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Legal History of Ireland

Background

The English common law tradition is the main support that helped in building up the legal system of Ireland. Ireland is often described as ‘the first adventure of the common law.’ The consolidation of the dominance of English Law by Oliver Cromwell’s military campaign (1649-1652), forced many Irish landowners to resettle in Connaught. There was brutal repression of Catholics in the form of the penal laws after the victory of Protestant William of Orange over Catholic King James II at the Battle of the Boyne in 1691. The enactments, passed during the 18th century, were aimed at disenfranchising Catholics from political and economic power. Catholics were excluded from education and their property rights were heavily restricted.

Reform

After the industrial revolution and the influential writings of Bentham and Mill, the urgent need for reform of legal institutions became increasingly apparent. Many reforms were introduced by the Supreme Court of Judicature Act, 1873 and its Irish counterpart in 1877. In order to create a unified court system, these Acts merged the administration of common law and equity. The Supreme Court of Judicature consisting of the High Court of Justice was established. The court had original jurisdiction as well as appellate jurisdiction from courts of local jurisdiction, and the Court of Appeal, which had appellate jurisdiction. 

Courts

In addition to the superior courts, there were a number of inferior courts. The court of assize was the predecessor to the High Court. It dealt with the most important civil and criminal matters. The most serious criminal offences, such as murder and treason were reserved for the court of assize. These courts exercised their jurisdiction in hearing of cases related to criminal matters and indictments.

In the civil areas, the country dealt with less serious matters than the assizes. A civil bill was the means to initiate a claim. Much contrasting to the procedure of their English counterparts. This remains the basis for many claims initiated in the county court’s successor often known as the Circuit Court.

Independence

Despite all the important reforms made, calls for the repeal of the Act of Union amplified. The Irish Parliamentary Party, led by Charles Stewart Parnell, drew support from the Liberal government on the issue of home rule. However, the trenchant opposition of Ulster Unionists and Conservatives made it very clear that home rule was not possible until the passing of the Government of Ireland Act, 1914. The Act was postponed due to the outbreak of World War I but was in any case overtaken by subsequent events. The failure of the 1916 rising, and the maladroit British response to the rising hardened the attitude of the public resulting in a landslide victory for Sinn Féin at the 1918 election and bringing in the drastic political defeat of home rule and of the Irish Parliamentary Party.

A truce was agreed upon with Britain in July 1921, followed by peace negotiations which resulted in the signing of the Anglo-Irish Treaty on 6th December 1921. This provided for the establishment of the Irish Free State, the slight possibility to form a unified Ireland, albeit with an opt-out clause for Northern Ireland. The country was now set to have dominion status within the British Commonwealth, and as for the Crown, it would be retained as head of state. The representation would be made by a Governor-General, and members of the Oireachtas. They would be required to swear an oath of allegiance to the Crown. Northern Ireland was to be kept aloof from united Ireland. In January 1922 the Treaty was approved by the Dáil.

New Court System and Constitution

Irish Free State (Constitution) Act, 1922, was passed by the Westminister. This act repealed the Government of Ireland Act, 1920 to the extent that it applied to Southern Ireland. The Constitution of the Irish Free State (Saorstát Éireann) Act, 1922, was enacted by the Dáil. It implemented the Irish Free State Constitution, based on the terms of the Treaty. The separation of powers between the executive, legislative and judicial arms of government was enshrined in the constitution. On the judicial fronts, a Supreme Court, High Court were established. Other courts of local and limited jurisdiction were also established.

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