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Pre-Famine
Local Administrations I
Summary of chapter. The next subject to be considered is the government of the country. For most people the local administrations of their counties and towns affected them most. Also the local courts, the local police, the local militia in their counties were of the greatest importance in their lives. It was the counties and towns too which formed the basis of the basis of the electoral system. The franchise was largely in the hands of the freeholders of the county. The sheriff was the chief officer in the county and had a role which he still has in the counties in the United States. The oversight of government of the counties was in the hands of the county Grand Juries, and the Governments in Dublin and London rarely interfered in local affairs.
i) The Organisation of Irish Society
(iv) Meetings of Freeholders and County Assizes
(v) Selection of Grand and Petty Juries
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(i) The
Organisation of Irish Society
In
this section, which follows the description of the economy, is a description of
the organisation of society. Two chapters are devoted to the affairs of the
counties, local administration, the care of the poor and sick, crime, policing,
and the penal system. The following chapters deal with central government, the
supreme authority of the realm, the monarchy and Parliament, and related
matters like legislation, elections and the franchise, and with the Irish
Government and its administration. Finally another chapter deals with the
courts of law and the administration of justice.
[Top]
For
centuries the basic units for local administration were the county and the
corporate town. The counties numbered thirty two though some were sub-divided
into 'ridings'. Despite its name the county was not presided over by a
hereditary count, but by an elected official, the sheriff confirmed by royal
authority. In the more primitive Gaelic system that preceded the county system,
local semi-hereditary rulers swore allegiance to semi-hereditary higher chiefs,
but it was commonly said that there was no allegiance without hostages. Twelve
of the counties were formed or outlined by King John in the twelfth century,
and the remainder was formed in the course of the Middle Ages. In the sixteenth
century Clare was made into a county and the O'Brien chiefs paid taxes to the
crown for the first time. James I. separated Wicklow from
The
shiring made little practical difference in local administration, apart from
the fact that the former chiefs had now to pay taxes. The sheriff was often
chosen from among the former chiefs. Nor were jurisdictions like those of the
manorial courts abolished. It is worth
remembering that practical rural problems change very little over the
centuries, and it made little difference if a man approached his local chief,
the lord of his manor, or the local magistrate regarding a stolen cow.
Corporate
towns, i.e. those whose charters allowed them to elect a mayor and corporation
of merchants formed a parallel system of jurisdiction not subject to the county
authorities. Boroughs were towns with limited jurisdictions, and Liberties were
ancient manorial jurisdictions derived from feudal lords with, like the towns,
administrative powers and local courts. Many boroughs returned Members to
Parliament.
The
government of counties was in the hands of the wealthy gentlemen of the county,
who formed the Grand Jury of the county, and from whose ranks the county
officials were drawn. The government of the corporate towns was in the hands of
the wealthy merchants. Medieval kings preferred to entrust power to men who had
sufficient real assets that could be seized in cases of maladministration,
particularly not paying the revenues of the county into the Court of Exchequer.
County officials and revenue farmers were also required to be men of
considerable substance for similar reasons. According to the ideas of the time
those who contributed most to the costs of the county were allowed the most
influence in decided how much was to be raised. [Top]
Each
county was governed or administered by a single sheriff selected and appointed
by the king, or Lord Lieutenant, from a list presented by the gentlemen of the
county. A plurality of sheriffs remained only in
The
sheriff's duties' were to keep the king's peace in the county, to execute royal
writs, or the writs of the royal courts, to apprehend wrongdoers and keep them
safely until the time appointed for their trials, to summon the juries when
legal sessions were to be held, to prepare and organise the courts for the
judges, and to execute the verdicts. In some of the lesser (county or
municipal) courts he himself sat as judge. To him the king's writ was sent to
organise and hold parliamentary elections, to preside over the voting, to
adjudicate on votes, to decide the winner, and to send notification of the
election to the crown. He was responsible for drawing up the lists of those
eligible to sit on the various juries, and was required to have at hand panels
with sufficient jurymen for Grand Jury, petty jury, and special jury functions.
He appointed many of the lesser officials in the county like gaolers and
bailiffs. He could call general meetings of the freeholders of the county and
preside over them, for example to petition Parliament, and such meetings were
specifically excluded from the scope of the Convention Act (1793).
By
1800 his duties had been considerably eroded and were to be reduced further
still in the future. At one time he had been responsible for the county militia
but this duty had largely devolved on the county governors. County coroners
were also given powers independent of the sheriff. Judgement in most criminal
cases by 1800 was reserved to the judges in assize. The high constables of the
county were responsible for the policing. The county surveyor of roads was in
charge of public roads within the county. The county treasurer was responsible
for financial affairs, and for collecting taxes. But despite these
ever-increasing inroads on the sheriff's powers the office was still on of
central importance. The establishment of county council by the Local Government
Act (1898) considerably reduced the influence of the sheriff, and by an Irish
Act in 1940 the office was virtually superseded by that of county manager.
In
The
office was one of remuneration. The sheriff had a right to forty three
different fees for the execution of various duties. The speed with which he
discharged his duty was popularly regarded as corresponding with the speed with
which the fee was paid. A sheriff might appoint bailiffs to execute writs, but
on the other hand, he might not bother. A plaintiff could then hire servants of
his own to execute the writ, but had first to write a letter indemnifying the
sheriff against any liability for injury or damage caused by the said servants
in the execution of the writ. Before 1838 the bailiff or process-server had to
hand over the writ to the person, and not on a Sunday. After that it was
sufficient to deliver it to the person's normal residence. Writs therefore
could easily be avoided by locking the doors, and not going out except on
horseback or on a Sunday, and it would take a very enthusiastic bailiff to
persevere. When the new police was formed the Government insisted that they be
not involved in writ-serving except when actual violence was apprehended. There
was a gradual tendency to substitute fixed salaries for fees.ieutenant appointed sheriffs after a recommendation from the Lord
Chancellor's office. As the sheriff was the returning officer for the county
there were many allegations that undue political influences crept into the
selection process. But the 'spoils system' which still continues in
In
the eighteenth century a Member of Parliament for the county was made a county
governor, and he recommended each year to the judges in assize a suitable
person to be sheriff for the year. Early in the nineteenth century the
Government instructed the judges to get at least three names from the
Among
the other county officers the county governor had been appointed originally to
take charge of the militia, but Petty noted in the seventeenth century that the
sheriff still maintained a rival militia. There were usually two governors in a
county, one a
The clerk was called the Clerk of the Peace,
an office for which the original qualification was an ability to read and
write, and so in medieval times was discharged by a cleric or clerk. At the
beginning of the nineteenth century the county records or rolls (rotuli) were kept in the Clerk's house,
and he was supposed to hand them over to his successor. The Clerk's duties were
to keep a record of matters concerning the administration of the county,
especially the verdicts of the courts. To him the Government sent the circulars
concerning administration in the counties, and he furnished the Government with
such information it required. He kept the registry of the freeholders, and
entered the names of those who had qualified and registered themselves,
collecting the appropriate fees. (It is not clear if he administered the oaths
as well, and collected the fee for that.) This connection of the Clerk with the
electoral register was the reason why Sir Henry Parnell objected to the appointment
of the Clerk by the Custos who was
usually a sitting member.
The
Assistant Barrister was a qualified lawyer appointed by the Government to
assist the sheriff with legal expertise in the county courts when no judge in
assize was present. He acted as chairman of the bench at the judicial sessions
of the county magistrates, the quarter sessions, and so was often called the
The
county treasurer was responsible for seeing that the county cess was collected.
Before taking office he had to put up sufficient personal sureties as a
guarantee against fraud, but it is not clear if the full sum was always
exacted. He had to make up and present the accounts of the county once a year
to the Grand Jury. By an Act of 1801 he had to send an account of the
presentments each year to the Government in
The
The
High Constable of the county was in charge not only of matters of law and order
but also for the general policing of the county. Roads, to some extent, formed
part of his responsibility especially with regard to the removal of
obstructions. The general question of 'policing' will be dealt with in a
separate chapter. Each barony had its own Head Constable, and these were assisted
by several petty constables.
The
office of coroner was an anomalous one. As the name implies his function was to
protect royal interests within the county especially where money was involved.
There could be more than one coroner in a county. The crown always claimed
finds of gold or silver (treasure trove) and it was the duty of the coroner to
enquire if an owner or heir could be found. If none were found the treasure was
claimed for the crown. The coroner was given the additional duty of determining
the cause of death if this was in doubt, including the deaths of those who died
in the sheriff's gaol. The coroner therefore acted as a kind of watchdog on the
sheriff's administration. If necessary he could summon a jury and hold an
inquest into the cause of death. As the name implies this was an enquiry or
inquisition into the cause of death, not as in common law courts an
adjudication between adversaries. The coroner could institute the enquiry
himself. The enquiry was into fact not guilt even if the jury named a specific
person as the killer. (It is not clear to whom the coroner was directly
responsible apart from the Lord Lieutenant of
In
There
were various minor county officials employed by the county such as bailiffs,
gaolers, process servers, turnkeys, criers, clerks, medical officers, and
cess-collectors. The holders of the more ancient offices were paid by fees, the
turnkey being paid a fee both to admit a person to prison and to let him out
again. In the nineteenth century it was enacted that such officials should be
paid from the county cess. The gaoler was allowed to keep his traditional right
of hiring out rooms to gentlemen prisoners. Daniel O’Connell and his
associates, when in prison, were lodged in the gaoler's own house.
About
1830 it was prescribed that the sheriff should keep a public office in the
principal town in the county to which the public should have access at
convenient times. The Clerk of the Peace, too, was directed to obtain from the
cess-collectors up-to-date lists of those qualified by income for the various
grades of jury service. Those seeking employment in an official capacity in the
county, like surveyors, medical officers, etc., were required to produce proofs
of professional competence. Literacy was made an essential qualification even
for the lowest grades of the
(iv) Meetings
of Freeholders and County assizes
The
sheriff could convene general assemblies of the freeholders of the county or
city and this was done fairly frequently chiefly to hear proposals for
presenting petitions to Parliament. There was no way of deciding if the meeting
was representative or if there was opposition to the proposals, who formed the
majority. Elections followed the same procedure with the sheriff summoning the
freeholders of the county. If the election was uncontested the sheriff declared
the proposed candidate elected. Otherwise a ballot had to be held. Possession
of freehold property in the county gave a right to speak.
The
actual government, or more precisely, consent to royal government of the
county, was entrusted to a twice-yearly assize of the freeholders of the
county. (Assize, assessment, cess, and session are derived from the same root sessio a sitting, and referred to
related things.) Assize is defined as the sitting of a consultative or
legislative body. The sheriff was obliged to summon representative freeholders
to an assize twice a year before a judge of the royal courts. Because the
judges held sessions of the civil and criminal courts at the same time the
sessions were called the assizes in the plural.
The assize of the county closely resembled
the court leet of the manor when the lord of the manor summoned the tenants to
his court. Assizes were derived from the Magna
Charta one of the stipulations of which was that the king would send judges
periodically to each county to hold local sessions in order to avoid the
expenses of following the royal courts. The king thus called the assize.
The sessions were presided over by the judge,
not the sheriff, acting in the name of the crown. He addressed the Grand Jury
on such points of civil administration he thought fit to call their attention
to, perhaps the need to stamp out agrarian crime, or to repair the county gaol.
This address to the Grand Jury was called the charge. He could reject a jury if
he considered it wrongly constituted, or reject the presentments of the county.
He was also charged by the Lord Chancellor with ascertaining the views of the
gentlemen of the county regarding the suitability or acceptability of those to
be appointed sheriff. In practice the Government in
The
Grand Jury dealt with the civil business of the county by means of resolutions,
called presentments. Such were the
voting of moneys for the construction of roads, building of gaols, payment of
officers and the expenses of the officers, removal of nuisances, maintenance of
the militia and the police, management of dispensaries and lunatic asylums, and
in general, the carrying out of all duties with which they were legally
charged. The Grand Jury was the ultimate financial authority in the county. It
determined the county rate and what the county rate could be spent on. The
It
also considered all the affidavits sworn before the magistrates in criminal or
civil cases. (Affidavit is the Latin
for 'He swore' or testified under oath.) If it found true bills (accepted the
affidavits) the accused were brought to trial in the assize courts. Otherwise
they were released. [Top]
(v) Selection
of Grand and Petty Juries
The legal governing body of the
county in
A
jury was originally a body of freeholders summoned to answer particular
questions put to them. A coroner's jury was asked to decide the cause of death,
a Grand Jury to decide on the reliability of affidavits sworn before
magistrates, petty or trial juries to decide questions of fact or guilt. They
were never asked to decide questions of law.
Before 1832 the selection to the Grand Jury
was conducted on the same principles as to the petty juries. It was left to the
sheriff to assemble juries of civic-minded freeholders as best he could. Those
who objected to the list, or any name on the list, could issue a challenge, for
example, alleging a lack of a freehold in the county. The qualifications,
according to the medieval formula, were that jurymen should be liberi tenementi (freeholders) worth quadraginta solidi (forty shillings) per
annum, who were also probi, legales, et liberi (honest, not outlaws, not serfs). In 1832 the qualification
for service on the Grand Jury was raised to £10.
The
sheriff had to compile a list of at least a hundred persons to form a panel
from which the jurors could be selected. Jury service was universally disliked.
The judges in assize were empowered to fine those summoned who did not turn up,
but they never did. If the panel was not sufficiently large to allow challenges
the assize judge could suspend the session. The order of names on the list
seems to have been at the discretion of the sheriff. When drawing up the list
for the Grand Jury he would begin with the wealthier ratepayers in the county.
If some of these expressed a wish not to serve the sheriff picked others.
Normally, for presentment sessions, the sheriff had no difficulty in compiling
his list, for there were usually several gentlemen who wished to propose
presentments from which they hoped personally to benefit. (The presentments had
to be for public purposes of course!) Grand jurors could, like other jurors, be
challenged on the grounds of inadequate freehold in the county, or failure to
take the oaths, but this was unusual. For petty juries the sheriff had a list
of those of more moderate means, and those on this list could also asked to be
excused. Catholic farmers frequently asked so to be excused if a man from their
own neighbourhood was due to stand trial. Catholics had never been excluded
from jury service. The sheriff then substituted a juror from a local town. It
was noted at the end of the eighteenth century that sheriffs in Dublin had
great difficulty in getting sufficient jurors to attend Nisi prius cases, and so they kept a list of hangers-on, nicknamed
'talismen' who, for a shilling a time, were prepared to sit on any case. It is
not clear if this difficulty of finding willing jurors persisted into the nineteenth
century. Allegations however continued to be made that especially in cases of
seditious libel the sheriff packed the jury with his talismen. There is no
evidence to support these allegations. A separate list of freeholders worth
more than £50 p.a. had to be kept in case a trial by 'special jury' was called
for.
In
The system for selecting a jury was very
informal, and we may presume that each sheriff (or indeed deputy sheriff) had a
number of 'reliables' (apart from the impecunious talismen) he could call on
regularly without causing too much ill-feeling. Gavan Duffy vigorously
denounced the system, at the same time making numerous unsubstantiated
assertions. It was more consonant with conditions at the time that the system
was haphazard rather than that any conspiracy against Catholics existed. His account of the procedures for empanelling
a jury is vitiated by his assumption that such a conspiracy existed. Theoretical standards of fairness might not
have been reached, but it would seem that the sheriffs and judges were doing
their best in existing conditions. During O’Connell's trial the Lord Chief
Justice ruled, in accordance with both law and practice, that a list of seven
hundred and seventeen names from which a jury could be drawn was adequate, even
if some (Catholic) names were omitted from the list (Duffy). People like Sir
Henry Parnell wished to remove the possibility of suspicion; people like Duffy
confused suspicion with fact.
If
a woman was sentenced for a capital offence, and she pleaded she was pregnant,
the judge issued a writ de ventre
inspiciendo. The sheriff then assembled a jury of matrons from married
women who were supposed to be knowledgeable in such matters. If the jury of
matrons agreed she was pregnant she could not be executed until after the birth
of the child.
For
trials before the judges both the prosecution and defence lawyers could
challenge individual jurors. Early in the century it would seem that the
prospective jurors were called in the order in which they appeared on the
sheriff's list, but by the 1840's a shorter list was formed by drawing names
out of a hat, the jurymen being called in the order in which their names were
drawn.
The
defence lawyers could challenge the entire array and maintain that the
sheriff's list was not adequate or complete. But Irish law did not require that
name of every qualified juryman be on the list, still less the name of every
person who had the qualifications but was never registered. Judges were
normally satisfied if the sheriff produced a list of a hundred possible jurymen
actually in attendance. Nor was it sufficient to object to the absence of
jurymen drawn from a particular social or religious group, for example,
Catholics, for this would mean affirming that no Protestant juryman would carry
out his sworn duty. When the array was challenged the judge consulted
barristers from the county in question who were present in the court. (This did
not inhibit some Catholic nationalist leaders from affirming just that.) So,
though occasionally attempted, a challenge of the entire array was unlikely to
succeed.
The
lawyers on both sides could then challenge individual jurors either
'peremptorily' or 'for cause'. In the latter case the prosecution or defence
might point out, for example, that a juryman was related to the defendant. More
important was the peremptory challenge. The idea behind this was to try to
remove from the jury people who might be prejudiced in one direction or
another. So, for example, barristers defending Catholics might challenge those
believed or known to be members of the Orange Order. The prosecution lawyers
did not challenge jurymen just because they were Catholics. They much preferred
to have some Catholics on a jury.
A particular difficulty arose in 1848 when it
was pointed out in the newspapers that if support for the idea that the armed
struggle against the Government was just was found in one twelfth of the
population, on average no jury would convict those put on trial. (Verdicts had
to be unanimous.) So naturally great care was taken by the crown to exclude
jurymen (Catholics) who were known to expressed support for Young Ireland as a
means of shortening the odds.
On two occasions, the trials of members of the
Catholic Committee in 1813 and of O’Connell in 1843, it was alleged that
Catholics were systematically removed from jury service. Yet in both cases the
allegation remained unproven. (Gavan Duffy made much of the fact that the
prosecution lawyers were shown the list of prospective jurymen sooner than the
defence lawyers. This allowed the prosecution more time to find out who the
jurymen were and sound out their opinions. But, it is not unlikely that both in
1813 and 1843 the prosecution lawyers took some advantage.) The rules for
selecting all juries, and for challenging all jurors, seem to have been more or
less the same.
Trial
juries consisted of twelve men and they had to be unanimous in their verdict.
Grand Juries and coroner's juries could consist of any number between 12 and 23
men of whom 12 had to agree. [Top]
The duties of the Grand Jury were twofold,
judicial and fiscal. Judicial duties will be described under the judicial
system.
The
procedure for bringing matters before the Grand Jury was the same in fiscal and
judicial matters. Testimony was sworn before a local magistrate, who was
supposed personally to investigate the witnesses under oath, but did not do so.
The magistrate it would seem was required not as a judge but as a qualified
commissioner for oaths. Affidavits regarding valuations and costs were accepted
without question by the magistrate. The Grand Jury was supposed to re-examine
the witnesses under oath but did not do so. It was then, in both fiscal and
judicial matters, left to the judge in assize to judge the cases. Occasionally, the assize judge did reject the
accounts, or the presentments. At the beginning of the century estimates were
vague and maps and plans were rudimentary, but the Government gradually
insisted on improving standards. Though there was doubtless some abuse and
milking of public funds, it was observed that the county gentlemen were also
the chief ratepayers and would not have tolerated excessive abuse or robbing of
one another.
At
no stage in Irish history did local government attract large numbers of capable
and public-spirited persons. Even when directly elected county councils were
formed (in 1898), and an independent state was established in 1921 the problem
remained. The Irish Free State Government finally took powers to interfere
directly, and in 1940 an Act was passed to allow the appointment of competent
county managers. (I speak here in
general, for it is likely that in Ulster the behaviour of the county gentlemen
more nearly approached that of their English and Scottish counterparts. But
even in Ulster in the 1960's before the re-organisation of local government one
might find a district council composed of the butcher, the grocer, the
coalmerchant and a few others, chiefly interested in maintaining their
contracts to supply county institutions.)
As
a general rule the county gentlemen were averse to anything which added to the
rates or cess, so time after time the Government was forced to pass legislation
making this or that mandatory. New courthouses and gaols were ordered to be
built and maintained, payment by fees was replaced by payments from the rates,
and greater care of the sick, the destitute, and the insane made obligatory.
The patience of the Government with regard to policing ran out, and a new and
expensive police force was devised in 1822 and imposed on the counties, though
eventually the Government had to take over the cost of this latter. The amount
of rates collected consequently gradually increased as the century advanced.
The
Grand Jury cess or rate was a property or land tax imposed on the various
townlands within the county. Each townland was assessed as being able to pay so
much tax. Some of these assessments were more than a hundred years out of date,
being unchanged since the seventeenth century. It seems that only tilled land (carrucata or ploughland) was counted in
some cases. In other cases land reclaimed from bogs since the original
valuation was not counted. The system was so uneven that in the 1820's
Parliament voted money for a general civil survey and a uniform valuation
throughout Ireland. The Survey is always called the Ordnance (Military) Survey because it was carried out
by officers seconded from the Board of Ordnance.
In
1836 an Act was passed consolidating existing legislation concerning the Grand
Jury. When the Dublin Corporation Act (1850) was passed establishing a directly
elected municipal body with unified powers to administer the city it was
assumed that a similar Act would shortly be passed establishing county
councils. It was not however passed until 1898.