Front Page Titles (by Subject) Subsection I.—: The State. - Ireland: Social, Political, and Religious, vol. 1
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Subsection I.—: The State. - Gustave de Beaumont, Ireland: Social, Political, and Religious, vol. 1 
Ireland: Social, Political, and Religious, ed. W.C. Taylor (London: Richard Bentley, 1839). Vol. 1.
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Influence of the English and Protestant Aristocratic principle on the Powers of the State—Hatred of the People to the Laws—A public accuser in Ireland—The unanimity of the Jury in Ireland—Why Ireland has several official Institutions not found in England.
The Irish viceroy endeavours to reproduce the image of royalty; he holds a brilliant court in Dublin, the etiquette of which is regulated by that of London; he has two palaces, a splendid staff, and his salary, with the allowances, is about 30,000l. annually.1
The viceroy of Ireland, like the sovereign of England, has a privy council; he nominates to all the public offices, which in England are in the gift of the sovereign; he has the same right of pardoning or commuting punishment; and he is equally invested with the singular power of suspending the law, under certain grave circumstances, at his discretion, for which he is responsible only to parliament.2 The Irish viceroy possesses also some extraordinary powers which the sovereign has not in England, but which the peculiar circumstances of Ireland have rendered necessary to its first magistrate.3
Until 1800, Ireland had its own parliament, consisting of hereditary lords and elected commons; for it never enters into any Englishman’s head that any human law could be framed unless by two houses, of which one should be called Commons, and the other Lords.
The legislative power of Ireland was, therefore, composed of three powers designed to balance each other, as in the English constitution. But is not the fundamental error of such an organisation, applied to Ireland, at once apparent? Is it not manifest, that these powers, instead of controlling, would mutually support each other, and that their harmony would not be a union of rival powers, but that of accomplices banded together for a single and common object, the enslavement of the people? In the days of the Tudors, the parliament did what the viceroy pleased; after William III., the viceroy did what the parliament pleased. England had full confidence in the aristocracy of Ireland, and entrusted to it the entire government of the country. It might then be said, that the laws were made in full freedom by the two parliamentary bodies that represented Ireland, but who does not immediately see that such a system of representation was a falsehood?
Who does not at once comprehend the spirit in which laws were made by those lords who, English and Protestant by birth, were the natural enemies of Catholic Ireland; and by this house of commons, which, not less English and Protestant at heart, was in reality a mere creature of the lords, though it was presumed to be elected by the people?
No one could sit in either house, unless he gave proof of his “having taken the Lord’s supper,” according to the Anglican ritual. Could such a parliament, framing laws for a Catholic country, be anything else but the representative of a faction; a mere instrument to maintain the power of a narrow oligarchy, and furnish it with constitutional means of practising oppression?
Having once established this starting point, need we be surprised that the Irish legislature, during the entire course of its long existence, cruelly tyrannised over the country, formed a selfish compact with England, of which poor Ireland paid all the costs; abandoned to England the political and commercial liberties of Ireland, on condition of being maintained in its own domination over the Catholics; subjected the people that it governed to an anti-social code, the cruel and ingenious system of which has been exposed in the Introduction; and finally, by a course of falsehood and blunders, went so far as to proclaim that there were legally “no Papists in Ireland;” in other words, that a nation was blotted from existence! The Irish aristocracy terminated its parliamentary career by an act which pictures its entire life.
One day,4 England came to the resolution that it was bad for Ireland to have its own parliament, deeming it better that the country should be ruled by laws emanating directly from herself; she therefore resolved to abolish the Irish parliament; but how was this to be accomplished? Ireland possessed the right of making laws, and who could take this right away? At the instant of the proposal, all Ireland was in movement; the parliament of Ireland was anti-national, but the right to have a parliament was a national right.5 The aristocracy itself, usually so obedient to the English government, turned restive; for it was about to be deprived of its power of giving law to Ireland.
The difficulty was great, and yet it was easily overcome. The self-same aristocracy, which at the outset disputed with England the right of taking away its privileges, suddenly abandoned them; and, in a short time after it protested against the attempt upon its life, the Irish parliament put an end to its own existence. Why did it commit this suicide? The explanation is simple; the principal parliamentary undertakers, the chiefs of parties, sold their privileges to England for the sum of 1,260,000l. paid down in hard cash, and renounced their parliamentary prerogatives. After all, what cared they for the legislative independence of Ireland, which was never their real country? Besides, the existence of an Irish parliament was not exempt from annoyance. Did it not oblige them every year to spend at least a few months in Ireland? After the union, they would no longer be burdened by this charge; some became peers of England, others members of the British house of commons; all could pass their lives in London, all be delivered from Ireland. They then renounced their rights for the stipulated price; an infamous bargain, in which the corruption of those who bought was surpassed by the baseness of those who sold themselves; a worthy end of a parliament which, during the course of its existence, was rarely independent, almost always servile, never national; and which, when condemned to perish, disposed of its carcass like a criminal selling his body for dissection.6 It was this bargain which brought about the legislative union between England and Ireland, in the opening of the present century.
Since that time, Ireland has had no parliament, but we must not conclude that she has no parliamentary representation. By the articles of union, a part of her lords sit in the English house of peers;7 and the counties, cities, and boroughs of Ireland elect members to the British house of commons;8 these members are elected by the people, according to a system nearly the same as that of England;9 and under which the Irish aristocracy formerly exercised considerable influence over the elections; but this influence, though it has not quite ceased, has been greatly weakened.
Thus, for the last forty years, the Irish aristocracy has ceased to give laws to Ireland, and this is one evil the less, no doubt; but nearly all the laws which were the work of that aristocracy still exist; and if it no longer makes the laws, it still retains their administration.
We have seen, in the Historical Introduction, that the act of union had no other effect than to abolish the Irish parliament, and confer its legislative privileges on the British parliament, which has not only continued the ancient peculiar institutions of Ireland, but has continued to give the country special laws, adapted to these institutions, though analogous to the laws of England. Thus the legislative power of Ireland has been displaced, but no change has been made in the mode of administering the laws.
Of all the general interests with which the state is charged, there is doubtless none more important than the judicial administration; let us take this as an example of the influence produced on government in Ireland by the radical defects of the aristocracy.
The judicial organisation of Ireland is precisely the same as that of England.
The four supreme courts are quite independent of those of England; they are the sovereign guardians of individual liberty, which is placed in their hands by the habeas corpus act; their jurisdiction has the same extent, they administer justice by the same rules, their independence is secured by the same guarantees, for the judges of Ireland, like those of England, are irremovable.
As in England, the Irish judges go circuit to assizes twice a year; the juries are impanelled, and the verdict given strictly in the English form. In Ireland as in England, besides the periodical administration of justice, there is a daily kind which may be called local, though administered by justices of the peace who derive their authority in England from the sovereign, and in Ireland from the viceroy.
But though the most perfect similarity exists between the magistracy charged with the administration of justice in the two countries, still the execution of this justice is very different in the two countries.
Criminal law in England is doubtless not free from faults; it has even preserved some feudal traditions which might be deemed barbarous by a superficial observer. Thus, in certain cases, the prisoner cannot be defended by counsel;10 and he cannot, even by payment, obtain copies of the informations, which the crown-lawyers may use at their pleasure. Finally, the evidence of approvers is admitted against the accomplices of their guilt. These laws are certainly rigorous, and yet, in England, the administration of criminal law displays nothing painful to the friend of humanity; in that country, mild habits correct severe laws; every accused finds in the magistrates, if not benevolence, at least unalterable impartiality. Feelings of equity, and sometimes of indulgence, animate all those who are engaged in the administration of English law; they guide the justices of peace when taking informations; they guide the sheriff in his selection of a jury; they inspire the depositions of the witness, the verdict of the jury, the sentence of the judge, the pardon of the sovereign.
See, on the other hand, the condition of the accused in Ireland. Suppose an unfortunate Irish Cathelic arrested, not for a political crime which might provoke magisterial indignation, but for some ordinary offence,—theft for instance. He is brought before the nearest Protestant magistrate,11 a man of English descent, full of contempt and hatred for the poorer classes of Irish. Now can you suppose that this justice of peace, before whom the poor Irishman is dragged, will examine the proofs of innocence as carefully as the indications of guilt? Do you think, that if the prisoner offers bail, the justice will be as ready to accept it as if the accused were a Protestant? Still the investigation is continued; it depends on the justice of peace whether it shall be fast or slow; but how can he show any anxiety to accelerate it, when he is influenced by no sympathy; when, performing gratuitous functions, he is not interested in displaying zeal; when, on the other hand, not being subject to the superintendence of a superior, he has neither praise to hope, nor censure to fear, for his conduct? It may be conceived, that in such a situation, not stimulated by the consciousness of public duties, and surrounded by absorbing private interests, he will forget what is due to the Papist, who, after all, will be safer under lock and key. In truth, the inquiry, retarded by this negligence, will not be ready at the assizes or quarter-sessions; the affair will be put off for three, or perhaps six months, and the accused must remain all that time in prison, awaiting his trial.12
That day at length comes. A hundred or a hundred and fifty jurors have been summoned by the sheriff; but, in the first place, with very few exceptions, the Protestant sheriff has chosen Protestant jurymen. Out of the hundred, twelve are to be chosen to administer the law—the panel is called—scarcely is the name of a Catholic juror pronounced when he is peremptorily set aside by the clerk of the crown.13 The accused is given in charge to twelve Protestant jurors, for the most part rich persons, equally the enemies of his class and his creed. Now what impartiality can he expect, who perceives in every one of his judges a religious or political adversary? Who can believe that such judges would be animated by the pure love of truth, which is the very first condition of justice? And moreover, how many strange obstacles beset the judge in the trial over which he presides! Frequently in Ireland the accused, being of Celtic race, speaks a language which neither the judge nor the jury, being of English race, can comprehend; hence the necessity of employing an interpreter, who translates to the judge the words of the prisoner, and to the prisoner those of the judge; here consequently is a prime source of confusion. This is not all—as every accused person in Ireland is looked upon as a victim by the people of his class, that is to say, the lower orders, false witnesses abound, and hence a new source of error is opened to the judge and jury. In the midst of this darkness it would be difficult, even with the best inclinations, to be strictly just. How then will matters stand when love of justice is not the predominant passion? For my part, I have been present at many criminal trials in Ireland, and it is impossible to describe the painful feelings with which such a spectacle filled my mind.
It is a sad truth, that, in every Irish court of justice, there are, as it were, two hostile encampments within sight of each other; the accused on one side, the judge and jury on the other. Amongst the spectators, the people is for the accused; the tribunal is supported by the soldiers, the constables, and the wealthy. As, in Ireland, the aristocracy is engaged in an open contest with the people, all that depends on the aristocracy, or sympathises with it, comes to support it on this terrible field of battle, where the strong exterminate the weak in the name of justice and the laws. The prejudices and malevolent passions of which the accused is the object, are displayed on every side; they may be heard in the accent of the judge, seen in the emotions as well as the passiveness of the jury; the very language of the counsel for the defence reveals them. It is difficult to form an idea of the tone of contempt and insolence in which the members of the Irish bar speak of the people and the lower classes. Thus, in spite of the formalities of procedure—in spite of all the legal solemnities which surround the accused in the presence of his judge, there is an inward feeling, that this is not a deliberation of judgment, but a preparation of vengeance; this lie of forms, promising equitable chastisement, but concealing a kind of vengeance, is endured; but, when the judge pronounces the terrible sentence of death, it might be deemed the signal for a fierce engagement between the party of the judge and the party of the accused, were not the court filled with armed policemen, whose presence prevents the parties from coming to blows.
In England, the magistrate sees in every accused person an unfortunate fellow-citizen, a person charged with a crime of which he may be innocent, an Englishman invoking the sacred rights of the constitution. In Ireland, the justices of the peace, the judges, and the jury, treat the accused as a kind of idolatrous savage, whose violence must be subdued, as an enemy that must be destroyed, as a guilty man destined beforehand to punishment. In England, the penal laws are sanguinary, the forms of proceeding are in some respects barbarous, but the manners of the people are humane, the jury is clement, and the judge merciful. In Ireland the penal code is more sanguinary than that of England; all the bad principles of English legislation are practised, and the magistrate is as severe as the law.14
Hatred of Law by the People.
Who now will be astonished to learn that the Irish population, which hates and despises its magistrates, hates and despises the laws of which they are the organs,15 that in Ireland this hatred of the law is universal? Who will be astonished at the horror with which any share in its administration inspires the community?16
Sentence of death was once pronounced at Waterford, the culprit was ordered for execution, but even in that country of paupers no one could be found, at any price, to perform the revolting office, and the first officer of the crown was obliged himself to hang the criminal.17
Who now will be astonished at the public abhorrence which pursues not only every complainant and informer, but also every witness in a criminal trial? Who does not see, that hence results the impossibility of obtaining witnesses without buying them? Who does not comprehend that this contempt and hatred for criminal law produces the most anti-social disposition that can exist amongst any people, the habit of having recourse to violence? Who does not foresee that this consequence of social evil might, if combined with political passions or circumstances, produce a violent revolution?
Will anybody be now astonished at the sympathy which every criminal excites in Ireland? And if matters have reached such a height that murders are committed in the noonday, persons looking on from their windows, and allowing the murderers quietly to escape; if, when the constables have arrested the guilty, the crowd will pounce upon the officers of justice and rescue their prey; if everybody believes that he will sanctify his dwelling by offering a refuge to the malefactor; and if a universal confederation exist in the land, to save from the penalty of law all those pursued by justice; who, I say, can be astonished?
The office of Public Accuser is wanting in Ireland.
The social evil whose influence is observed in the execution of justice, is not only manifested by the passions that it raises in the magistrates and those subject to their jurisdiction; it attacks also judicial institutions in the first principle of their organization, and where it does not make them fatal, renders them unavailing. Thus, for instance, the theory or custom which generally leaves to private interest the care of prosecuting for crime or misdemeanour, is the same in England and Ireland. But who cannot comprehend, that though this system or mode is exempt from peril in England, it is full of danger for Ireland?
It may be conceived, that in a society like that of England, where the sovereignty of the law, the omnipotence of the judges, and the impartiality of the magistrates, are established in all the manners and customs; amongst a people, where all is life, activity, movement,—it may be conceived, I say, that in such a country it would be possible to dispense with permanent functionaries connected with judicial bodies, to enforce the suppression of all infractions of the public peace; in such a society it might be safe to trust private interest with the care of avenging violations of the law. The citizens, accustomed to exercise their civil and political rights, habituated also to the equity of their magistrates, will doubtless be prompt to claim spontaneously the justice which is their right, and will prosecute every attempt on property, liberty, and life, with as much zeal as they assert their right to vote at an election. Thus, society will find a sure defence in the sentiment which will impel everybody to seek his own private redress. In such a country, probably, the citizens will become more skilful in protecting themselves when they will not expect official protection from any authority. Perhaps from this abandonment of private interests to themselves, a new element of power and action will cause a more imperious necessity for a knowledge of the laws, a greater skill in their application; in every heart a more profound sense of its rights, a more enlightened love of its liberty, and thus a principle of social and political power may be derived from that which was at first an imperfection, if not a glaring omission, in the law.
But what will be the consequence if no such public amnesty exists in such a country as Ireland, where private individuals, long deprived of all political rights, and almost all poor, have besides an invincible repugnance to invoke the authority of the judge; where the law as well as the judge is hated; where the feeling of right is extinct; where no confidence is reposed in justice or its organs? It must happen, that private zeal will not supply the want of public activity, and that the greater number of the crimes committed will remain unpunished from not being brought under cognizance of the magistrates. It is not merely through pity for the criminal or distrust of the judge that complaint will be hushed, it will be omitted through ignorance of the right. No prosecutions will then be witnessed but such as are instituted through passion rather than interest. Hate alone will instigate prosecutions in a country where it is too often by the same sentiment that they are tried. Recourse must then be had to the most immoral means to effect the discovery of crime. Not only will public rewards be occasionally offered to informers, but the law will be found formally consecrating the right of every indigent person to a pecuniary reward for discovering a crime, or aiding in the conviction of a criminal.18 How strange a means of inculcating justice, which violates the most simple laws of morality!
Unanimity of the Jury in Ireland.
It is in England a fundamental law of the institution of a jury, that the unanimity of its members is necessary to a verdict. Although at first sight it seems difficult to imagine any subject on which twelve reasoning men could perfectly agree without a single dissentient, still we find the principle of the jury work in England without much embarrassment; and all collisions between contrary and violent opinions end in the triumph of the sentiment which is mildest and most humane.
In Ireland the same principle exists, but how is it to be put in practice? Will you compose the jury exclusively of Protestants? Then, doubtless, unanimity will be established as easily as in an English jury. But if an Irish Catholic be at the bar, there is reason to fear that this unanimity, sometimes so difficult, may be rather too prompt in returning a verdict of guilty.
Will you, instead of Protestants, place none but Catholics on the jury? Then it is intelligible that unanimity will be easy; but this time it is for the accused Protestant that fears must be entertained. Perhaps you will compose the jury of Protestants and Catholics indifferently, the only just course in such a case. But then, how are men, separated far more by political passions and prejudices of caste than by difference of creed, to arrive at unanimity of opinion?
This is a difficulty which seems to increase the more it is investigated. Does the judge refuse to deliver the jury, and lock them up until they agree upon their verdict? Such a proceeding is a sentence of death upon those jurors whose health is not so sound as their conscience. Perhaps, seeing that there is no chance of agreement, the judge will dismiss them without requiring a verdict; in such a case, the trial not being completed, must be adjourned to the next assizes, and the accused must remain three or four months in prison waiting for a second jury, which will perhaps be no less discordant than the first.
Thus one of two things almost always happens; either the unanimity obtained is marked by passion and party spirit, or it is not obtained at all. Justice is not possible when its source is thus tainted.1920
It is thus that political and social circumstances may render a principle of civil legislation evil in one country, which has been proved beneficial in another.
How and why it has been found necessary to create in Ireland a certain number of Official Functionaries which do not exist in England.
Of all the cares which an aristocracy really anxious to govern takes charge, there is doubtless none which demands more knowledge, more zeal, and more constant efforts, than the administration of justice; and when we consider the variety of duties that devolve on justices of peace in England and Ireland,—all the usages that they must know, all the statutes that they must apply, all the objects of police entrusted to their vigilance,—the multitude of judgments that they pronounce in civil matters,—the gravity of the sentences which they have sometimes to pronounce with all the severity of judicial forms,—finally, all the responsibilities that result from each of their actions,—we can scarcely conceive it possible for large proprietors, men of business, occupied with their own affairs, and not versed in the study of the law, could discharge such complicated functions with any success. In England, nevertheless, the difficulty, if not overcome, has been fairly combated; and although English justices of the peace are neither exempt from errors nor faults, justice is never wanting in the country, and magistrates are rarely wanting at the petty sessions, where ordinary business is transacted. The spectacle presented by a court of quarter sessions in England is often worthy of admiration.
But the task of administering the law was too severe for the justices of peace in Ireland; it could not be executed by an incapable and indifferent aristocracy. It constantly happened that, on the day of the week fixed for granting summonses and other magisterial duties, two justices were not found in attendance, and the course of law was suspended for want of magistrates. Often also, when the justices of peace assembled at quarter sessions, there was not one of them qualified to act as chairman: and here it was not the absence, but the incapacity of the judge, which rendered justice impossible.
The evil long remained without remedy; the Irish continued loaded with a burden which it had neither spirit nor strength to bear, until at length the central government, taking pity on its weakness and inefficiency, came to its assistance. A law was passed in 1796, authorising the executive power to employ stipendiary magistrates, and place them in all the localities where gratuitous justices of the peace were not sufficient for the administration of justice. And to aid the justices of peace at the quarter sessions, the same law commanded the executive power to send to these assemblies a member of the bar to guide and direct their deliberations, and to assist in their judicial functions, whence he is called the assistant barrister. Although, according to law, the justices of peace are not bound to choose this barrister as their chairman, they very rarely elect any other person, so deep is their sense of their own weakness and their own incapacity.
Finally, as this aristocracy, destitute of all moral influence over the minds of the people, required the aid of physical force to produce obedience, the law has created a large corps of agents, half civil and half military, analogous to the gendarmerie of France, called the constabulary force; these are placed under the control of justices of the peace, charged with executing the mandates of the magistrates, and protecting them in their functions; and government has conferred on the chief constables the power of executing, themselves, all the functions of judicial police, which in England can only be performed by justices of the peace.
It is a sad and perilous condition for an aristocracy to be under the necessity of invoking and receiving the aid of the central government. In fact, which of the powers created for its support may not be employed to attack it? An aristocracy can only remain masters of its powers by personally exercising them; it has no real existence, and no true power, but when it brings to its functions of government knowledge and virtue. Now, how can it be skilful when it does not impose upon itself the cares of government? How can it be generous when, for both the country and the people, it neither feels affection nor sympathy?
[1.]This sum is, however, barely adequate to the necessary expenses of his station.
[2.]The exercise of the prerogative of mercy by an Irish lord-lieutenant was never questioned until the present year. It might be asked, of the expiring Orange faction as it was of Edward I.,
[3.]He can proclaim counties or baronies, and thus put them under the restrictions of the Coercion Bill.
[5.]The Union was a most unpopular measure.
[6.]One of the supporters of the Union being asked, “Will you sell your country?” replied, “Yes, and thank God I have a country to sell!”
[7.]Twenty-eight peers chosen for life.
[8.]One hundred and five commoners.
[9.]Forty-shilling freeholders have been deprived of the elective franchise in Ireland.
[10.]This law has been greatly modified.
[11.]This description of the Irish magistracy is greatly exaggerated.
[12.]In this respect the administration of justice has been recently improved.
[13.]The abominable system of packing juries was abandoned under Lord Normanby’s administration; but recent efforts have been made to revive it by Lords Brougham and Roden.
[14.]The criminal law is more penal in Ireland than in England.
[15.]Confidence in the magistracy has greatly increased of late.
[16.]Law is more respected than it used to be.
[17.]Sir Richard Musgrave, the libeller of the Irish Catholics, was the sheriff.
[18.]Grand Jury Act, sect. 105.
[19.]Such cases are now becoming rare.
[20.]See Parliamentary Inquiry into the Administration of Justice in Ireland.