https://archives.blog.parliament.uk/2016/11/24/researching-parliament-as-a-court-of-law-westminster-and-dublin-1603-c-1730-a-guest-blog-by-dr-coleman-a-dennehy/

Researching Parliament as a court of law: Westminster and Dublin, 1603 – c. 1730. A guest blog by Dr Coleman A. Dennehy

For the last two years I have been working on an Irish Research Council Marie Skłodowska-Curie Elevate project entitled ‘Competing jurisdictions: appellate justice in the Dublin and Westminster parliaments, 1603 – c. 1730. The project is an attempt to understand the judicial functions of parliament with relation to the appeals and writs of error that came before upper houses in both Dublin and Westminster. The house of lords in both kingdoms was the supreme court of their respective kingdom, but Westminster also occasionally heard cases that related to Irish disputes, cases that either by-passed Dublin entirely, or over-turned decisions that had already been made at Dublin. So whilst Dublin was a supreme court, it was not the sole court of supreme judicature for Ireland.

Naturally this was the cause of some umbrage, particularly when the cases had been heard at the Dublin parliament but were then overturned by Westminster. Heard at times when there were other concerns in Ireland relating to efforts at direct rule by London and interference in currency, trade, and legislation, the decisions by Westminster became more symbolic than they should have been. The result of one such case (Annesley v Sherlock, 1718) was An Act for the Better Securing the Dependency of the Kingdom of Ireland on the Crown of Great Britain (1719), passed at Westminster in 1720, and better known as the Declaratory Act (how we date acts is another story for another blog post altogether!!). This stipulated several aspects of constitutional law relating to Ireland and the ever-growing imperial parliament at Westminster, in particular that Britain could legislate for Ireland, that the Westminster lords were the final court of appeal for Ireland, and that the Dublin parliament had no judicial competency in appeals or writs of error.

Over the course of the period under consideration the years after 1690 see a great increase in Irish cases that were appealed to Westminster. It is not immediately apparent why this is the case. Most of the cases in this period relate to the ownership of land, but then wealth is generally the prime motivation when people resorted to the civil law in Ireland in the period, and at this stage, much of the wealth of Ireland was tied up in land. There were occasionally cases heard at Westminster relating to Ireland from before this period, and sometimes they are of real importance, such as the over-turning of a court of castle chamber verdict against Lord Loftus of Ely in 1643.

My study looks at all aspects of this process of hearing cases – the legal procedures of the court (as the upper house of parliament was) and also the political ramifications of the changing dynamic of this relationship. The Parliamentary Archives, therefore, hold many of the central records to this study. As one would imagine, the judicial series (Parliamentary Archives HL/PO/JU) contains most of the pertinent material along with a lot of material from the Main Papers (Parliamentary Archives HL/PO/JO/10). Over the last two years, I have spent many happy hours poring over the printed cases (also available in other libraries), the initiating petitions, the responding documents, and many other ancillary records there might have been. Some are typically sized paper records similar to today’s standard A4, but there are also some very large parchment petitions and Latin writs of error that can roll out to in excess of eight feet. There are also some high-constitutional papers of interest, such as a dossier containing detail on precedents for hearings of Irish cases in Dublin in the years before the 1690s constitutional fall-out.

 

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Petition of Ellinor Cusack, read 6 April 1714. Parliamentary Archives, HL/PO/JO/10/6/238/2

 

These papers do not just excite the dry and dusty legal-historians such as myself. Papers on property disputes of Irish claimants, for example, can tell us much about the history of an estate, a family and their relationships over several generations, the role of women and marriage in the fortunes of families, child custody (which features in at least two cases), and how the penal laws in Ireland played out in reality. It also gives us a very good idea of how the various courts in Ireland worked, as we do not have a great amount of source material on these courts otherwise.

Dr Coleman A. Dennehy is an Irish Research Council Marie Skłodowska-Curie Elevate Fellow based at University College London and University College Dublin.

 

 

 

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