six stone and six timber houses ready to be roofed. When such was the state of a borough town, favoured by Vice-regal patronage and residence, the reader will easily perceive the prosperous position of rival or surrounding communities. Legal mischiefs, however, rise from trifling variations, but are extended by selfish malignity to collateral purposes, and thereby dispense incalculable mischief to remotest posterity. Little did James foresee that he created a weight of corporate corruption, equally hostile to royal prerogative or popular rights, and which malady, continuing for ages, has been in our time considered a grievance not demanding suppression but entitled to perpetuity or purchase.
It may well be imagined that the sheriffs, or similar corporate ministers returning themselves, exhibited such a contradiction to common sense and common law, as to meet general approbation in an immediate abolition of the singular presumption. Cabinet pride, however, supported the glaring wrong, and Doctor, afterwards Sir William Temple, (though Provost, and as such returning officer,) gravely returned himself and another civilian for the University of Dublin in the year 1613. Where such glaring variations from English established law were upheld by the hand of power, it requires neither feet nor illustration to presume that returning officers exercised a corrupt discretion according to the dictates of viceregal influence, or party prindples; by the preceding practices the House of Commons swarmed with hackneyed courtiers or hungry expectants.
An extensive expected attainder afforded anxious speculation, whilst threatened religious persecution prevented a further prospect for growing disloyalty. The nation, however, felt a Security from the latter unchristian system by James's timidity, which directed him rather to rely upon Elizabeth's statutes than ​disturb the mass of lower classes by progressive severity or restraint.
James found, that in despite of all previous management, there was a very close contest for the situation of Speaker. The rival candidates must appear equally remarkable to posterity Sir John Everard was an Irishman of ancient English descent, extensive landed estate, and who had held a judicial office with integrity and talent; Sir John Davys was an Englishman of lively genius and universal knowledge, but unknown in this country beyond the circle of the Castle or four Courts, and a legal adventurer, whose property consisted of abbey grants, or a portion of confiscated lands. If the Court determined to uphold their favourite by weight of prerogative, or the admission of improper votes, Opposition seemed to forget by a premature act of secession, the parliamentary objection which lay to the admission of an Attorney-General at that time as a private member; for in 1604 it was resolved in England that the Attorney shall in that Parliament remain, but no such member to serve as a member after. In Ireland the preceding indulgent practice had never been adopted by any Parliament and Sir Lucas Dillon, an Irish Attorney-General, did not sit in Sydney's time, but attended as an assistant to the Upper House, and when called upon as an adviser to the Commons, An appeal was made to the King, who precipitately and obstinately adhered to Ministers, though his affected inquiry savours of a doubt as to the greater number of voters.
His second reference is characteristic of James. An examination was to be had whether any and how many of Everard's voters spoke no English, or understood the Bible. Had Nelson lived under such a monarch, the Sound or the Nile would not recommend him to employment more certainly than a mixed portion of courtly and scholastic craft. As the landed settlement of Ireland required an enlightened legal establishment, the judicial character through James's reign corresponded with the Royal engagement at the commencement of his government. The Judges were, without exception, able men, and merited ​general respect for unbiased integrity. The number of judges in each Irish Court was fixed to three, and in England occasionally to five, that an uneven number might prevent the delay or interruption of business. The salaries of Irish judges were however too trifling, and looked for occasional increase to the bounty of the King; yet eminent English lawyers were induced to fill such stations, but landed grants from the Crown made ample compensation. When this redundancy was disposed of, we find in subsequent reigns persons sent occasionally from that country of an inferior cast and character.
We are now entering upon a reign of singular art and misfortune, in which struggles for power were conducted by men in different parties, memorable for eminent talents; however, a majority of them in each island were trained to legal pursuits, or acquired no small proficiency therein. During the period which led to this sanguinary scene there was an active president in the English and Irish Cabinet who invigorated the whole, and paved the way for an extensive and inveterate civil war.
As law was to be moulded to new purposes, its professors and their imputed principles were to Strafford and Charles objects of constant solicitude and care. An hereditary sameness marked the members, as well as the legal system, in England. Ireland was habited in a different manner, and its new Viceroy incessantly laboured to distinguish this island by tyrannic variations from English law, or subversive of its acknowledged or established principles. The unfortunate class of Irish judges had many difficulties to encounter: an hasty and indiscriminate compliance with the Castle laid them at its mercy, and prevented the well known power of directing an occasional connexion therewith to family convenience. Stern and unbending integrity ensured dismissal, and exposed an unprotected individual to exertions of perverted prerogative and unqualified tyranny. Strafford's vanity led him to think that the effect of his principles would make Ireland to lasting ages a conquered kingdom, an introductory theatre for successful tyranny, and a strong military post to awe and repress British freedom. As an ​example to men of inferior weight and talents, he commenced his career with two judicial persons, the Chancellor and the Earl of Cork; by this a double point was gained—men of honesty and courage were humbled, and an encouragement held forth to professional apostasy and vice. This oppressive Viceroy well knew that Government must divide the spoil of plundered subjects with the criminal ministers who executed these horrid plans. If firm or honest judges met reprobation and punishment, the complaisant and tyrannic seemed entitled to encouragement or reward.
Four shillings in the pound on a composition for defective titles was given to the Chief Justice of the Common Pleas and the Chief Baron, which Strafford, a skilful balancer of judicial trade, declares was well laid out. Encouraged by this successful precedent, the same bounty was held out to the Court of Exchequer in intended exactions upon recusants. Can we be surprised that treason and civil war soon afflicted the realm, when a Viceroy thus sapped the unfading pillars of Royal authority, humanity and justice, and influenced legal priests to stain law's consecrated altar with the property and blood of innocent fellow-subjects. The Chief Justice of the King's Bench and two other Judges were proof against all his assaults, and though honoured with hearty Castle hatred, the tyrant was afraid to remove them.
The pride of patronage induced him to import a complete colony of dependent minions in the civil, clerical, legal and military line—such persons proved the sincerity of their principles by becoming successful adherents to Oliver Cromwell. Thus Strafford's mistaken but arbitrary policy contributed to lead Charles to the block, and continue his children in exile.
The statute book was loaded, under Strafford's viceroyalty, with a singular exhibition of legal surplusage—Englishmen were naturalized by Irish Acts of Parliament. This Viceroy increased the number of sergeants-at-law, which rank in preceding reigns was confined to one lawyer, as that degree was never conferred in Ireland in the ordinary way, nor any limitation to ​practitioners of that class in the Irish Court of Common Pleas the ancient name of King's Sergeant was then disused, and the Prime and Second Sergeant became the accustomed distinction of title; the precedence of the former remained however untouched and both were considered circuit judges, for we find that about this time the Second Sergeant, Catelyn, died on circuit at Trim; Strafford immediately ordered the Prime Sergeant to finish in Catelyn's room, and this in opposition to the Chancellor's recommendation of another. It is true he did not slander the Prime Sergeant, (afterwards the well known Sir Maurice Eustace,) but merely said, that he had not necessaries to go, and the other gentleman lived near Trim: now Eustace's residence at Castle Martin was not thirty miles from that assize town. To such awkward shifts does a lust of patronage and appetite for jobbing reduce even an able man. Strafford persevered, and upon principles in which I heartily agree with him, as that sagacious statesman added, that Eustace was equipped with the indispensable necessaries of a circuit judge, learning and integrity. Thus that rank stood and was constantly filled by accomplished men. In the year 1682 the office of Third Sergeant was added. Strafford's Solicitor-General was an unprincipled native, who was obliged to act under an Englishman whom he had imported.
Richard Osbaldeston became Attorney-General of Ireland and died in that office. His successor, Thomas Tempest, succeeded in 1640. The son of the former, George Wentworth, a near relation of Strafford, and the heir of his favourite prelate Bramhall, were called to the bar under Cromwell's usurpation, concealing an hatred to the ruling powers, from attention to property or a prospect of personal promotion.
In each kingdom contending parties professed an attachment to the ancient constitution, but, pressing principles to extremes, they subverted that venerable fabrick. Providence permitted an obscure faction of selfish hypocrites and unprincipled fanatics to scourge an humbled community, and render servitude itself more galling by the mean instruments employed in its support. The usurper's criminal code was as little calculated to dispense ​justice with mercy, as his adopted civil system to unite protection with liberty. In trials of either kind, that first and eternal rule of justice which presumes innocence was exploded, and individuals whose lives or properties were attacked, stood presumptively guilty, from religion, residence, or connexions. The common law, however, merits this memorable applause; no court could be constituted under its forms sufficient to enable the most abandoned judges fullly to execute the preceding schemes; commissioners were therefore appointed in a civil and military dipacity, with indefinite powers to exercise criminal equity, under which plausible, but deceitful term, life was sucoessfully attacked and property rendered completely insecure. We find the criminal advisers of Strafford in the foremost, rank; wretches, whose crimes provoked impeachment in 1640, were so successful in apostasy and treason as to hold similar or higher offices under the republican government, and the usurpation of Cromwell.
At this eventful period, William Allen, Adjutant-General and Commissioner, or prosecutor of forfeited estates, was actively engaged in Ireland. Born in the humblest class of the people, he early signalized himself by his intrepidity amid the commotions of London. This conduct attracted the patronage of leading men, whereby he was enabled to attain the rank of Major at the time of Charles's murder; his known principles made Cromwell eager to engage him as a confidential servant; under such guidance he came with a powerful patron into Ireland, and even served in the war against Scotland. This afflicted country also furnished a theatre for the active and continued exercise of all his vice; nor was Cromwell indisposed to acquiesce in Allen's desire to settle in Ireland. An useful satellite was thereby provided for, and an intelligent spy fixed in a proper and necessary situation. His cruelties did not disable him from that service, as his business lay not with the natives, but the republican Commissioners and Generals. Crimes at which the furious temper of Ireton and humane zeal of Ludlow revolted, were rendered familiar to the public eye by this protected ruffian. The hapless Papists, were hunted ​like wild beasts; nor was the conscientious loyal Protestant treated with less severity. Free quarters did not give to the soldiery food or raiment, but accumulated property to the commander by the terrors of its infliction. Allen so far resembled Kirk or Jeffries as to make the indulgence of cruelty an instrument of wealth. His views of property are thus faithfully described by a private letter:—
"We have here a great General Council to satisfy the arrears of our army. Pray for us, that now we come to possess houses we have not built, and vineyards we have not planted, we may not forget the Lord and his goodness to us in the day of our distress."
The reader can determine upon Allen's official integrity as a commissioner of forfeited estates by the transport which accompanies such enjoyment, and the religious hypocrisy interspersed therewith. In whatever contempt or detestation the reader may be inclined to view the actors in such guilty scenes, certain resolves shew how difficult it is to eradicate from the human breast a reverence for virtue and an attachment to existing law.
"Mr. Justice Dongan survived his brethren on the Irish King's Bench in 1648." When the republican flag was boldly unfurled, and the proscription of one king followed the murder of another, this man resigned his station, though the Chief Justiceship was offered to him, (for his talents and integrity were universally acknowledged,) and the new government wished to avoid the slur which the retreat of an undoubted patriot and upright judge must occasion. Wealth and power were balanced against poverty and its attendant train—the former lost their usual attractions when incompatible with personal honour; but Dongan was doomed, by fines for political delinquency, to feel the pressure of want. On the restoration, whilst Cromwellian apostates were continued or promoted, Dongan was, after a year's delay, made a Puisne Baron of the Exchequer, without one acre of land to reward his stern unbending virtue.
William Basil was Attorney-General previous to Cromwell's usurpation, continued during the protectorate, and succeeded ​Pepys as Chief Justice. His entry on the King's Inn's Roll is Attorney-General to the state: it can scarce be called a blemish to transfer allegiance from such a government to Oliver Cromwell. His services and situation enabled him to acquire large property, a considerable part of which was reclaimed by the legal owners at the restoration; thus the village of Donnycarney reverted to the Corporation of Dublin, and which Basil obtained as a bribe on the settlement in 1653.
Steele was Lord Chancellor of Ireland; he had been Recorder of London, Chief Baron in England, and was appointed counsel at the trial of the unfortunate Charles. Some of his speeches prove him a lawyer of ability, whilst his personal character was that of a proud, crafty, insincere man: he was raised by Cromwell, (if it be not a contradiction in terms,) to the rank of a republican Lord. The confiscated estates had been completely disposed of before this man came to Ireland, and Chancery had scarce any business but what flows from the common law side, so that Steele could not enrich himself even by the property of suitors through the medium of surrounding satellites ; his ambition and avarice were therefore bounded by state confidence and salary; this gave him a timely view of the Restoration, and he secured his personal safety by betraying the secrets of Henry Cromwell to Clarendon and Ormond.
Pepys was Chief Justice of the Upper Bench, to which situation he had been removed from the station of Puisne Judge in England. Obscurity is merit in a period teeming with every vice which can flow from irreligion or hypocrisy. We do not hear of Pepys as a judicial bloodhound, soliciting the properties of convicted criminals, let us therefore presume him reasonably innocent, and transfer some respect to the father of Pepys, secretary to the admiralty.
Sir Gerard Lowther, Chief Justice of the Common Pleas, died in April 1660; he acquired a large landed property by steering with unprincipled craft through the boisterous ocean of cotemporary troubles, and dying without issue, left it to relations ​or friends; he was succeeded by Cooke, the Solicitor for the Commons on the trial of Charles.
Cooke's first Irish destination was that of a provincial justice then Puisne Judge, from which o6Sce he was raised to the rank of a Chief Justice on the eve of the Restoration.
Chancellor Steele made his peace with the new government by betraying his wretched colleague, who had offended beyond the possibility of forgiveness by the strength and sincerity of his zeal against the Royal cause, he was therefore selected as an object meriting capital punishment The theatre of his early treasons was reviewed by him for this melancholy purpose; accident also gave a companion at trial and execution fit to second his enthusiasm—the famous Hugh Peters, whom Cooke thus disinterestedly describes in a pamphlet published about the year 1646. "A man of pure evangelical spirit, who goeth about doing good, and may be deemed a looking-glass for others." These fellow-sufferers did not forget the good things of this life in pursuit of religious or political visions. So early as the 20th of November, 1646; a considerable estate in the parish, of Church Honnybum, and county of Worcester, was granted by ordinance of Parliament to Hugh Peters, minister of God's word, and his heirs. Cooke was probably animated by the success of Peters to similar practices; it remained, however, for this distracted country to afford him a landed settlement; hither he came, under the patronage of Ireton, and as that staunch republican condescended to become Lord President of Munster, Cooke deigned to be a provincial Justice in that court Though confiscated lands were to be sold for public debts, or given to debenturers, and the faith of Parliament pledged thereto, regicidal merit superseded the rules of public law and private honesty; an house in Waterford, and two plowlands and an half within the liberties of that city, formed part of his reward: nor did he limit his ambition to the banks of the Suir, the ​harbour of Cork seemed better suited to his expanded genius; I therefore find that the three plowlands of Barnehely were added to the traitor's spoil. The reader will not conceive it improper to review this traitorous judge as an author.
During the preceding troubles ancient law and established religion gave great disgust to arrogant innovators. It required some delay and difficulty to attain a perfect knowledge of either, though little learning and less judgment were sufficient to exaggerate the prominent abuses or presumed imperfections of these social systems. A fallow and vulgar appeal of this sort was published against the practice and profession of the law. Cooke answered the virulent libel in a tract, which for legal depth, classic taste, and extensive learning would not disgrace Selden, Somers, or Hale.
The Chief Baron Corbet attracts our attention; a wretch memorable for corruption and tyranny, without any personal good quality or literary talent to balance such enormous crimes. This obscure and infamous man was regularly bred to the legal profession, but long discontinued its practice. His broken fortune required a situation, and the party gratified that necessity; he therefore moved early in a subordinate military rank, and rose therein with a tolerable character for courage and skill. Cromwell's piercing eye observed that by his conduct, situation and talents he would become a proper associate to those outcasts of every party, with whose aid and exertion he hoped to strengthen his position in a secondary station, or even attain the full measure of a boundless and criminal ambition.
Ireland seemed the hereditary seat of courtly adventurers, and lay exposed at this period to the republican band. Miles Corbet was therefore permitted to repose from military toils in the important station of Commissioner for civil affairs. The kingdom and its inhabitants having been tried, surveyed and reviewed through every class and in its remotest districts, the office was abolished, and a settled peace as to past crimes or confiscated property proclaimed by authority of Government. Compensation had not then been sanctioned by the legislature, or ​reduced on common occasions to systematic practice. Corbet's keen judgment supplied that defect, and blends in one luminous act the craft, corruption, and unexampled presumption of those upstart and innovating usurpers; he modestly solicited and obtained the station of Chief Baron, even in opposition to the Irish Lord Deputy, for in 1655, when the four courts were to be reestablished, Deputy Fleetwood sagaciously remarked, that in his opinion two courts of justice, the Chancery and Upper Bench would be sufficient, and causes formerly cognizable in the Common Pleas be tried in the latter. He added, with suitable official modesty and lust for patronage, that he could offer six or more fit judges for the courts of justice. The Common Pleas and Exchequer were to be buried by the fiat of this arbitrary enthusiast: the lock of the common law and the established key of the treasury, (to borrow the phrase of Lord Coke,) must melt beneath the pressure of a republican talisman, nor leave a trace behind. The Deputy shewed himself a weak statesman, and his employers treated the advice with suitable contempt.
Corbet became Chief Baron. The last effort of this extraordinary man was to puzzle the Judges about the doctrine of peremptory challenges, and the regularity of the form by which his attainder was brought into the Court of King's Bench. He was led to the one point by the authority of some ancient and ill-considered cases, and on the other it may be doubtful whether the law, as it then stood, was not with him; an intelligent people were, however, fully satisfied of two things—that he was the person named in the attainder, and that his crimes merited death; which, adds an eye witness who reported his case, the prisoner met with as little concern as he shewed in the court, or at the perpetration of the treasonable deeds.
The modern town of Kilworth and the adjacent district of the Condons was divided between Lord Deputy Fleetwood and the Chief Baron. These political rivals had even a dispute about the change of its Irish appellation, Clogleigh; finally the Lord Deputy triumphed, and the seat of his nativity prevailed: thus the name of a Leicestershire plain was transferred to an ​Irish mountain, and exhibits a permanent record of their crimes. The other Judges were either continued and promoted by Charles, or permitted to enjoy the fruits of treason in private life.
Cromwell's administration suppressed the rank of Sergeant in Ireland. King*s Sergeant bore too emphatical a reference to an abdicated title for innovators or regicides to uphold it as a part of the legal system; no such officer appears during the usurpation, though engrafted on the Irish constitution from our earliest records. The Attorney-Generalship was vacant, and an amnesty granted to Shapcott, the Solicitor-General.
At the Restoration, Mountrath, Orrery, and Sir Maurice Eustace were the Lords Justices, and Ormond finally appointed Lord Lieutenant. The law servants of the crown in England did honour to the discernment, and reflect lasting credit on the great Earl of Clarendon.
Bridgeman, Hale, Palmer, and Finch were men calculated to dispense the English law with integrity and enlightened skill; nor was the interest of Ireland unattended to in a similar arrangement; Sir Maurice Eustace, a man of respectable family, unblemished reputation, and extensive connexions, was appointed Chancellor.
Sir James Barry, a Baron of the Exchequer, an experienced judge and able statesman, was appointed Chief Justice of the King's Bench, and created a peer by the title of Lord Santry.
Sir John Temple, the Cromwellian Master of the Rolls, was continued in his office. I willingly believe that Temple rendered essential aid to the Restoration, and merited amnesty, but not confidence.
Justice Donnellan was created Chief Justice of the Common Pleas: Bysse, Recorder of Dublin, Chief Baron, a man useful to every party which employed him, and by no means scrupu-lous in his conduct. He obtained in the late troubles a part of Preston's Inn, near Cork Hill, whereon he built a residence, known by the name of the Chief Baron's House, until subsequent city improvements caused its demolition.
The law servants of the crown were all Irishmen, as were a ​majority of the preceding judicial characters. Englishmen of the first class did not look for such situations, and ministers adhered too strongly to the interests of their master to comply with the solicitations of inferior persons. An early and applauded act of the new government was to restore the First and Second Sergeants to their accustomed rank. Sir Audley Mervyn, Speaker of the House of Commons, was appointed Prime Sergeant; his tried talents in a civil and military line entitled him to such a place, an office already filled by three speakers, and which had been held (until the usurpation) by Sir Maurice Eustace, the new Lord Chancellor; since that period, if a few weak or worthless men have been Prime Sergeants, be it remembered, that the legal talents of Bernard and Singleton, the eloquent powers of Hutchinson and Burgh were displayed in that official situation, and the full union of both perfections in the person of Malone. The Second Sergeant's salary was at this time also increased, and permanently fixed upon the establishment.
Among the Judges were Sir Jerome Alexander, Second Justice of the Common Pleas, and Sir William Aston, Second Justice of the King's Bench; they had a curious dispute about precedence. The King's letter for the latter bears an earlier date than that for Sir Jerome. Patents passed on the same day, and both were sworn together.
Sir Jerome Alexander was of long standing in the English Inns of Court, and published the case in a guarded, polite and learned manner, with his name annexed thereto. To this an anonymous and acrimonious answer was given. It was imputed to Sir William, as his side of the question was not only vindicated, but some presumed conversation between these legal knights introduced and animadverted upon. The well known Patrick Darcy was sent to demand an explanation, and a regular challenge succeeded on Sir William's refusal to make the slightest concession, or even to explain the feet. Though Aston figured as a colonel during the late usurpation, he declined the combat, and even applied for an information against Darcy. This ​application was refused by his brethren, as Sir William Aston did not deny in his affidavit that he wrote the libel, or was privy to the publication. Thus the breach was drawn wider, and this infamous judge brought Darcy upon his shoulders. Official robes operated like a consecrated cover to shield the wretch from an horsewhip, but he was disabled from visiting his native country until Darcy's death by the terror of such infliction. This singular event operated like a patent of indemnity for duels, and covered attempts to punish such provocations in yourger persons with ridicule. Charles, notwithstanding his contempt for the cowardly libeller, resolved to remove them both, and was with difficulty prevailed upon to withhold such just resentment. Alexander was a man of strong passion, but great integrity, and known public spirit. He even left his library, among other bounties, to Trinity College.
The foregoing trial by battle the reader may imagine settled the law and practice of precedence amongst Judges for succeeding generations, when an equally singular dispute arose in James's reign between two similar persons, in which the claimant neither shewed personal spirit nor legal judgment. He was appointed a Judge of the King's Bench in the room of its senior puisne, and demanded precedence as such without allowing the existing Judge to advance thereto. Had he not been as deficient in professional learning as in gentlemanly manners, the point was explained in law reporters, and must be obvious to every man of common sense. The contest was managed with correspondent decorum—they tore each other's robes in mounting the bench, and seconded the assault with language as brisk, adds my author, as could happen amongst women.
James was charmed with public appearances on his accession—all parties seemed to receive him with enthusiasm and confidence. It required, however, a steadier and sincerer temper to confirm and extend such disposition than this Prince was blessed with. Whatever reliance James may have had in the versatile principles of Judges appointed by his brother, his feelings suggested the great reluctance with which men exercise politics or ​law to subvert their religion ; the Bench must therefore undergo a change, nearly as extensive as what was deemed necesary at the Restoration. The Chancellor was a Protestant prelate—such service could not, therefore, be expected from him; his mild manners and acknowledged integrity, far from securing him in office, rendered a removal the more necessary. The selection of a successor was not from the eminent men of either kingdom; the King appointed a loyal gentleman of agreeable and social manners, but equally destitute of legal talents or private fortune; the former defect it was thought must render him subject to the management of Popish Judges, and the latter necessity ensure an acquiescence in the most criminal measures; his integrity, however, proved superior to personal distress, and once more made him a poor and private man. His successor was a Roman Catholic, and a reliance was had thereon, coupled with a knowledge of his personal character.
A majority of the Popish Judges then appointed were eminent for legal knowledge and irreproachable in private character; had their duties been confined to the proper station it may be considered a proud æra in Irish jurisprudence, but their Sovereign exacted different services, whereby he tarnished their characters and ruined his own. His first attempt was to initiate them in Cabinet mysteries at home, and then degrade his policy by sending for them as ambassadors upon state affairs. Even the English populace shewed amidst the irregularity of riot the feelings and discernment of a free and enlightened people; they pursued the traitorous missionaries, and, fastening potatoes upon poles, exclaimed with merited derision, "Make way for the potato ambassadors." This lively ridicule increased in their progress from the Tower to Whitehall to the most settled abhorrence, so that it was with the utmost difficulty civil and military authority could protect them from national fury and hatred. Such was their success and merited popularity in the sister isle. In their judicial decisions no authenticated act of cruelty or corruption remains upon record: if additional evidence were necessary, the three principal Judges for rank or talents, Nugent ​Rice, and Daly, remained within the kingdom in possession of large properties, and armed in conscious innocence, set their personal or political enemies at defiance. Two of the Judges were Protestants who survived the revolution; even one of them was continued in office by King William; another, an English Papist, removed previous to James's abdication to Westminster, only memorable for being an incumbrance to this country and a disgrace to his own.
There were, indeed, two Irishmen amongst the group not indisposed to cruelty in criminal trials, or corruption in civil suits; however, that base and forward disposition sunk under the superior ascendancy of honest and enlightened brethren: but the great ornament of the Irish Bench during two reigns inimical to English law, both in their turbulence and calms, was John Keatinge, Chief Justice of the Common Pleas, a great magistrate, who in a slippery or stormy period exercised official station with mild manners and integrity. He was calm, patient, and humane in the trial of prisoners; clear, laborious and consistent in the discussion of civil suits; faithful to his King and country in the indulgence of political principles, and attached to God in the exercise of Christianity. Thus persecuting Protestants charged him with being a concealed Papist, whilst furious Roman Catholics were confounded at his firm attachment to the established religion. Connected with no party, and dignifying station by despising its tenure, he equally resisted the interested views of Clarendon or Tyrconnell. But the concluding act of an illustrious life must endear his name to civilized society in every age and clime. When James, cloyed with the advice of a pliant Chancellor and perjured Chief Justice, consulted Keatinge, (though that great man well knew what would be palatable to a deluded prince,) he administered honest and salutary advice. James had even sufficient good sense to feel and respect it; but that King was, from situation, necessitated to repeal the Act of Settlement.
James not only departed from the usual wisdom of English councils, but adopted the vicious practice of an Irish cabinet: judges were selected as statesmen, and priests became secret ​adviser of the crown; Christianity and law were thus perverted from useful purpose to pernicious designs.
Chief Justice Keatinge, when asked by the L. L. Tyrconnel, for his opinion at the council, Dec 24, 1688, gave it to due effect:— "That it would be vain to withstand the Prince of Orange's forces, which had met with no opposition in England, and would find their work easy in Ireland. He recounted the misfortune of the last rebellion and the consequences of another by the utter forfeiture of all their estates; that in the north the Protestants were already in arms, and would readily join with any other Protestants that came to their assistance; that the King having withdrawn himself from his people, and the government in the hands of the Prince of Orange, they must not expect any succour from England; nor had they a fund to maintain a war, the revenue of Ireland not being sufficient to discharge the public disbursements, and which would decrease daily, and therefore as I am called." and he, "to give advice upon this extraordinary occasion, so I will not be answerable for any miseries that may ensue upon your noncompliance, but exhort your Excellency to make a wise, timely and honourable accommodation, which I doubt not you may obtain for yourself and people."
The Irish soil was not trod by James until William was seated upon the throne of Britain; then indeed this country was cursed with his presence, and its extravagant loyalty abused to restore on abdicated tyranny to England and Scotland, or to confirm it here. Such were James's views in calling a parliament, to arm or tax subjects, and employ that union at his will and pleasure forms his only title to Irish gratitude and affection. There however arose one man in that assembly who had a perfect knowledge of, and an ardent attachment to, the constitution of his country. The Great Charter, Petition of Right, or Bill of Rights, would have met in him an able framer and intrepid defender. James's Attorney-General, Sir Richard Nagle, dignified that situation by exchanging its usual character for that of a stern inflexible patriot. He carried measures similar to those of 1782, and thus paid homage to the excellence of English law by ​transferring its full and complete enjoyment to his countrymen. There was one measure of Jameses reign which required instant and effectual imitation, and that consisted in an immediate removal of presumed traitors from the Bench. Such Judges as had been discarded by James, and survived the abdication, were entitled to instant reappointment; the Chancellor also deserved to be reinstated. William's first act, after the submission of Ireland, was directed to this object
The misconduct or ignorance of the Judges in an important branch of law excites surprise, and would exceed belief were not the abuse authenticated on the records of parliament. Suits by civil bill originated in the provincial presidency courts, and were upheld merely by prerogative, in violation of common law, and without statute authority. The practice was cheap and expeditious, and though hatched in the chamber of despotism, has since been wisely upheld and confirmed in times marked by a proper respect for freedom. But what had Judges to do with state policy or arbitrary improvements? Besides, the motive becomes doubly suspicious when large fees to themselves and their clerks accrue from malpractice. The Irish parliament voted, in 1692, "that the trials and proceedings by civil bills, as of late Aid now practised in this kingdom, are arbitrary, illegal, and a burthen to the subject."
In 1698, we meet a singular legal anecdote:—A dispute arose relative to county taxes and assessments, between the town of Youghal and the county of Cork. This was left to the determination of the Judges, as. the order tells us, in their private capacity, and such decision was by consent of parties to be conclusive. This proceeding must be considered a strong proof of Irish politeness, as I firmly believe it would be impossible to obtain a similar meeting at Sergeants' Inn, or to persuade that grave body to act in a double capacity.
Judicial guilt, at the close of Anne's reign, was merely not uncommon, but general. Such as were of the privy council signed a report contrary to evidence, which was laid before them at that board. The Puisne Judges concurred in this falsity ​without the warrant of any document One of that body solicited the cause in England, and exhibited to statesmen a proof, that though Irish commerce was restricted, its judges made a lucrative traffic to the crown, and by parity of reason to private parties, of the property, liberty and lives of fellow subjects. Nor had these hardened criminals or their partisans any excuse to offer, but merely pleaded great zeal against the Pope and Pretender, though nothing was more likely to introduce these foreigners than the cruelty or corruption of Protestant Judges; however, the whole group would have been removed on the accession of George L, had not one man among them made useful discoveries, and to the original crime of judicial corruption superadded the baseness of an informer. I will not exercise the feelings of a Protestant and a Whig in so partial a manner as to give an exclusive merit to all the new Judges; similar vices stained many of them with those of their degraded and time-serving predecessors; in particular, an equal disposition to haunt the Castle and receive its oracular assistance in popular or criminal trials. These suspicions have been confirmed (were proof necessary) by the confidential correspondence of Primate Boulter.
The Great Seal was taken from Lord Middleton in 1725. This event flowed from an attack in Parliament on account of an absence in England, though with leave from the crown, This last and longest visit was for sixteen months, and had been solicited on the score of ill health. If example could sanctify an evil precedent, the chancellor had many to produce, in the persons of two Englishmen, Porter and Methuen; however, some resolutions were voted reflecting on his Lordship for not stating to his sovereign the injury which the absence of such an officer must occasion, both in the Courts of Chancery and Exchequer Chamber. The plea of known ill health, or being an English commoner, did not avail as a defence, which circumstance seemed a signal for his lordship to retire, as he could not (most probably) remove the former affliction, and the shield of senatorial situation was wrested from him.
I will not guess the motives of individuals, whether they ​originated in zeal for the public good, or in a concealed movement of ministerial machinery; though it is but justice to add, that his lordship's official integrity and gentlemanly behaviour properly supported, would satiate personal malignity, and fix seem confirmed by this parliamentary ordeal, for such grounds, upon the culprit indelible disgrace. Brodrick's family seemed to overtop the house of Boyle in the county of Cork, and his lordship defeated the Duke of Newcastle at an election for a borough in Sussex—offences not to be palliated by official correctness, nor overlooked from compassion to corporeal infirmity. His lordship retired with sullen dignity, but irreproachable character; he even gave a pattern to English Chancellors of superior independence with respect to place or pension, for in that country such an officer was in 1725 convicted of corruption and tyranny; yet, every part of the sentence, save the ignominy, operated as a dead letter—the delinquent was continued a pension, and his son enjoyed a most lucrative sinecure. Sir Richard Cox, in retirement, became consoled by the depression of his countryman and rival, whilst another of the Irish party became deeply mortified
Chief Justice Whitshed conceived that the Great Seal of Ireland was his descendible right; exclusive of parliamentary services in early life, he had merit of a later date and of a different character, to second such claim—peijured zeal, and presumptuous tyrannical practice in criminal trials. The Irish Cabinet expressed a regret at not being able thus to sanctify qualities congenial with their own. This memorable man might have escaped posthumous remembrance, and directed craft or corruption to temporary convenience and personal malignity, if his judicial profligacy had not justly provoked the satiric pen of Swift. When that great man most loyally attempted to arouse torpid Irishmen to a preservation of property against fraud and indirect robbery—or to sustain their private fortunes and starving artisans by an use of domestic manufactures, honest and nervous publications were considered libellous. The Attorney-General, however, dared not file an information and look for conviction— ​indictments were therefore resorted to, in which entire business Whitshed became an interested and envenomed partisan. Each recorded transcript of English malpractice was exercised, whilst the plain principles of law were exploded or denied. If judicial purity should resemble female honour, we need not doubt that Whitshed became soon callous to the call of conscience, and gratified, without scruple or even pecuniary bribes, party hatred and personal malevolence in many private causes. His acquaintance was extensive, and included a circle of similar characters. Their cowardice or crimes often provoked animadversion, which evil passions required indulgence and sometimes a screen: the pliant Chief Justice was ever at hand, solicited or encouraged parties, and courted this infamy with such a forward approach, that his associates or dependent minions did not tremble or blush when they avowed Whitshed's previous knowledge of criminal business, and a preconcerted judicial determination. Such malpractice must often have felled of success if the Chief Justice had not had a suitable associate and humble friend in brother Boate. Thus secure of a majority. Justice Caulfield was disabled from effecting anything except a display of undoubted integrity and sound legal knowledge. Even Swift has not been sufficiently just in this instance—for the approbation of honest Judges is frill as useful in a public point of view as the keenest censure of such as are impudent or corrupt. "Whitshed finished his career by an implied avowal of guilt: he solicited the Great Seal, and on disappointment, determined to save himself from further prostitution by becoming Chief Justice of the Common Pleas.
The English Minister did not feel for the regrets of a corrupt Judge and obscure statesman; the Great Seal was therefore given to a pamphleteering partisan, who died in so short a time after arrival, that his services would be totally forgot in this country, but for the pension so long paid to his family; he was, however, a man of considerable legal talent and unexceptionable personal character, whose name has been rendered still more respectable by the classic genius of one relation, and the naval merit of another.
​Chief Justice Wyndham was raised from the Common Pleas to the Chancery Bench; a person whose conduct as Chief Judge of an Irish Court, gave a good earnest to the kingdom of the propriety of such promotion. Unlike most of his predecessors, or some of his successors, he tempered a natural disposition to justice with a correct knowledge of general equity, as exercised through Europe or ingrafted on the system of English law; his court, therefore, became an enlightened school, in which a mild and benevolent magistrate, by practice and example, animated the Bar to legal skill; he farther satisfied the nation by a marked discountenance of party views, or the personal interference of official attendants in any matter submitted to his decision. The ministerial situation of this country enabled him to exercise another quality equally correspondent to the purity and moderation of his temper.
A leading commoner managed the lower house, and upheld administration with vigour and integrity, whilst the link of official connexion with the English Cabinet was upheld by a prelate highly entitled to notice in a historical review of the legal profession. My opinion of Boulter's private virtues and public talents is guided by strict impartiality. The vices of a statesman become the more dangerous when clothed with exterior decorum, and an exercise of personal benevolence. Thus feudal ruffians consecrated crimes by donations to the church and clerical time-servers or tyrants, Wolsey, Ximines, Richelieu, and Boulter—affected to atone for injuries in each country which they managed, by an encouragement of particular charities or posthumous foundations.
The reader shall be gratified by the Primate's pen, with authentic proofs of his personal and ministerial integrity. A few quotations from that unexceptionable authority will justly supersede the fallible assertion of any man.—Page 3. "The independency of this kingdom is a very popular notion."Ib. "The parliament may fear the madness of the people." P. 11. "Whenever an archbishopric is vacant, it is necessary that an Englishman should fill it." P. 12. " As many Englishmen to be ​sent,as may be with decency." P. 17. "The English interest to be thoroughly supported. The only way of keeping things quiet is to fill the great places from England." P. 19. "No one for the future but Englishmen to be in great places. The Chief Baron to be an Englishman." P. 49. "I must own we deserve no favour here." P. 64. " Irish lawyers inferior in skill and experience to the English." P. 90. "The two Chief Justices to be Englishmen." P. 93. "If an English bishop be sent, let it not be for being good for nothing there." If so good a man could forget his duty as a prelate and minister to the people with whom he resided, what confidence ought Irishmen to have in inferior characters?
Similar sentiments operated upon the general class of imported placemen, who by misinterpretation, fraud and self interest, upheld the barbarism and hostility of both countries in their mutual administration. To such a man Lord Chancellor Wyndham cheerfully resigned the corrupt patronage and systematic support of an Irish Cabinet. In this manner the nation and its legal body were governed during the reign of George L, upon whose demise the sceptre fell to his son without any judicial or ministerial movement in either kingdom.
In 1792, Mr. John Fitzgibbon applied for a call to the bar, with a moral and literary character not only sufficient for the purpose, but a scrutiny into which must attract attention and respect Though descended from Popish parents, he understood the law too well to apply without removing the effect of such impediment. For this also a recent precedent occurred in the case of a Mr. James Roche, who was admitted a barrister in 1729. His education in a French university could not be a matter of regular inquiry, as a college degree was neither respected nor required. With the preceding protections and qualifications the reader may feel impatient to know what ground of rejection could be fairly adduced against him. It seems, ambition or lucre urged him to take and publish notes of cases determined ​in Westminster during a five years' residence in England; they bear strong testimony to his industry and diligence, and are worthy the imitation of students.
The want of a judicial fiat was considered indecorous, and even induced Lord Hardwicke to consider them as no authority, though with the candour inseparable from great ability, and the knowledge of a conemporary, he admits their accuracy. A faction circulated with active malignity the propriety of marking a man by rejection who had thus, in their opinion, committed a direct contempt against the Judges of England, and which merited the vengeance of their subordinate and subservient brethren in this kingdom. This concealed and sudden attack was even carried, and the Chancellor, Lord Wyndham, left in a minority. Had that great officer been a petulant, unprincipled, unfeeling, party man, he would gratify such a disposition by a cruel and inconsiderate assent to this measure. What would avail the complaint of a young man, no matter how meritorious, rather obnoxious to government and parliament from lineage and mode of education, also equally destitute of connexion or public character to vindicate the wrong? In this entire transaction Lord Wyndham had the cordial support of Chief Justice Reynolds. They resisted, from motives of justice, the attempt, and agreed in thinking, that a person performing the legal requisites enforced by modern statute law, and the ordinances enjoined by prescriptive authority, had a right to be called to the Irish bar. They were successful, and the party finally and silently yielded to the Chancellor and Chief Justice.
When the reader reflects on the excellence of Mr. Fitzgibbon's personal, political and legal character, it must inspire him with an added abhorrence of concealed, unsworn and tyrannic discretion. In this instance the voters have not been ascertained; the junior Sergeants were, however, the avowed but subordinate leaders; men whom the reader will find damned to merited in my upon historic record by the baseness of their own acts—one as a vindictive assassin, and the other as a popish discoverer; he will be curious to know whether Irish legal writers ​or thier works underwent a similar ordeal, or by what concurrence of accident they avoided the trying scene; the answer will be concise and satisfiictoiy. No private Irish lawyer ever incurred the penalty by publishing a legal report Sir John Davys and Chief Baron Gilbert deciphered with singular ability, and by a copious commentary, the leading decisions of their day. The case of tenures was also compiled by Baron Barry. The two former were Englishmen, who either had the countenance of government, or the protection of rank and character to circulate their works, and the last was a state compilation.
In 1738, Mr. Marshall was created a Sergeant, and in 1754, a Judge. A selection of that gentleman was extremely judicious; he had an active persevering mind, a warm intrepid temper, and a judgment sufficiently severe to distinguish between hollow professions and practical inclinations to tyranny. Such a person was well calculated to depress a guilty group not more by personal courage than undisguised contempt.
In the year 1739, Lord Wyndham resigned, to the regret of every honest or intelligent Irishman, having rendered a name memorable in England for wisdom, public spirit and eloquence, a subject of grateful regret to the Irish nation. His retreat was also unmarked by pension, place or reversion.
Robert Jocelyn, Attorney-General, became Chancellor; a gentleman of unimpeached political character, amiable private manners, and distinguished legal ability.
Lord Joclyn has higher and more lasting merit than obscure Chancery records usually convey. He united lettered taste with official integrity, and wbhed to redeem the darkened annals of this country from fable or falsehood. With this view he became the patron of Harris, whose industry was unabated, but which felled of suitable success from an anxious attention to the influence of existing power, and a proportioned neglect of posterity. Had the Chancellor met a lawyer of superior merit, turning from lucrative allurements to lettered pursuits, such an enlightened individual would probably be encouraged and rewarded with suitable care; yet the preceding exertion forms a ​monumental foliage, and throws a lustre round that nobleman's character. Thus, Chancellor Ellesmere is remembered with respect, not for his argument, entitled the case of Post Nati, or an important criticism on Coke's Reports, but as. the patron of Sir John Davys.
The political versatility, or imputed crimes of Shaftesbury, are forgot when we reflect that an author was formed under his shade who made "the whole internal world his own." Chancellor Bathurst's perishable imbecility is atoned for by directing official station and influence to the protection and promotion of Sir William Jones. Chief Justice Reynolds was also removed shortly after, and thereby enabled to exhibit on the English Bench, those professional talents and accomplished manners which endeared him to the malignant and unprincipled parties of this distracted land. Henry Singleton, an Irishman of superior legal talent, and equal personal virtue, filled that vacant station.
About this time two Puisne Judges were appointed from England, equally destitute of proper legal knowledge, but different indeed in every other respect. The one eminent for classic taste and scientific knowledge, the other an illiterate hackney clerk, bred in an equity office, and incapable from the confirmed meanness of early habits, to display professional skill or gentlemanly manner.
In 1756, Lord Chancellor Jocelyn died, and was succeeded in office by Chief Baron Bowes. Thus Lord Hardwicke, in addition to his personal and family fortune, was enabled to recommend to the Great Seal of Ireland successively, two friends, with whom he had been bred together in a special pleader's office.
The Court of Exchequer found in Willes a feeble and inadequate Chief Judge, who was little aided by the other Judges of the Court. This serious defect was supplied by the Herculean talent of Anthony Malone. Whilst he acted as Chancellor of the Exchequer, his colleagues enjoyed a judicial sinecure, at least in the equity line. This extraordinary man had so universally ready and accurately retained, the whole system of English ​equity and law, that its most intricate principles or insignificant rules were equally familiar to him. A natural and nervous eloquence enforced each commentary on this profound assemblage with such dignity, fluency and ease, that ordinary hearers felt surprise when sentiments classically delivered, and clearly understood, thus flowed from a legal code ignorantly represented as destitute of lettered ornament or historic strength. Providence added to such professional perfection a figure peculiariy expressive of judicial dignity, Singleton then filled the office of Master of the Rolls; had passed through the profession with merited success, and continued such excellence of character in a judicial station. Here was an opportunity of justifying Carter's removal, by assimilating the duty to English practice, and dispensing that blessing to Ireland, but no such salutary principle influenced public councils.
Thus, when the Irish Master of the Rolls died, in 1759, the nation felt the usual neglect of English administration, and the arrogance of its deputed government; that high office was given to a known absentee, Mr. Rigby, and by a tenure for life in defiance of an unrepealed statute, and without even the assumption of a dispensing power; yet in 34 Henry VIII a non-absentee clause was inserted in Sir Thomas Cusake's patent for the same office.
The reader must be curious to know what honours or emoluments accompanied or followed Malone*s unrivalled fame, especially as tides and collateral places or reversions have attached in modern times to doubtfol talents and tainted character. That great man (then Chancellor of the Exchequer) was dismissed from the exercise of judicial duty for parliamentary integrity. The rapacious secretary was for a moment awed, and did not immediately invest himself with the office. But a sufficient insult was offered to this denaded country by the intervening successor; he was a superannuated Judge, who had nothing legal about him but the name. The Exchequer Bench was not cursed with his attendance; its legal management was left to the guidance of another Englishman of equal imbecility, but whom ​truth records to be destitute of that judicial presumption which unmerited elevation and confirmed ignorance so generally assume. The ministerial arrangement was, however, exhibited at the close of the parliamentary campaign; the new Chancellor pensioned, and the secretary's retreat rewarded by the judicial appointment, rendered as permanent as an illegal patent for life could make it Thus the dose of one reign and the dawn of another was tarnished by ministerial rapine extended to the four courts, and which dared to divert two great common law officers from their original institution and end. Legal history in England furnishes no similar precedent, but deviations from justice or law are familiar to Irish readers.
In 1761, Sir Richard Aston was appointed Chief Justice of the Common Pleas, which had been (it seems) declined by the Vinerian professor. Sir Richard did not retire with composure, from this country. Grand juries and private magistrates, had frequent disputes with him on different circuits. Justice, however, warrants me to affirm, according to authentic report, that in all such instances the Judge was right, and though his manner might be rude and disagreeable, that the preceding attacks appear to have flowed from party presumption, legal ignorance, or provincial corruption. P&rliament was not resorted to; yet Sir Richard's situation became disagreeable; he therefore solicited a removal to Westminster, which was effected in the year 1765. There indeed he practised a conduct and was detected in a transaction almost equally profligate. On a motion relative to a libel in the Court of King's Bench, a barrister zealously but imprudently made an affidavit that he believed it to be no libel. This being matter of opinion, passed unnoticed by Lord Mansfield or his other brethren; but Aston's forward and corrupt malignity emboldened him to declare "that he would not believe such a man's oath." He was protected from personal resentment, action or indictment by official situation, however that shield covered him with added infamy. The barrister, though destitute of the preceding privileges, watched the Judge's secret movements, ​and succesfully detected Aston in a sale of lottery tickets presumed to be received as the wages of judicial prostitution in the memorable trials about Wilkes and Junius.
This internal evidence of guilt was proclaimed by a manly pamphlet and believed by every reader. Prudence awed the legal but valorous knight into silence, and justly exhibits him to posterity, as an official tyrant and corrupt judge. Thus at the distance of a century, two Englishmen of the same name stain the King's Inn roll, and merit the contempt or detestation of the legal body in both kingdoms.
In 1765, a new Chief Justice for the Common Pleas was sent from England, who, by authentic report, was as great an original as ever issued from a legal cell. Heaven help poor Ireland if the great seal were committed to him, or its parliament and peerage guided by such a character. The resources of trade and manufacture, financial, geographic, naval and military situation were to him alike unknown. He was however a tolerably skilful common lawyer, and a blunt, honest, undesigning many but it would be a libel upon truth to call him a statesman.
The reader will excuse two anecdotes illustrative of that character: having taken a house and dined with most of his brethren he was much surprised at his admission to chambers, and instantly told the attending members that as he was a bachelor, his house should be immediately disposed of, for the chambers were even more agreeable to him; nor was his disappointment inconsiderable, when convinced that such accommodation existed only by King's Inn's intendment, and Irish fiction of law.
On the death of Lord Bowes, the great seal was committed to persons who were not professional men, court duty was therefore performed alternately by the judges. In his turn, having completely disposed of all interlocutories and motions which were offered, he gravely rose and hoped that the auditory were pleased with his mode of doing business; adding, if the choice should fall upon me, do you not think, gentlemen, that I will make a good chancellor. The novelty of this affecting address provoked a ​smile from veterans, but juniors received it with a tempest of applause, whilst the author, unconscious of its singularity, retired like a Roman actor having proclaimed, "vos plaudite."
He was the last Englishman who filled the station of a common law judge in this country (save the late Judge Hewitt) and retired in 1770; whereas his predecessor was removed into the station of a puisne judge in the English Court of King's Bench without any pension. Irish salaries would however render such an exchange in our time a pecuniary loss; though similar removals had been the constant usage between both countries from the reign of James I.
The next event was the death of the Lord Chancellor, in July 1767. The Great Seal was placed in commission, and so held until the arrival of his successor in January, 1768. The reader will probably expect some observations on the Chancellor's personal, political, and judicial conduct, which shall be executed procul ira aut odio, and with a full sense that nos et nostra debemur morti. These remembrances may also have their use; for though the legal profession is so generally bound by precedent as to fetter, save in a few enlightened individuals, genius and political judgment, I know no body of men who attain so strong and imitative an hue of its leading members.
Lord Bowes came to this country in the train of Chancellor West. That gentleman having died the year after his arrival, Mr. Bowes had but two modes of attaining an independent station, each however sufficient to ensure him success were he destitute (which was not the case) of legal talents. He was an Englishman and might return thither, where he had a powerful patron in Sir Philip Yorke, then Attorney-General of that kingdom, or under that banner solicit Irish promotion. We therefore find him called to our bar in Michaelmas term 1725; and succeedihg Mr. Jocelyn, as third sergeant, in Trinity term, 1727. In a short time he was returned to parliament without any intercourse with constituents, or injury to his purse; the government having given to the boroughmonger, official compensation. Lord Jocelyn preceded him in all subsequent promotions, until his ​elevation to the bench. As Chancellor, Lord Bowes also succeeded Lord Jocelyn; his ability as a lawyer was very respectable, and his powers of eloquence by no means contemptible.
James Hewitt, fourth Justice of the English Court of King's Bench, was appointed to succeed Lord Bowes as Chancellor of Ireland, and took his seat in Hilary term, 1768. The reader will perceive that I am approaching my own period of time, by giving an authenticated account of Lord Lifford's promotion, which rests upon the authority of his son, my late friend, Judge Hewitt When Mr. Pitt became Prime Minister and Earl of Chatham, the express announcing that important event and his own elevation to the Great Seal, reached Lord Camden whilst in a court of justice. Having adjourned with all possible expedition, he called Sergeant Hewitt to his lodgings, and offered that gentleman the judge's place which was to be vacated by Wilmot's succeeding him as Chief Justice; Hevntt hesitated at accepting the proffered kindness, observing that a parliamentary situation might be useful in the promotion of sons—a profitable market which must be closed by the position of a common law judge, whose seclusion from political pursuits or connexions, forbad (according to English usage) any femily promotion. He however added, that the Chancellor of Ireland was upwards of seventy, and if his lordship's friendship guaranteed that office, the place of puisne judge would be taken as an intermediate step to the expected elevation. Lord Camden replied with prompt and manly friendship, that if in office, he might rely upon it, or the Great Seal of Britain would be open to his ambition. Events corresponded nearly with the foregoing assertion, for Solicitor-General Willes had interest of the highest rank, and would have been appointed, had not Lord Camden declared, that in such an event he must resign. This well timed threat had its full effect; the Irish Great Seal was given to Mr. Hewitt, and Mr. Willes consigned as a puisne judge for further improvement to Lord Mansfield and Sir J. Yates.
The preceding arrangement of men alike distinguished for mildness of manners and mediocrity of talent, gave official ​station to the immortal Dunning; a barrister who united to great professional powers, transcendant parliamentary talent, and will be admired by the latest posterity as the reputed author of Junius, and friend of Sir William Jones. The new Chancellor did not imitate his successor, or a few of his predecessors, in attempting to guide the state machinery of this kingdom; such presumption would not be tolerated by the Viceroy, nor leading parliamentary interests; besides. Chancery gave him sufficient employment. That nobleman never practised in an Equity Court, nor received a solid classic education, whence he might extract those literary powers, which render profound legal research a matter of real amusement, and enable barristers to unravel and retain law's subtlest intricacies with electric rapidity and philosophic strength. His ambition was confined to judicial and technical accuracy, which useful attainment, combined with patience, politeness, and honesty, highly entitled him to public esteem.
When the line of particular station was rendered familiar or intelligible. Lord Lifford's skill as a common lawyer, gave strength and lustre to many decisions.
The political movements of state did not originate with Lord Lifford; that wavering and slippery fame rested on different shoulders, whilst his necessary subservience to existing administration was overlooked or forgot in acknowledged purity of judicial character—a blessing truly merited by Irishmen, from the hereditary attachment and reverence which they bear to such quality.
In the year 1784, three judges were added to the common law courts, and as two died in autumn, 1783, five persons mounted the judicial seat—a number only to be equalled in modern time by the arrangement which took place immediately after the union. A symmetry with the exterior forms of English government was speciously held out, and in most instances became a veil for extensive and increased patronage. Twelve judges thus graced annual sessions, and aided by legal accuracy, the active enemies of an Irish peerage. That august body compensated ​for a long abeyance by an interference on appeals more minute and particular than what distinguishes their British brethren.
After an exclusion from the revolution in 1688, Roman Catholic fellow-subjects were admitted to the rank of barristers in 1792. For better than a century, acts of state, or Castle Chamber decrees, excluded them, as the statute of Supremacy affected practitioners,—only by an indirect and possibly overstrained construction. Superadded impediments opposed their admission after the accession of King William; several gentlemen however occasionally qualified themselves for conveyancing or chamber practice, and even became members of the Inns, whereby an instant accession of able and eminent men was added to the legal roll of each kingdom.
From the accession of James I., until the reign of George III., the three Chief Judges had equal salaries, with the exception of £100 additional to the Chief Justice of the King's Bench. There was no particular payment until the year 1656 or 60 for circuit, until which period their personal expenses and entertainments were borne by sheriffs and corporations. This became very burthensome to the latter, without being sufficiently convenient to the former. By an order from government the practice was discontinued and £50 each circuit given in lieu thereof, which was afterwards raised to £100 each circuit, and to £200 with equal conformity to the progressive value of the articles of life. On the introduction of circuits into this kingdom, sheriffs, from policy, vanity, or a sense of duty, went to an extraordinary expense in entertaining judges and their suite. The reader has seen the manner in which that abuse was mildly corrected in the reign of Charles II., much to the credit of that Monarch's good sense and the public spirit of his ministers. Irish history or custom, when faithfully related, appears like a transcript from an English record; with such close similitude do the inhabitants of each country act under equal circumstances. Let us, therefore, view how this matter stood in the sister kingdom.
The reader must know that the mischief grew to such a height ​in England, previous to 1573, as to merit the interference of Queen Elizabeth. That princess ordered her Privy Council to send a circular letter to the sheriffs of England, stating, "that the great burden and cost of said office, by the large diets of the justices of assize yearly increasing, have obliged many gentlemen meet for the office to make strong solicitations to avoid that burden;" and it appearing that the petitions of sheriffs for such expense to her Majey's Exchequer shewed that more was charged than in reason ought to be allowed; the Queen therefore determined to sustain the Judges from her coffers, and notice was given that in future, sheriffs should forbear further diet, but to assist the justices' servants in all such matters. By an act passed in the year 1796, the Judges' salaries were increased.
There was a fee, small in itself, but valuable, which resulted from civil bills, a species of suit entirely unknown in England; here a shilling was given to each Judge on a decree or dismiss, and taxed against the losing party. This profit was diverted into another course when assistant barristers were appointed. But to complete that plan, the Common Law Judges must be rendered as independent in income as the statute law had already confirmed them by tenure.
Four thousand pounds a year was assigned to the Chief Justice of the King's Bench, and three thousand five hundred pounds to the other Chief Judges, while the Puisne Judges were fixed at an equal salary of two thousand five hundred pounds, which official patronage was overlooked from the great principle whence it arose.
A material judicial arrangement took place in the year 1800. For near two centuries the English Master of the Rolls has determined causes, and been in that respect a collateral judicial assistant to the Lord Chancellor. In Ireland no similar duty was performed previous to the Union. That great measure, however, led to the alteration, and has in that respect operated to a beneficial effect It was conceived that the Irish Chancellor ​would feel it necessary or pleasant to spend some part of each session in London.
The increase of equity business bore a proportioned correspondence, not merely to the improved wealth of individuals, but to practical fraud, and intended injustice or delay; therefore two courts of concurrent Chancery jurisdiction were requisite to keep pace with multiplied suits, and administer relief here as in England. Every modern correction of Irish administration or judicial practice, clearly exhibits ancient and inveterate abuse. The legal tenure of a Master of the Rolls is admitted by the repealing statute to be during pleasure, and the Sovereign enabled to give the possessor proper judicial permanence.
The Duke of Leinster succeeded Mr. Rigby, and a peer of both kingdoms dwindled into an officer of Chancery, who had however as a predecessor, an English peer. Lord Berkeley, of Stratton. On his Grace's removal, this lucrative sinecure was divided between two Irish noblemen, to whom on this statutable settlement, adequate compensation was given. The office thus aft«%d was conferred upon a Baron of the Exchequer, whose retreat from public station met every possible respect which a learned body owed to a most accomplished brother. A statute, which enables sheriffs to pay for the lodging of Judges on circuit, was enacted in the year 1801. These officers are to be allowed by a certificate from the judges such expense, so it exceed not twenty pounds each assizes.
The Irish Lord Chancellor attended the session of 1801, but his death took place in January, 1802. The British Cabinet determined with promptitude, and did not give much consideration to the struggles of Irish party. The new Chancellor, Lord Redesdale, was not more remarkable than the office from whence he was removed. That gentleman shifted from the situation of Attorney-General in the preceding year to that of Speaker, though the office of Master of the Rolls was then vacant, and could not possibly be refused to his solicitation; but I presume that the new administration conceived him still better adapted ​for the senatorial chair, and pressed a favourite into that service. By this singular movement he exchanged the certain prospect of a lucrative and permanent equity position, for the slippery and stormy rank of Irish Chancellor, Unknown parties and a strange country were also to be tried instead of experienced friends in his native land. His public conduct exhibited an ambiguity which might with propriety induce him to confine his attention to Chancery business, and unite by this wise but unambitious conduct, national approbation of acknowledged equity experience and technical accuracy. An useful practical treatise anticipated judicial skill, with an indisposition to, and ignorance of, state business: besides, the Union rendered an Irish Cabinet unnecessary, and, in the opinion of many intelligent Irishmen, pernicious. Such hitherto subsisted as a screen between the English Government and this kingdom, to which may be attributed much domestic tyranny and discontent.
The wisdom of our constitution annexes to great offices certain ancient fees, which, whether existing under common or statute law, so far lighten the royal establishment, and give a recompense to the individual in proportion to his presumed personal labour. Places have thus, by the flux of time, shifted in emolument to inconsiderable value, whilst rank and precedence remain unaltered. The Chancellorship is, however, that high and laborious station which when conscientiously discharged claims an ample and easy recompense. That officer is not more bound to keep his Sovereign's conscience, than to preserve by precept and example a spirit of justice through the land.
The Union Act exhibits an instance of precipitancy or omission with respect to the Great Seal. The possessor was amply recompensed as Speaker of the House of Lords, and not delayed for such specific provision, or referred to a board of commissioners. Equal reason applied to preserve the office in adequate independence.
In the year 1802 it was enacted, that out of the Irish consolidated fund so much shall be paid to the Irish Chancellor as ​together with his other fees and emoluments will make his salary equal to £10,000 per annum; nor can the salary appear disproportioned to the existing wealth of the country, or a fair comparison with earlier times.
* ↑ His appointment as a Chief Justice of the Common Pleas is not noticed in the patents; he held it for a very short time.
* ↑ Father of the Earl of Clare.