Irish law

“ Irish law.—A considerable amount of testimony might be produced to prove that the Irish were and are peculiarly a law-loving people; but, in the words of the writer above-quoted, "a people cannot be expected to love and reverence oppression, because it is consigned to a statute-book, and called law."—p. 71. The truth is, that it was and is obviously the interest of English writers to induce themselves to believe that Irish discontent and rebellion were caused by anything or everything but English oppression and injustice. ”

“ It cannot be doubted that the Irish system had sprung from the soul of a people with an intense national consciousness, that it bound the various clans under obedience to one common law, that it gave to all the inhabitants, rich and poor, learned and simple, an enthusiasm for their race and country which rooted that law in their hearts, and endowed it with a tenacity of life that no political misfortune could destroy. ”

“ Though the Parliament of 1782-1800 was little more than a Pale Parliament, in which the mass of the Irish people had no representation whatever, one of its Acts, to its credit be it said, was an attempt to mitigate the Penal Laws and emancipate the oppressed Gaelic and Catholic population of Ireland. With the partial exception of that brief interval, law in Ireland has, during the last 360 years, meant English laws specially enacted for the destruction of any Irish trade or industry that entered into competition with a corresponding English trade or industry. ”

“ An act abolishing writs of error and appeal into England, established the judicial independence of Ireland; but a still more necessary measure repealing Poyning's Law, was defeated through the personal hostility of the King. An act repealing the Act of Settlement was also passed, under protest from the Protestant Lords, and received the royal sanction. A bill to establish Inns of Court, for the education of Irish law students, was, however, rejected by the King, and lost; an "Act of Attainder," against persons in arms against the Sovereign, whose estates lay in Ireland, was adopted. ”

“ Why, the mere fact that in one hundred years eighty-seven coercion acts have been passed by the English Parliament for Ireland, in spite of Irish protest, is sufficient to establish the facts that I have adduced. Martial law, suspension of the Habeas Corpus Act, suspension of trial by jury, suppression of free speech—these have been the permanent blessings conferred on Ireland by the destruction of the Irish Constitution. No single reform, large or small, has ever been obtained by purely constitutional methods. ”

“ The druids' tribunal in Gaul and the brehons', also originally the druids' tribunal, in Ireland, was a subsidiary institution. It did not carry with it the plenary powers of the regular tribunal, and therefore relied in part on the reverence of the people for justice—with regard to which we have the most remarkable testimony borne by Englishmen in Ireland at the time when Irish law was on the verge of total abolition. And one of these writers aptly says that nothing that the Irishman does, however praiseworthy, finds favour with a set of men who are his professional traducers. ”

“ Not law but policy will decide what Irish Acts are to be placed on the Statute-Book. It must be admitted that this is the principle most in harmony with precedent if the constitutions granted to the colonies are to be regarded as precedents. No colony would have tolerated for a moment the elaborate network of restrictions in Clause 4 of the Bill of 1893, through the finely-woven meshes of which it would have been hard for any Irish legislation of an original or experimental character to pass. If we are really in earnest about setting up a Parliament on College Green, we cannot do otherwise. ”

“ This has not only made the management of Ireland an exceedingly hard thing for an English government to carry on, but it also stands in the way of any other solution of the problem. To allow the Irish to govern themselves means putting the under dog on top and the upper dog underneath. The difficulty has been further increased by a deep-seated divergence in the conceptions of law and justice. Unlike Scotland, Ireland has the English system of jurisprudence. ”

“ Look at what is called the majesty of the law on one side, and the long deep misery of a noble people on the other. Which are the young men of Ireland to respect—the law that murders or banishes their people, or the means to resist relentless tyranny and ending their miseries for ever under a home government? I need not answer that question here. I trust the Irish people will answer it to their satisfaction soon. I am not astonished at my conviction. The government of this country have the power of convicting any person. They appoint the judge; they choose the jury ”

“ I, and men like me, are held accountable for bringing law into hatred and contempt in Ireland: and in presenting this charge against me the solicitor-general appealed to history. I retort the charge on my accusers; and I will trace down to our own day the relations of hostility which English law itself established between itself and the people of Ireland. Gentlemen, for four hundred years—down to 1607—the Irish people had no existence in the eye of the law ”

“ Criminal law and procedure is one of the most important of all the branches of civil rule, and certainly is one of the most important of all its elements. This was now in Ireland to shift up and down, to be one thing to-day and another thing to-morrow at executive discretion. Acts would be innocent or would be crimes, just as it pleased the Irish minister. ”

“ It is highly desirable to avoid conflict of laws in the United Kingdom as far as possible. It must be remembered that the Statute Book has, quite apart from the Act [pg 029] of Union, bound Ireland to England by many legislative ties; there is a uniform system of industrial, commercial, and, to some extent, criminal law for the whole of these Islands—Factory Acts, Companies Acts, the law of negotiable instruments, criminal procedure, old-age pensions, and insurance legislation ”

“ Highly finished, highly technical, worked on for hundreds of years by successive commentators, it still remained the law of the people, and claimed their allegiance—an allegiance could only have been possible to a law founded on reason and justice, and expedient and efficient in practice. If we take that which in an agricultural country comes home to every peasant—the land system—the native law in Ireland was equal, enduring, and respected. ”

“ Common to the whole island was an almost complete divorce between occupancy of the land and the legal ownership of it. The whole of Ireland had been parcelled out among the invaders, and the claims of their descendants still held good in law. No length of occupation could give a valid title to an Irishman to any lands ever held by an Englishman. Even where there had never been effective occupation it would seem doubtful, whether any Irishman could claim a legal estate.
And in the districts in the hands of the colonists there was a great confusion as to title. ”

“ A stranger, who is an author—a foreigner has the same common law right of property; and no foreign book can be printed here. Such has not been the understanding in England, from which the principles to sustain the right are derived. No common law right extended to Ireland before the union. There, at all times, before the union, the works of authors, however secured under the statute of Anne, in England, were printed and published. If a common law right existed, or was supposed to exist, we should have found, in the proceedings of the Irish courts, its establishment by judicial decisions. ”

“ The dubious assumption is that the root of Irish discontent is the outraged feeling of nationality. The undoubted fact is that in Ireland, on all matters either directly or even remotely connected with the tenure of land, the law of the Courts is opposed to the customs, to the moral sentiment, we may say to the law of the people; hence the Queen's tribunals are weak because they are not supported by that popular assent whence judges derive half their authority; the tribunals of the League are strong because their decisions commend themselves to the traditional feeling of the people. ”

“ Destitution, sectarian animosities, harsh evictions, met by savage outrages, the terror of secret societies, the stern enforcement of law which to the people represented anything but justice, are phenomena of Irish society, which, as they existed before the Volunteers established the Parliamentary independence of the country, and continued to exist when Ireland was subject to no laws but those passed by an Irish Parliament, cannot be attributed to the Act of Union. ”

“ It will show how nobly the men of Irish birth and lineage have illustrated old Ireland under the benign influences of free institutions and popular government, where liberty is regulated by law, where justice balances the scales between man and man without regard to race or creed, giving to every citizen equal advantages and equal opportunities in the race of life.
A people who have done so much for the honor and glory of this great republic should feel a just pride in publishing to the world the part they have taken in the progress of the United States. ”

“ An innate spirit of insubordination to the laws has been strongly charged upon the Irish peasantry; but a people to whom the punishment of crimes appears rather as a sacrifice to revenge than a measure of prevention, can never have the same deference to the law as those who are instructed in the principles of justice and taught to recognize its equality. It has, however, been uniformly admitted by every impartial writer on the affairs of Ireland, that a spirit of strict justice has ever characterized the Irish peasant. ”

“ We must remember that the men who would have the control of the new Irish Government would be those who have spent the greater part of their lives in violent conflict with the attempts of the Irish Courts to secure respect for the elementary rights of property and of personal freedom in Ireland. Power which has been won by the open violation of every principle of English law, is not likely either to assert the authority it has lived by defying to maintaining the independence of the courts and institutions which have been its deadliest opponents. ”

“ The native Irish everywhere advanced, and English law rapidly shrunk within the narrowest limits. A Parliament, held by the Earl of Desmond in 1465, enacted that every Irishman dwelling among the English in Dublin, Meath, Louth, and Kildare, should dress in the English fashion, shave his moustache, take the oath of allegiance within a year, and assume as a surname the name of a town, of a colour, or of a trade. In the Parliament of 1480, held by the Earl of Kildare, all trade between the Pale and the Irish was forbidden by law. ”

“ He shows that the Irish have not been so placed. "Still more does justice require that allowance should be made on historical grounds for the failings of the Irish people. If they are wanting in industry, in regard for the rights of property, in reverence for the law, history furnishes a full explanation of their defects, without supposing in them any inherent depravity, or even any inherent weakness. They have never had the advantage of the training through which other nations have passed in their gradual rise from barbarism to civilization. ”

“ There are countervailing circumstances in Ireland however, which more than balance this drawback, even if it were greater than it really is. The Irish are naturally, or by habit, a migratory people, fond of change, hopeful, sanguine, eager for experiment. They have never been practically limited to one spot by a law of settlement, as has been the case with the English peasantry. They have never been enervated by a misapplied system of parish relief. ”

“ The Irish legal system, has responded well to the significance of Community law as an integrating force. Indeed we have a strength in our legal system that we should not underestimate. Alone among the twelve Member States we combine a common law tradition with a written Constitution. ”

“ In regard to the executive, he will, of course, enjoy less latitude; it is quite clear that the Imperial Government will, under this clause, find it practically impossible to interfere in purely Irish administration. The Irish Government will, of course, be carried on in the name of the Crown, and it will enjoy the same prerogatives at common law as the Imperial Government in such matters as the use of the prerogative writs mandamus and certiorari, and the immunity from actions in tort. Ireland has its own Petitions of Right Act. ”

“ Customs and principles of law, the natural growth of the Irish mind and the Irish soil, can be recognized and made the basis of legislation without bringing about the disruption of the Empire. The first Irish question that we shall have to set ourselves to face is that of land. Permanent tenure is as natural to the Irish as free-holding to the English people. All that is needed of our statesmen is that they recognize in legislation that which they cannot but admit in private talk—namely, that there may be essential differences between race and race. ”

“ Under such a constitution an Irish Government would have power to forbid or restrict recruiting for the Imperial forces in Ireland, and to raise and train a force of its own. It might establish or subsidise a religion, make education wholly denominational, levy customs duties on imports from Great Britain and give fiscal advantages to a foreign power, confiscate or transfer property without payment, and deprive individuals of nationality, franchise, liberty, or life without process of law. ”