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“The Terror of their Lives”: Irish Jurors' Experiences

Published online by Cambridge University Press:  21 July 2011

Níamh Howlin
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A commentator noted in 1881 that Irishmen regarded jury service as “the greatest burden that can be inflicted upon them … they would be delighted if trial by jury was suspended tomorrow.” He later added, “[o]f course an enormous outcry would be raised about it in the national press, and in public meetings; but jurors … would give anything in the world not to serve … because it is the terror of their lives.” Much has been written about the poor state of the nineteenth-century Irish jury system, and it is certainly true that for various social, economic and political reasons, in comparison with that in England, the Irish system appears to have operated in a way that fell somewhat short of ideal. This article seeks to provide an understanding of the realities facing the jurors themselves, and will examine their experiences of the justice system before, during, and after the trial.

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Law and History Review , Volume 29 , Issue 3 , August 2011 , pp. 703 - 761
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Copyright © the American Society for Legal History, Inc. 2011

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References

1. Report from the Select Committee of the House of Lords on Irish Jury Laws, House of Commons Parliamentary Papers 1881 (430), xi, 1, per James Hamilton QC, chairman of the County Sligo quarter sessions, para. 3282.

2. Ibid., para. 3308.

3. See Johnson, David, “Trial By Jury In Ireland 1860–1914,” The Journal of Legal History 17 (1996): 270–93CrossRefGoogle Scholar; Johnson, David S., “The Trials of Sam Gray: Monaghan Politics and Nineteenth Century Irish Criminal Procedure,” Irish Jurist 20 (1985): 109–34Google Scholar; McEldowney, John F., “‘Stand By for the Crown’: An Historical Analysis,” Criminal Law Review (1979): 272–83Google Scholar; McEldowney, John F., “The Case of The Queen v McKenna and Jury Packing in Ireland,” Irish Jurist 12 (1977): 339–54Google Scholar; Jackson, John D., Quinn, Katie, and O'Malley, Tom, “The Jury System in Contemporary Ireland: in the Shadow of a Troubled Past,” Law and Contemporary Problems 62 (1999): 203–32CrossRefGoogle Scholar; and Howlin, Niamh, “Controlling Jury Composition in Nineteenth-Century Ireland,” The Journal of Legal History 30 (2009): 227–61CrossRefGoogle Scholar.

4. See the work done in this area by McEldowney and Johnson, above, and contemporaneous commentary such as Anon., “Our Jury System,” Dublin University Journal 32 (1848): 717Google Scholar; Houston, Arthur, “Observations on Trial by Jury, with Suggestions for the Amendment of our Present System,” Journal of the Dublin Statistical Society 3 (1861): 100–109Google Scholar; O'Shaughnessy, Mark S., “The Venue for Trials, Civil and Criminal,” Journal of the Social and Statistical Inquiry Society of Ireland (hereinafter J.S.S.I.S.I.) 4 (1865):193–203Google Scholar; Dodd, William H., “Some Grievances of Jurors,” J.S.S.I.S.I. 8 (1879–85):223–27Google Scholar; and Dicey, Albert Venn, “How is the Law to be Enforced in Ireland?” Fortnightly Review (ns) 3 (1881): 537–52Google Scholar. Pamphlets written in the late nineteenth century highlight some of the more political problems with the jury; examples include O'Connor, Roger, A View of the System of Anglo-Irish Jurisprudence and of the Effects of Trial by Jury, when Individuals Consider Themselves Belonging to a Faction, Rather than to a Community (London, 1811)Google Scholar; Joy, Henry Holmes, On Peremptory Challenges of Jurors, with the Judgment of the Queen's Bench in The Queen v. Gray (Dublin: Andrew Milliken, 1844)Google Scholar; Counsel, Edward Patrick Sarsfield, Jury Packing 2nd ed. (Dublin: M.H. Gill and Son, 1887)Google Scholar; Crilly, Daniel, Jury Packing in Ireland (Dublin 1887)Google Scholar; and United Irish League, “Stand Aside,” Trial by Jury in Ireland in the Twentieth Century (Dublin: United Irish League, 1903)Google Scholar. A number of parliamentary committees appointed to inquire into the state of Ireland more generally examined some of the difficulties associated with Irish juries: see, for example, Report of the Select Committee Appointed to Inquire into the Disturbances in Ireland House of Commons Parliamentary Papers 1825 (20), vii, 5; Report from the Select Committee of the House of Lords Appointed to Enquire into the State of Ireland in Respect of Crime, Part 1, H.L. 1839 (486), xi, 1; Report from the Select Committee on Outrages (Ireland), House of Commons Parliamentary Papers 1852, (10), xiv, 438. Parliamentary committees established specifically to examine the working of the Irish jury system had no English counterpart: see Report from the Select Committee appointed to inquire into the working of the Irish jury system, House of Commons Parliamentary Papers 1873 (283), xv, 389; Report from the Select Committee on the working of the Irish jury system, House of Commons Parliamentary Papers 1874 (244), ix, 557; and Report of the Select Committee of the House of Lords on the Operation of Irish Jury Laws as regards Trials by Jury in Criminal Cases, H.L. 1881 (430), xi, 1.

5. See for example, Cornish, William Robert, The Jury (London: Allen Lane, 1968)Google Scholar; Bentley, David, English Criminal Justice in the Nineteenth Century (London: Hambledon Press, 1998), 89–96Google Scholar; Cairns, John W. and McLeod, Grant, eds., “The Dearest Birth Right Of The People Of England” The Jury in The History of the Common Law (Oxford: Hart Publishing, 2002)Google Scholar; Cockburn, James SwanstonA History of English Assizes (Cambridge: Cambridge University Press, 1972)Google Scholar; Garnham, NealThe Courts, Crime and Criminal Law In Ireland, 1692–1760 (Dublin: Irish Academic Press, 1996), 133–48Google Scholar; Green, Thomas A., Verdict According to Conscience: Perspectives on the English Criminal Trial Jury 1200–1800 (Chicago: University of Chicago Press, 1984)Google Scholar; Oldham, James, Trial By Jury: The Seventh Amendment and Anglo-American Special Juries (New York: New York University Press, 2006)Google Scholar; Schioppa, Antonio, ed., The Trial Jury in England, France, Germany 1700–1900 (Berlin: Duncker and Humblot, 1987)Google Scholar; and Hanly, Conor, “The Decline of Civil Jury Trial in Nineteenth-Century England,” The Journal of Legal History 26 (2005): 253–78CrossRefGoogle Scholar.

6. Some notable exceptions here are King, Peter, “Illiterate Plebeians, Easily Misled, Jury Composition, Experience and Behaviour in Essex, 1735–1815,” in Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800, ed. Cockburn, James Swanston and Green, Thomas A. (Princeton: Princeton University Press, 1988)Google Scholar; Peter Lawson, “Lawless Juries? The Composition and Behaviour of Hertfordshire Juries, 1573–1624,” in Cockburn and Green, Twelve Good Men; James Swanston Cockburn, “Twelve Silly Men? The Trial Jury at Assizes, 1560–1670,” in Cockburn and Green, Twelve Good Men; Browne, A., The Juryman's Handbook (London: Harvill Press, 1951)Google Scholar; Ireland, Richard, “Putting Oneself on Whose County? Carmarthenshire Juries in the Mid-Nineteenth Century,” in Legal Wales: Its Past, Its Future, ed. Watkin, Thomas (Cardiff: Welsh Legal History Society, 2001)Google Scholar; and David Seipp, “Jurors, Evidences and the Tempest of 1499” in Cairns and McLeod, The Dearest Birth Right.

7. King, “Illiterate Plebeians,” 292.

8. Seipp, “Jurors, Evidences,” 75, notes that jurors are “the unsung heroes of the common law … Jurors were always just off-stage in the pages of the Year Books, a silent unseen presence … When jurors did make an appearance, it was usually because something had gone wrong with the jury process.”

9. See Newark, Francis Headon, “Notes on Irish Legal History,” Northern Ireland Legal Quarterly 7 (1947): 121–39Google Scholar.

10. The origins of trial by jury have been the subject of extensive debate; see, for example, Thayer, Joseph B., “The Jury and its Development,” Harvard Law Review 5 (1892): 249–73CrossRefGoogle Scholar, 295–319, 357–88; Turner, Ralph V., “The Origins of the Medieval English Jury: Frankish, English or Scandinavian?” Journal of British Studies 7 (1968): 1–10CrossRefGoogle Scholar; and Macnair, Mike “Vicinage and the Antecedents of the Jury,” Law and History Review 17 (1999): 537–90CrossRefGoogle Scholar.

11. Johnston, William, “The First Adventures of the Common Law,” Law Quarterly Review 36 (1920): 9–30Google Scholar.

12. Parallels may be drawn between nineteenth-century Irish juries and problems experienced at earlier stages in England. For example Lawson, “Lawless Juries?” 124–26 cites abuses in relation to the compiling of the jury lists, and, ibid., 138 “the practical inconveniences under which jurors … labored.” Cockburn, “Twelve Silly Men,” 163–71 examines the sixteenth-century problem of jurors repeatedly serving. All of these later presented difficulties in Ireland.

13. See, generally, Vogler, Richard, “The International Development of the Jury: The Role of the British Empire,” International Review of Penal Law 72 (2001): 525Google Scholar.

14. This was provided for under an 1864 Ordinance; see Mittlebeeler, Emmet V., “Race and Jury in Nigeria,” Howard Law Journal 18 (1973–75): 88–106, 90Google Scholar.

15. Cheang, Molly, “Jury Trial: the Singapore Experience,” University of Western Australia Law Review 11 (1973–74): 120–32Google Scholar.

16. Jearey, J.H., “Trial by Jury and Trial with the Aid of Assessors in the Superior Courts of British African Territories: II,” Journal of African Law 5 (1961): 36–47CrossRefGoogle Scholar. See, further, Howman, Roger, “Trial by Jury in Southern Rhodesia,” Rhodes-Livingstone Journal 7 (1949): 41Google Scholar.

17. Knox-Mawer, Ronald, “The Jury System in British Colonial Africa,” Journal of African Law 2 (1958): 160–63CrossRefGoogle Scholar.

18. The representativeness of Australian juries in the twentieth century is considered by Chesterman, Michael, “Criminal Trial Juries in Australia: From Penal Colonies to a Federal Democracy,” in World Jury Systems, ed. Vidmar, Neil (Oxford: Oxford University Press, 2000) 136–43Google Scholar.

19. See Nancy Jean King, “The American Criminal Jury,” in Vidmar, World Jury Systems, 108–14 for a discussion of some of the problems surrounding jury composition and the representation of African-Americans on juries in the United States.

20. In New Zealand, Maori were initially barred from sitting on juries (except on mixed-race civil juries where one party was Maori), and it was not until 1962 that they became eligible for general jury service: see Cameron, Neil, Potter, Susan, and Young, Warren, “The New Zealand Jury,” Law and Contemporary Problems 62 (1999):103–40CrossRefGoogle Scholar. Disputes between Maori or criminal cases involving only Maori could be decided by juries of Maori: Report of the Royal Commission on the Courts (Wellington: E.C. Keating, 1978), 16.

21. For a history of jury trials in South Africa, see Kahn, Ellison, “Restore the Jury? Or ‘Reform? Reform? Aren't Things Bad Enough Already?’ I,” South African Law Journal 108 (1991): 672–87Google Scholar; Kahn, Ellison, “Restore the Jury? Or ‘Reform? Reform? Aren't Things Bad Enough Already?’ II,” South African Law Journal 109 (1992): 82–111Google Scholar; and Kahn, Ellison, “Restore the Jury? Or ‘Reform? Reform? Aren't Things Bad Enough Already?’ III,” South African Law Journal 109 (1992): 307Google Scholar.

22. See, for example, Stephen Landsman, “The Civil Jury in America,” in Vidmar, World Jury Systems 400–402.

23. Knox-Mawer, “British Colonial Africa,” 163.

24. Cremona, John J., “The Jury System in Malta,” American Journal of Comparative Law 13 (1964): 570–82CrossRefGoogle Scholar.

25. See Neil Vidmar, “The Canadian Criminal Jury: Searching for a Middle Ground,” in Vidmar, World Jury Systems, 231–38.

26. There was also a “confusing conglomeration” of local courts; they “were numerous and varied considerably in respect to jurisdiction, procedure and terminology”: McDowell, Robert Brendan, The Irish Administration 1801–1914 (London: Routledge and K. Paul, 1964), 115Google Scholar. These included the borough courts (known as Tholsel courts) and the manorial courts (the courts baron and leet). See also, generally, McMahon, Richard, “The Court of Petty Sessions and Society in Pre-Famine Galway.” in The Remaking of Modern Ireland 1750–1950: Beckett Prize Essays in Irish History, ed. Gilespie, Raymond (Dublin: Four Courts Press, 2004) 101–37Google Scholar, for a discussion of the Petty Sessions Courts' role within society.

27. See Bentley, English Criminal Justice, 57–58, 77 on quarter sessions in England. For Ireland, see McDowell, The Irish Administration, 116–18; McEldowney, John F., “Some Aspects of Law and Policy in the Administration of Criminal Justice in Nineteenth-Century Ireland,” in The Common Law Tradition: Essays in Irish Legal History, ed. McEldowney, John and O'Higgins, Paul (Dublin: Irish Academic Press, 1990), 132Google Scholar; Garnham, The Courts, 77; and McKenna, P.J., “On the Criminal Jurisdiction of Quarter Sessions in Ireland,” Journal of the Dublin Statistical Society 1 (1856): 276–85Google Scholar.

28. McDowell notes that Justices of the Peace were unpaid amateurs, and performed a wide variety of duties, and dealt with some questions of legal complexity. In England, the Justice of the Peace was traditionally a landed gentleman, but in Ireland, because of absenteeism, the religious divide, and agrarian unrest, there were difficulties, and in the early nineteenth century, some “unsuitable” persons served as Justices of the Peace. Although things improved somewhat in the 1820s, from 1830, Justices of the Peace were attacked not for incompetence, but for political bias. McDowell, The Irish Administration, 112. Justices of the Peace also presided over petty sessions, used for the summary trial of minor offenses.

29. Bentley, English Criminal Justice, 8, notes that “in theory, Quarter Sessions had jurisdiction to try all crimes except treason. In practice, all they tried were case of petty larceny and misdemeanour.” Although broadly similar, there were some differences as to the use of jurors at quarter sessions; for example, it was generally observed that the jurors summoned for quarter sessions were socially inferior to those summoned for assizes: see, for example, First, Second, and Special Reports from the Select Committee on Juries (Ireland) House of Commons Parliamentary Papers 1873 (283) xv, 389, per Charles Hemphill, para. 8. For the assizes, jurors were summoned from the whole county. For the quarter sessions, they came from the quarter sessions divisions, which were smaller: ibid., para. 3405–8. Procedurally, men who were qualified to sit as special jurors sat on the grand jury at quarter sessions (see below, note 31, for a description of the duties of grand jurors).

30. Huband, William G., The Grand Jury in Criminal Cases, the Coroner's Jury and the Petty Jury in Ireland (Dublin: Ponsonby, 1896), 2–22Google Scholar traces the origins and development of the grand jury in the context of criminal prosecutions. See also the Grand Jury (Ireland) Act 1836 (6 & 7 Wm. IV, c. 116). The other function of the grand jury related to local government. Presentments would be made to the grand jury at assizes for the purpose of agreeing on rates and raising revenue for local services. These would then be approved by the assize judge. See, further, Virginia Crossman, Local Government in Nineteenth Century Ireland (Belfast: The Institute of Irish Studies, Queen's University of Belfast for the Ulster Society of Irish Historical Studies, 1994), 25–41. She notes that the grand jury was both the most important and the most criticised local body in rural Ireland (25). In 1898, grand juries ceased to exist as administrative bodies, and “local government passed into the hands of elected councils.” See Bridgeman, Ian, “The Constabulary and the Criminal Justice System in Nineteenth-Century Ireland,” in Criminal Justice History: Themes and Controversies from Pre-Independence Ireland, ed. O'Donnell, Ian and McAuley, Finbar (Dublin: Four Courts Press, 2003), 117Google Scholar. Studies of the local government function of specific grand juries include King, Thomas, “Local Government Administrators in Carlow—from Grand Jury to County Council,” Carloviana: Journal of the Old Carlow Society 47 (1999): 77–78Google Scholar and Donovan, Tom, “Miscellanea: Some Records of Limerick Assizes,” North Munster Antiquarian Journal, 45 (2005): 151–54Google Scholar.

31. Blackstone, William, Commentaries on the Laws of England, 15th ed., Vol. 4 (London: A. Strahan, 1809), 301Google Scholar.

32. See Huband, The Grand Jury, 123–208 for details of the operation of grand juries in Ireland. See, also, Cornish, The Jury, 62 and O'Carroll, Gerald, Mr. Justice Robert Day (1746–1841): the Diaries and the Addresses to Grand Juries 1793–1829 (Tralee: Polymath, 2004), 3Google Scholar.

33. Foot, Charles H., The Grand Jury Laws of Ireland, 2nd ed. (Dublin: Hodges Figgis, 1884), 24Google Scholar.

34. Huband The Grand Jury, 184, noted that “[a] finding by less than twelve grand jurors is erroneous.” Hale wrote that “if there be thirteen or more of the grand inquest, a presentment by less than twelve ought not to be. But if there be twelve assenting, though some of the rest of their number dissent, it is a good presentment.” Hale, Matthew, The History of the Pleas of the Crown, Vol. 2 (London: E & R Nutt and R Gosling, 1736), 161Google Scholar. Any twelve jurors could agree to the bill; it was not necessary that the foreman be one of them: In re Grand Jury for County of Down (1845) 3 Cr & Dix CC.

35. On the special jury in the English context, see Oldham, James C., “The Origins of the Special Jury,” University of Chicago Law Review 50 (1983): 137–221CrossRefGoogle Scholar; Oldham, James C., “Special Juries in England: Nineteenth Century Usage and Reform,” Journal of Legal History 8 (1987): 148–66CrossRefGoogle Scholar; and J. Oldham, Trial by Jury. For an Irish context, see Howlin, Niamh, “Merchants and Esquires: Special Juries in Dublin 1725–1833,” in Georgian Dublin, ed. O'Brien, G. and O'Kane, F. (Dublin: Four Courts Press, 2008) 97–109Google Scholar.

36. The Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), s. 24.

37. The property qualifications for Irish jurors were always lower: see Garnham, The Courts, 135. In relation to special juries, another difference was that the Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), s. 24, contained a proviso that the bankers and wholesale merchants were not to carry on retail trade, whereas the English County Juries Act 1825 (6 Geo. IV, c. 50), s. 31 made no such stipulation. Sons of peers were listed in the Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), but not in the County Juries Act 1825 (6 Geo. IV, c. 50). Similarly, there was a difference in relation to men qualified to serve as grand jurors at the assizes and sheriffs. Section 6 of the Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65) reaffirmed the right of those legally entitled to be called “esquire” to serve as special jurors.

38. Section 29 of the Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91) set out the qualifications for special jurors, which related to their social status rather than simply the value of their land. This is similar to the County Juries Act 1825 (6 Geo. IV, s. 50), s. 31. Under the Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), sch. iv, special jurors in most counties had to be rated for the relief of the poor to the value of ₤50, compared with ₤20 for common jurors. Under the Jurors Qualification (Ireland) Act, 1876, sch. i, special jurors were rated at between ₤50 and £150 in most counties, compared with the common jurors' rating qualification of ₤10 to ₤40. In England, the Juries Act 1870 (33 & 34 Vic., c. 77), s. 6 provided that a special juror had to occupy a private house rated for ₤100 in towns of 20,000 inhabitants, or ₤50 elsewhere; alternatively he could occupy a farm rated at ₤300 or another premises at ₤100. See below, note 51.

39. King, “Illiterate Plebeians,” 256.

40. Ibid., 289.

41. The Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), s. 1, lowered the age limit from seventy to sixty years, and it was raised again by the Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65) to 65. It was subsequently lowered by the Juries (Ireland) Act 1873 (36 & 37 Vic., c. 27), s. 3 to sixty years. See Anon., “Juries Bill 1871,” Irish Law Times and Solicitors' Journal 6 (1872): 326–27Google Scholar. In England, the County Juries Act 1825 (6 Geo. IV, s. 50), s. 1 provided an upper age limit of sixty; this was not altered by the Juries Act 1870 (33 & 34 Vic., c. 77).

42. Under the Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), persons who held leases originally made for more than twenty-one years could also qualify as jurors, if the lease was worth ₤15 per annum; see below, note 50. See also the County Juries Act 1825 (6 Geo. IV, s. 50), s. 1.

43. See the Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), s. 2; the Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), s. 6, sch. 2; and the Juries Procedure (Ireland) Act 1876 (39 & 40 Vic., c. 78), s. 20, sch. 1. For an English context, see the County Juries Act 1825 (6 Geo. IV, s. 50), s. 2; and the Juries Act 1870 (33 & 34 Vic., c. 77), s. 9.

44. This common law rule was reaffirmed in the Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), s. 12.

45. The Juries (Ireland) Act 1873 (36 & 37 Vic., c. 27), s. 3.

46. See, for example, Report from the Select Committee on Privilege (Mr. Gray) 1882 House of Commons Parliamentary Papers (406) xii, 503, in which details are given of the religious beliefs of jurors (including those who were challenged) in the trials of Francis Hynes (see below, text accompanying notes 228–246), John O'Connor, Patrick Walsh, Michael Walsh, Laurence Kenny, William Bryan, Thomas Caesar, John Brennan, and George Richmond. The professions of those on the 1844 Dublin jury panel (and the jurors who tried Daniel O'Connell) may be found in the Return to an order of the Honourable the House of Commons, dated 2 April 1844; — for, copies of the lists returned by the collectors of grand jury cess for the county of the city of Dublin to the clerks for the peace for the said county, House of Commons Parliamentary Papers 1844 (357), xliv, 385.

47. Vaughan discusses the principal legislative qualifications for jurors in Vaughan, William E., Murder Trials in Ireland 1836–1914 (Dublin: Four Courts Press, 2009), 121–23Google Scholar.

48. The Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), s.1.

49. The County Juries Act 1825 (6 Geo. IV, s. 50), s.1 provided that a juror should hold ₤10 per annum in lands or tenements held in freehold, copyhold, or customary tenure, of ancient demesne; or in rents; or ₤10 per annum in fee simple, fee tail, or for the life of himself or some other person. He could alternatively hold a long lease. It also provided for the qualification of persons rated or assessed for the poor rate or the inhabited house duty, to the value of ₤20 in all counties except Middlesex, where the value was to be ₤30. A juror could also be a householder with a house of not less than fifteen windows.

50. There was an additional category for cities and towns: resident merchants, freemen, or householders with personal estate to the value of ₤100. This was the first time that personal property sufficed as a jury qualification.

51. Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), s. 5. Known as “O'Hagan's Act,” this was introduced by Thomas O'Hagan, the Irish Lord Chancellor, a liberal reformer who had also been responsible for the Landlord and Tenant (Ireland) Act 1870 (33 & 34 Vic., c. 46), known as the Land Act, which sought to legalize the Ulster tenant-right custom. The drafting of the 1871 Act has been detailed by McEldowney, in McEldowney, John F., “Lord O'Hagan (1812–1885): A Study of his Life and Period as Lord Chancellor of Ireland (1868–1874),” Irish Jurist 14 (1979): 360–77Google Scholar; and McEldowney, John F., Lord O'Hagan and the Irish Jury Act 1871 (PhD diss., Cambridge University, 1981)Google Scholar.

52. Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), sch. 4.

53. For a description of living conditions and changing standards in the latter half of the nineteenth century, see Cleary, Catríona, Social Change and Everyday Life in Ireland, 1850–1922 (Manchester: Manchester University Press, 2007)CrossRefGoogle Scholar.

54. See Return to an Order of the Honourable the House of Commons, dated 20 July 1876;– for, copy “of a return of the names of proprietors and the area and valuation of all properties in the several counties in Ireland, held in fee or perpetuity, or on long leases at chief rents,” prepared for the use of Her Majesty's Government 1876 House of Commons Parliamentary Papers (412) lxxx, 395. In 1875 there were 19,288 landowners in Ireland, 5,919 of whom held 100 or fewer acres.

55. Hay points out how difficult it is to use land tax returns for estimating how many acres would be worth ₤10: Douglas Hay, “The Class Composition of the Palladium Of Liberty: Trial Jurors in the Eighteenth Century,” in Cockburn & Green, Twelve Good Men, 313–16.

56. See Return to an Order of the Honourable the House of Commons, dated 20 July 1876;— for, copy of a return of the names of proprietors and the area and valuation of all properties in the several counties in Ireland, held in fee or perpetuity, or on long leases at chief rents, prepared for the use of Her Majesty's Government 1876 House of Commons Parliamentary Papers (412) lxxx, 395.

57. This Act created the United Kingdom of Great Britain and Ireland. See Geoghegan, Patrick, The Irish Act of Union: A Study in High Politics 1798–1801 (Dublin: Gill and Macmillan, 1999)Google Scholar and Keogh, Daire and Whelan, Kevin, eds., Acts of Union: the Causes, Contexts and Consequences of the Act of Union (Dublin: Four Courts Press, 2001)Google Scholar.

58. For an examination of the relationship between sectarianism and homicide in the early nineteenth century see McMahon, Richard, “‘The Madness of Party’: Sectarian Homicide in Ireland 1801–1850,” Crime History and Societies 11 (2007): 83–112CrossRefGoogle Scholar.

59. For further discussion of the means employed by the crown to secure criminal convictions in controversial or difficult cases, see Howlin, “Controlling Jury Composition” and Johnson, “Trial by Jury.”

60. See Jackson, Quinn, and O'Malley, “The Jury System.” The “Troubles” in Northern Ireland, which began in the late 1960s, saw 3,000 deaths as a result of political violence: see Bew, Paul and Gillespie, Gordon, Northern Ireland: A Chronology of the Troubles, 1968–1993 (Dublin: Gill and Macmillan, 1993)Google Scholar, v. The recommendations of a commission led by Lord Diplock led to the passing of the Northern Ireland (Emergency Provisions) Act 1973, which allowed for non-jury courts, known as Diplock Courts, for scheduled offences connected with the political agitation. Over 10,000 individuals were tried before such courts between 1973 and 1993: see, generally, Jackson, John and Doran, Sean, Judge Without Jury: Diplock Trials in the Adversary System (Oxford: Clarendon Press, 1995)Google Scholar. Dermot Walsh found that a sizeable proportion of cases tried before the Diplock Courts were in fact ordinary criminal cases: Walsh, Dermot, The Diplock Process: Today and Tomorrow (Belfast: Committee on the Administration of Justice, 1982), 2Google Scholar. Another example is the Special Criminal Court in the Irish Republic, established under the Offences Against the State Act 1939. It was extensively used during what was known in Ireland as the “Emergency” (World War II). It operated briefly between 1961 and 1962, and during the “Troubles,” a government proclamation in 1972 created a Special Criminal Court, which is, controversially, still in existence. See Davis, Fergal Francis, The History and Development of the Special Criminal Court, 1922–2005 (Dublin: Four Courts Press, 2007)Google Scholar. In 1968, Cornish noted that “[i]n places such as the first West African colonies, the jury was introduced for the whole populace, but such foreseeable obstacles to success as anti-African prejudices, inter-tribal partisanship and extensive bribery of jurors led to its abandonment in the later nineteenth century for civil cases, and to severe curtailment or supersession by trial with assessors in criminal cases.” Cornish, The Jury, 15–16.

61. The representative of the crown in Ireland was the Lord Lieutenant, and his will was expressed through the office of the chief secretary. On the powers and responsibilities of the chief secretary, see McDowell, The Irish Administration, 29–34.

62. See Corfe, Tom, The Phoenix Park Murders: Conflict, Compromise and Tragedy in Ireland, 1879–1882 (London: Hodder & Stoughton, 1968)Google Scholar.

63. The Prevention of Crime (Ireland) Act 1882 (45 & 46 Vic., c. 25).

64. See Howlin “Controlling Jury Composition,” 250–51.

65. Criminal Law and Procedure (Ireland) Act 1887 (50 & 51 Vic., c. 20).

66. Both of these acts also provided for the use of special juries in certain criminal prosecutions.

67. See Bridgeman, “The Constabulary.”

68. Vaughan, William E., Landlords and Tenants in Mid-Victorian Ireland (Oxford: Clarendon Press, 1994), 139CrossRefGoogle Scholar, See Langbein, John H., “The Origins of Public Prosecution and Common Law,” American Journal of Legal History 17 (1973): 313–35CrossRefGoogle Scholar; Dodd, William H., “The Preliminary Proceedings in Criminal Cases in England, Ireland, and Scotland, Compared,” Journal of the Statistical and Social Inquiry Society of Ireland (1878): 201–9Google Scholar; and McEldowney, John: “Crown Prosecutions in Nineteenth-Century Ireland,” in Policing and Prosecution in Britain 1750–1850, ed. Hay, Douglas and Snyder, Francis (Oxford: Clarendon Press, 1989), 428Google Scholar. See also Howlin, “Controlling Jury Composition,” 244–45.

69. Joshua Getzler, “The Fate of the Civil Jury in Late Victorian England: Malicious Prosecution as a Test Case,” in Cairns and McLeod, The Dearest Birth Right, 220.

70. This also proved to be a difficulty in most other regions to which jury trial was extended; see below, note 345, for example.

71. Although traditionally the freehold was an essential requirement for jury service, by the eighteenth century, provision was made for the qualification of certain leaseholders. A 1730 Regulation of Juries Act (3 Geo. II, c. 25) provided that the holders of any “Lease or Leases for the absolute Term of five hundred years or more, or for ninety-nine years or any other Term determinable on one or more Life or Lives,” with a yearly value of ₤20, were qualified to sit on juries in the same manner as freeholders. A 1731 Act (4 Geo. II, c. 7), s. 3 amended this in relation to jurors in Middlesex: leaseholders in that county were to serve on juries where their improved rent amounted to ₤50 per annum. A 1755 Act (29 Geo. II, c. 6), s. 12, entitled “An Act for Better Regulating Juries,” provided that jurors on any trial in the four courts, or before justices of assize or nisi prius (except aliens on juries de medietate linguae, and except in cities and towns), should hold ₤10 in freehold. Protestants could qualify if they held leasehold interests with clear profits of ₤15, where the lease still had fifteen years unexpired, or the lease was of sixty-one years determinable on life or lives. A 1765 Act for the Regulation of Trial Juries in Cork (5 Geo. III, c. 24), s. 6 provided that “the want of freehold shall not be a legal or sufficient objection or challenge to any person summoned” to the Recorder's Court in Cork; as long as a person was “worth fifty pounds over and above all his just debts,” this would be sufficient. The Juries Act (Ireland) 1871 provided that those who were rated for the relief of the poor could qualify as jurors; note that the Irish Poor Law Act 1838 (1 & 2 Vic., c. 56) allowed for the holders of leases to be rated for the relief of the poor, where the net annual value of the land exceeded ₤5. (If the land was worth less than ₤5, then by virtue of s. 72, the lessee, rather than the occupier, could be rated). See Stanley, William, Poor Laws—Ireland: The Injustice of Assessing Landlords and the Impracticality of Assessing Landholders (Dublin: Milliken and Son, 1837)Google Scholar.

72. See Brady, James C., “Legal Developments, 1801–79,” in A New History of Ireland; V, Ireland Under the Union 1801–1870, ed. Vaughan, William (Oxford: Oxford University Press, 1989)Google Scholar for a discussion of land reforms in the nineteenth century, particularly the statutes allowing the conversion of certain leases to fee farm grants, “enabling tenants to acquire the fee simple of their holdings subject to the payment of a perpetual rent. Such conversion fee-farm grants uniquely combined the grant to a freehold estate with leasehold tenure,” 452. It was also common in Ireland to grant leases for lives renewable forever. Brady points out that the popularity of these leases was partially attributable to “the fact that they combined the best of both worlds, giving to the landowner the extensive remedies available to a landlord while giving to the tenant an estate that approximated in status to a fee simple,” 453.

73. See Richard McMahon, The Courts of Petty Sessions and the Law in Pre-Famine Galway (MA diss., National University of Ireland Galway, 1999), 16–35.

74. In 1871, there were 714,313 persons in the country who could speak both English and Irish, and 103,562 persons who could not speak English. This had dropped to 64,167 by 1881 (half of these were in Connaught), while the figure for those fluent in both languages had increased. Figures taken from the 1881 Census, Table xxxiv, available in Jordan, Thomas E., The Census of Ireland 1821–1911, 3 vols. (New York: Edwin Mellen Press, 1998)Google Scholar.

75. These procedures have been detailed elsewhere: Howlin, “Controlling Jury Composition,” 234–36. For an English context, see the County Juries Act (6 Geo. IV, s. 50), ss. 5–10 and the Juries Act 1870 (33 & 34 Vic., c. 77) ss. 11–14.

76. See Lawson, “Lawless Juries,” 124–26.

77. The Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91).

78. The Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65) was more specific as to the dates by which the various elements of the procedure had to be completed.

79. The Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), sch. A.

80. Under the Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), s. 8, the precept was issued to the clerk of each poor law union, except in Dublin, where, under s. 10, it was issued to the collector-general of rates.

81. The Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), s. 4. Under the Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), s. 8, the precept required “a true list, in writing … of the names of all men rated for the relief of the poor within the said union, who are qualified and liable to serve as jurors.”

82. The Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), s. 5. Under the Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), s. 9, the clerk of the poor law union, made “due inquiry” with the assistance of the poor rate collector or collectors. They then prepared the list in alphabetical order of surnames, and this was called the “General List of Jurors for the Barony.”

83. The Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), s. 9. In England, the County Juries Act 1825 (6 Geo. IV, s. 50) provided in s. 9 that the lists were to be affixed to church doors, and kept by churchwardens for inspection.

84. The Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), s. 9. A similar procedure was laid down in the Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), s. 12.

85. In England, s. 10 of the County Juries Act 1825 (6 Geo. IV, s. 50) provided for the revision of the lists at petty sessions.

86. The same procedures were used in the preparation of the special jurors' book. See also the Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), s. 11. See Vaughan, Murder Trials, 123.

87. The Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), s. 9.

88. The Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), s. 10. See also the Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), s. 13.

89. The Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65).

90. The Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), s. 18. Before a court requiring a jury was to sit, it had to procure all precepts “necessary for commanding the return of jurors before the court.” The sheriff (or other officer) had to “select a sufficient number of names” from the relevant jurors' book, “and prepare a panel thereof.” A written or printed panel containing the jurors' names, addresses and other information, as well as whether or not they had previously been summoned as jurors in the past two years, was prepared by the sheriff seven days before the date mentioned in the precept. A printed copy of this panel was to be made available, upon the payment of a fee, to any party requiring it.

91. The Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), s. 11. If there was no jurors' book, the sheriff was to use the book from the previous year. The jurors' names were arranged according to rank and property, so that those of higher social status were placed higher on the panel; see Vaughan, Murder Trials, 123.

92. The Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), s. 19. See Vaughan, Murder Trials, 127–28.

93. The sheriff was obliged to take one name from each letter of the alphabet, and letters such as X, Y, and Z were quickly exhausted. Eventually, only a few letters would remain – surnames beginning with O or M were often very common. Lewis Mansergh Buchanan, the clerk of the peace for County Tyrone, told the Parliamentary Committee on Juries in 1881 that at the recent spring assizes in his county, in one case “all the jurors were Macs and ten out of twelve were Catholics.” Report from the Select Committee of the House of Lords on Irish Jury Laws, House of Commons Parliamentary Papers 1881 (430), xi, 1, para. 334. See also para. 329–33. See also the comments of Constantine Molloy, a Q.C. who had drafted the 1871 Juries Act, para. 643.

94. The Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), s. 12.

95. The Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), s. 14.

96. The subsheriff or undersheriff could also perform this task. Similarly, under section 18 of the Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), the jury summons was to be served by the sheriff or “proper Officer” of the court.

97. See s. 18 of the Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91).

98. The Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), s. 22.

99. The postal summons was one of the issues considered by the 1873 parliamentary committee, and there was considerable disagreement over whether it could or should be extended to the rest of the country. See First, Second, and Special reports from the Select Committee on Juries (Ireland) House of Commons Parliamentary Papers 1873 (283) xv, 389. The question arose once more before in 1874: Report from the Select Committee on the Jury System (Ireland) House of Commons Parliamentary Papers 1874 (244) ix, 557.

100. The Juries Procedure (Ireland) Act 1876 (39 & 40 Vic., c. 78), s. 6.

101. This function had previously been performed by the sheriff.

102. The Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), s. 18. In England, jurors were given ten days notice under s. 24 of the County Juries Act (6 Geo. IV, c. 50).

103. The Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), s. 21 and the Juries Procedure (Ireland) Act 1876 (39 & 40 Vic., c. 78), s. 6.

104. The ballot procedure extended to civil cases under s. 19 of the Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91). This had been done in England by s. 31 of the County Juries Act 1825 (6 Geo. IV, c. 50). It was suggested in 1853 to a Royal Commission that the automatic right to a ballot ought to be extended to criminal cases: Royal Commission to inquire into the process, practice and system of pleading in Superior Courts of Common Law, Second Report, House of Commons Parliamentary Papers 1852–3 (1626), xl, 701, para. 2498–99. It was not until 1871 that the ballot was extended to both civil and criminal cases as a matter of right: the Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), s. 41. See also the Juries Procedure (Ireland) Act 1876 (39 & 40 Vic., c. 78), s. 19.

105. Purcell gave the form of the oath to be as follows: “The clerk of the crown orders the crier to call the juryman who stands highest on the panel, and having directed the latter to look upon the prisoner, and to take the book in his right hand, he administers to him the following oath:– ‘You shall well and truly try, and true deliverance make, between our sovereign lady the Queen and the prisoner at the bar, and all such other prisoners and traversers as shall be given you in charge, and a true verdict give according to the evidence.’” Purcell, Theobald Andrew, A Summary of the Criminal Law of Ireland (Dublin: Grant and Bolton, 1848), 188Google Scholar. The juror would take the Bible in his hand and the Clerk of the Peace would say “juror, look upon the prisoner. Prisoner, look upon the juror.” The juror then swore on the bible and kissed it.

106. The same jury could try several issues in succession if the parties consented. The Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), s. 19.

107. For a discussion of this in an American context, see King, Nancy Jean, “Juror Delinquency in Criminal Trials in America, 1796–1996,” Michigan Law Review 94 (1996): 2673–752CrossRefGoogle Scholar.

108. The Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65).

109. Report from the Select Committee on Jury System (Ireland) House of Commons Parliamentary Papers 1874 (244) ix, 557, per Baron Deasy, third Baron of the Irish Court of Exchequer, para. 2498–99.

110. Ibid., per William Ormbsy, the subsheriff of the city and county of Dublin, para. 488.

111. The Juries (Ireland) Act 1833 (3 & 4 Wm. IV, c. 91), ss. 32 and 41, and the Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), s. 48. In England, see the County Juries Act 1825 (6 Geo. IV, c. 50), s. 52.

112. Report from the Select Committee on Jury System (Ireland) House of Commons Parliamentary Papers 1874 (244) ix, 557, per Ormsby, para. 558. According to s. 2 of the Fines Act (Ireland) 1851 (14 & 15 Vic., c. 90), an order could be made for the imposition of any fine. The officer of the court was to enter and maintain the particulars of such orders in a special book, and was to send notices through the post to those who were fined, within fourteen days of the end of term, assizes, sessions, or sittings at which the fine was imposed. The person fined had thirty days in which to pay, or else a warrant would be issued. Within seven days, the judge's registrar or clerk was to certify “the Particulars of any Penal Sum which shall have been imposed or ordered to be levied by the said Court in such Case. Section 3 went on to state that where a fine was levied, and a warrant for its payment was issued after thirty days, the court officer could order distress or imprisonment in cases of non-payment. Such fines could be appealed, and under s. 9 the party in question could apply to the relevant court for a reduction or a remittance. An examination of the warrants issued in May between 1880 and 1883 in county Mayo show that this practice was frequently resorted to: Office of the Clerk of the Crown and Peace, Co. Mayo 1881–1899 National Archives of Ireland, (hereafter N.A.I.) 1c/76/100a. It is clear that in Mayo there were a number of repeat offenders. One Robert Carson wrote as an excuse in 1895 that he had “a bad lump in my neck for the past 10 or 12 days” – a dubious excuse from a man who had ignored jury summonses almost every year for two decades. Under the Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65), s. 40 the court could fine any person who failed to appear after being summoned for jury service, unless some “reasonable excuse” was proved by oath or affidavit. The most common excuses seem to have been medical reasons, the bad state of the roads and economic hardship. Office of the Clerk of the Crown and Peace, Mayo 1877–96, N.A.I. 1c/76/102.

113. See O'Ferall, Fergus, Catholic Emancipation: Daniel O'Connell and the Birth of Irish Democracy 1820–30 (Dublin: Gill and Macmillan, 1985)Google Scholar and Boyce, D. George, Nineteenth Century Ireland: the Search for Stability (Dublin: Gill and Macmillan, 1990), 57–86Google Scholar.

114. The tithe war was a period of violence and political agitation during the 1830s when there was widespread resistance among Irish Catholics to attempts to collect tithes for the established Church of Ireland. See Boyce, Nineteenth Century Ireland, 62–64.

115. These were the trials of John Mitchel, Thomas Francis Meagher, and William Smith O'Brien for sedition.

116. See below, note 139 and see also Donnelly, James S. Jr., “A Famine in Irish Politics,” in A New History of Ireland; V, Ireland Under the Union 1801–1870, ed. Vaughan, William (Oxford: Oxford University Press, 1989), 364–71Google Scholar; Jackson, Alvin, Ireland, 1798–1998: Politics and War (Oxford: Blackwell Publishers, 1999), 55–57Google Scholar; Davis, Richard, The Young Ireland Movement (Dublin: Gill and Macmillan, 1987)Google Scholar; and Lyons, Francis Stewart Leland, Ireland Since the Famine (London: Weidenfeld and Nicolson, 1971), 93–101Google Scholar.

117. See Boyce, Nineteenth Century Ireland, 139–53. See also Howlin, Niamh, “Fenians, Foreigners and Jury Trials in Ireland, 1865–70,” Irish Jurist 45 (2010): 51–81Google Scholar.

118. On the reasons behind the land war, see Vaughan, Landlords and Tenants, 208–16. See also Lyons, Ireland Since the Famine, 156–69, 182, 185–86.

119. Letter Regarding the Jury Bill 1833, from the judges of Ireland to E.G. Stanley, February 1833, N.A.I. OP/1833/14.

120. See Stephen, James Fitzjames, A Digest of the Criminal Law (London: Macmillan and Co., 1877), 77–78Google Scholar and Hawkins, William, Treatise of the Pleas of the Crown, 4th ed., Vol. 1 (London: E. Richardson and C. Lintot, 1762,), 259Google Scholar.

121. Jury Act 1833 (3 & 4 Wm. IV, c. 91), s. 48.

122. According to Duncombe, “[t]o give the Jury money, makes their Verdict voyd.” Duncombe, Giles, Tryalls Per Pais (London: George Dawes, 1655), 213Google Scholar. See, for example, the English case of Sir John Smith and Peaze (1687) 1 Leo 17; 74 ER 16.

123. See the English case of Richard Noble (1713) How St Tr 731.

124. Again, it is difficult to asses whether such fines were ultimately paid.

125. See the case of Byrne v Chester & Holyhead Railway Co. (1856) 8 Irish Jurist (os) 511, discussed below, note 283.

126. See above, note 114.

127. Kelly, Jennifer, “The Downfall of Hagan”: Sligo Ribbonism in 1842 (Dublin: Four Courts Press, 2008)Google Scholar describes the Ribbon society, 1, as “an illegal Catholic sectarian society, formed in the early nineteenth century in opposition to the Protestant Orange Order.” According to Michael Beames, ribbonism had an urban emphasis and a distinct regional character, strongest in Dublin, around the eastern seaboard, parts of Ulster, and in towns along the Royal and Grand Canals. In the pre-famine years, he argues, the movement gave expression to “diffuse and contradictory interests, ideals and aspirations: nationalism, republicanism, embryonic unionism and ‘mutual aid’ society activities.” He considers it to have been ineffectual as a nationalist movement, and ascribes this to its “clumsy” organizational structure, and the fact that its oaths and catechisms “trapped it in a world of mystification and ritual which obscured any rational programme of action.” Beames, Michael, “The Ribbon Societies: Lower-Class Nationalism in Pre-Famine Ireland,” Past and Present 97 (1982):128–43CrossRefGoogle Scholar, at 129–142. By contrast, however, Garvin argues that some of these secret societies “developed into regional networks and tended to become politicized, some of them eventually becoming affiliated to quite elaborate all-Ireland organisations.” Garvin, Tom, “Defenders, Ribbonmen and Others: Underground Political Networks in Pre-Famine Ireland,” Past and Present 96 (1982): 133–55CrossRefGoogle Scholar. See also Garvin, Tom, The Evolution of Irish Nationalist Politics (Dublin: Gill and Macmillan, 1981)Google Scholar.

128. Report from the Select Committee of the House of Lords, appointed to enquire into the state of Ireland in respect of crime, and to report thereon to the House House of Commons Parliamentary Papers 1839 (486) xi, 1; xii, 2, para. 1882. Although there may have been an element of exaggeration to the submissions made before these committees, there were other witnesses who concurred with these views; see Major George Warburton, para. 1060–66, who spoke of jurors being attacked for their verdicts. In March 1833, a Kilkenny RM named Greene had reported that he received an application from a man named Mason seeking to be “excused attending as a Petit Juror.” The man had “been informed of a Conspiracy” plotted against him by certain parties who had not been pleased with his conduct at the last assizes. Memorandum on Juror Intimidation, 1833, N.A.I. OP/1833/579.

129. Report from the Select Committee of the House of Lords, appointed to enquire into the state of Ireland in respect of crime, and to report thereon to the House House of Commons Parliamentary Papers 1839 (486) xi, 1; xii, 2, para. 10,531.

130. This was slashing the tendons at the back of the leg.

131. Report from the Select Committee of the House of Lords, appointed to enquire into the state of Ireland in respect of crime, and to report thereon to the House House of Commons Parliamentary Papers 1839 (486) xi, 1; xii, 2, para. 10,528–29. Slye was acquitted in the case. Flynn did not believe that the Protestant jurors would have reasoned thus, because “the Protestants have, I think, in many Instances, displayed more Firmness of Character.” He claimed, ibid., para. 10,540–42, that Catholics such as himself, who were not susceptible to intimidation and threats, were known as “Bloody Orange Catholics.”

132. Report from the Select Committee on Outrages (Ireland), House of Commons Parliamentary Papers 1852 (438), xiv, 1, per Burton Brabazon, para. 4214.

133. Ibid., para. 4215–19.

134. Ibid., per Captain Bartholomew Warburton, a stipendiary magistrate, para. 78–82.

135. Ibid., para. 803, per Edward Golding, a county Monaghan magistrate.

136. R v Fay (1872) IR 6 CL 436.

137. Anon., “The Ballyjamesduff Murder Case. Motion to Change the Venue,” Anglo Celt, June 22, 1872, 3.

138. R v Fay (1872) IR 6 CL 436, 438–9.

139. Widespread misery and discontent after the Great Famine of the 1840s had driven many young men to join such groups as the Young Irelanders, which were an extremist section of the earlier Repealers. See Boyce, Nineteenth Century Ireland, 115–17; Garvin, Irish Nationalist Politics; 51 and Donnelly, “A Famine in Irish Politics,” 362–67. In 1848 they staged an abortive uprising which was opposed by the clergy, and was easily quashed. The three leaders of Young Ireland were prosecuted for sedition: Thomas Francis Meagher and William Smith O'Brien for inflammatory speeches, and John Mitchel for seditious articles published in his newspaper The United Irishman: see Donnelly, “A Famine in Irish Politics” 267.

140. This placard was widely circulated, and was reproduced in Freeman's Journal: Anon., “Another ‘Kirwan’ Movement—Incitement to Tumult,” Freeman's Journal May 25, 1848, 2. See the report of the trial: R v Mitchel (1848) Bl D & O. Mitchel was convicted and transported to Van Diemen's Land, and in 1853 he escaped and made his way to the United States, where he worked a journalist: see Lyons, Ireland Since the Famine, 98.

141. See Report of the Royal Commission on the Land Law (Ireland) Act, 1881, and the Purchase of Land (Ireland) Act, 1885 (1887) House of Commons Parliamentary Papers [C.4969] [C.4969-I] [C.4969-II] xxvi, 1, 25, 1109, per James Hamilton QC, at para. 18,574.

142. Report from the Select Committee of the House of Lords on Irish Jury Laws, House of Commons Parliamentary Papers 1881 (430), xi, 1, per Lord Emly, para. 3394 and Justice John Fitzgerald, para. 4280.

143. Hickey, Éanna, Irish Law and Lawyers in Modern Folk Tradition (Dublin: Four Courts Press, 1999), 115Google Scholar. The practice is also alluded to in several fictional works, such as Griffin's, GeraldThe Collegians (Belfast: Appletree Press, 1992), 376–77Google Scholar.

144. King, “Illiterate Plebeians,” 288.

145. See, for example, Brett, Charles, Court Houses and Market Houses of the Province of Ulster (Belfast: Ulster Architectural Society, 1973)Google Scholar; Patton, Billy, The Court will Rise: A Short History of the Old Courthouse, Lifford, Co. Donegal (Donegal: Lifford Association for Tourism, Commerce and Heritage, 2004)Google Scholar; and Dunne, Mildrid and Phillips, Brian, The Courthouses of Ireland: A Gazetteer of Irish Courthouses (Dublin: The Heritage Council, 1999)Google Scholar.

146. See Cockburn, History of English Assizes, 65–67, on the pomp and ceremony associated with the assizes in England, which were similar to those in Ireland. Garnham, The Courts, 104–7, notes that in the eighteenth century the assizes were of significant local importance; as well as the legal activities of the court, there was important local government business transacted, and sizeable crowds were attracted to the assize town. Fairs, markets and auctions, as well as balls and social events kept the town busy and crowded for the duration of the assizes and beyond.

147. This also appears to have been a problem in nineteenth-century Mississippi; see below, note 332.

148. See Brett, John Henry, “County Courthouses and County Gaols in Ireland,” Irish Builder 17 (1875): 25–26Google Scholar. Brett, a civil engineer, described the accommodation required in the courthouses of Irish assize towns in a paper read at a meeting of the Architectural Association of Ireland. He recommended that “The jury box must contain accommodation for twelve men sitting, besides space in which another twelve may stand, as it sometimes happens when one jury retires to consider its verdict, another will be empanelled to try a new case. Therefore, when the old jury comes out again there should be space for it to sit without incommoding the new jury.” He further recommended that “Petty jury rooms, accessible only from the jury boxes, are required; it is advisable to provide two such rooms for each court; the average floor space may be 200 to 250 square feet.” He also suggested the inclusion of a waiting room for petty jurors.

149. Brett, Court Houses.

150. Ibid., 56.

151. Ibid., 30.

152. Ibid., 17. A design for a courthouse at Ballyconnell, county Cavan also included a petty jury room just off the main courtroom, although this plan was never executed: ibid., 13.

153. Dunne and Phillips, Courthouses of Ireland, 46–47.

154. Ibid., 78–79.

155. Ibid., 90–91.

156. Ibid., 126–27.

157. Ibid., 230–31.

158. Ibid., 242–43.

159. Ibid., 326–27.

160. Examples include the courthouse at Baltinglass, County Wicklow, built around 1810: Dunne and Phillips, Courthouses of Ireland, 52–53, and Listowel, County Kerry: ibid., 212–13.

161. Philip Harding, a magistrate residing near Macroom in County Cork, described how jurors in the manor court were “sitting in the court mixing with the people, and they were talking to each other.” Report from the Select Committee on Manor Courts, Ireland 1837 House of Commons Parliamentary Papers (491) xv, 1, 81. At the trial of Francis Hynes in 1883 (discussed below in greater detail, text accompanying notes 228–246), the jurors stayed overnight in a hotel, and were seen in the hotel billiard room to be mixing with persons who were not on the jury. Francis Brady, a hall porter, later testified, “I remarked to the constable who was standing in the hall, ‘Is it not a very unusual thing for a jury to be mixing with other people; I never saw jurors in a public billiard-room before.’” Dublin Commission Court (Francis Hynes): Copies of any Documents in the nature of Evidence or Memorials, submitted for the consideration of the Irish Executive, with reference to the alleged Misconduct of Members of the Jury, the Verdict, and the Sentence, in the Case of Francis Hynes House of Commons Parliamentary Papers 1882 (408) lv, 167, 5. Other jurisdictions, such as parts of the United States, seem to have experienced similar difficulties; see below at note 332.

162. Ryder v Burke (1847) 10 Ir LR 474.

163. Charles O'Gorman Mahon was a supporter of O'Connell, a member of the Catholic Association, and had sat as an MP for Clare in 1830.

164. Anon., “Clare Assizes,” The Galway Mercury, July 24, 1847, 1–2, 2.

165. Jurors did not always leave the courtroom for their deliberations. Particularly at the quarter sessions, they might simply huddle in the jury box for a few minutes before announcing their verdict.

166. Anon., “The Irish Jury System,” Freeman's Journal, January 30, 1875, 7.

167. Ibid.

168. Anon., Freeman's Journal, June 25, 1875, 5.

169. Anon., Freeman's Journal, June 25, 1875, 5.

170. Anon., “The Irish Jury System,” Freeman's Journal, January 30, 1875, 5, citing Pim.

171. Anon., “The Irish Jury System,” Freeman's Journal, January 30, 1875, 5.

172. Anon., “The Irish Jury System,” Freeman's Journal, January 30, 1875, 5.

173. Anon., “The Irish Jury System,” Freeman's Journal, January 30, 1875, 5, citing McComas.

174. Anon., Freeman's Journal, April 30, 1878, 5.

175. Report from the Select Committee of the House of Lords on Irish Jury Laws, House of Commons Parliamentary Papers 1881 (430), xi, 1, para. 821, per T. Newenham Harvey.

176. Anon., “Deputations to the Chief Secretary: The Saddlers' Trade – Duties of Juries,” The Belfast News-Letter, January 14, 1876, 2; Anon., “The Grievances of Jurors” Freeman's Journal, January 14, 1876, 3; and Anon., Freeman's Journal, February 5, 1876, 5.

177. Anon., “Deputations to the Chief Secretary: The Saddlers' Trade – Duties of Juries,” The Belfast News-Letter, January 14, 1876, 2.

178. Anon., “The Jurors of Dublin,” Freeman's Journal, June 5, 1877, 5. These works were actually executed; see Anon., Freeman's Journal, April 30, 1878, 5.

179. In the 1870s, there were five separate common jury panels at the superior courts, serving the Courts of Queen's Bench, Common Pleas, Chancery, Probate, and the Consolidated Nisi Prius Court. A juror could be summoned to attend at more than one of these courts in a single term. There were four special jury panels for the city and four for the county. In 1874 the Statistical Society of Ireland recommended that there be just one panel of special jurors and one panel of common jurors at any time. This single panel could contain twice as many jurors as a traditional panel, it was argued. See the “Report of Committee on Suggestions for Diminishing the Excessive Summoning of Jurors in the County and City of Dublin 1874,” Journal of the Statistical and Social Inquiry Society of Ireland 6 (1870–79): 378–82.

180. See, for example, James Swanston Cockburn, “Twelve Silly Men,” 163–71 and John M. Beattie, “London Juries in the 1690s,” in Cockburn and Green, eds., Twelve Good Men, 218–19.

181. See the County Juries Act 1825 (6 Geo. IV, c. 50), s. 42. This did not apply to special jurors.

182. The County Juries Act 1825 (6 Geo. IV, c. 50).

183. Letter Regarding the Jury Bill 1833, from the judges of Ireland to E.G. Stanley, February 1833, N.A.I., OP/1833/14.

184. See below, section e.

185. See below, section d.

186. Thomas Hardy's Case (1794) 24 How St Tr 199 and Horne Tooke's Case (1794) 25 How St Tr 1.

187. This was evident both in felony cases, such as R v O'Neill and Henderson (1843) 3 Cr & Dix 146, and in misdemeanor cases such as R v Wallace (1853) 3 ICLR 38; 5 Irish Jurist 179.

188. In an English case from 1821, R v Fowler and Sexton (1821) 4 B & Ald 273; 106 ER 937, for example, a juror not only separated from the others, but had “conversed respecting his verdict with a stranger,” and the verdict was quashed. Compare the Irish case of R v O'Neill and Henderson (1843) 3 Cr & Dix 146, in which the juror absented himself for an hour and a half. It was unlikely in a misdemeanor case to order a new trial in these circumstances. In the English case of R v Kinnear, Wolfe and Levi (1819) 2 B & Ald 462; 106 ER 434, Abbott CJ held that in cases of misdemeanor, the separation of the jurors would not render the verdict void. In the Irish case of R v Wallace (1853) 3 ICLR 38; 5 Irish Jurist 179, a libel action, the jury separated at the end of the first day of the trial. On appeal to the Court of Queen's Bench, Crampton J was emphatic that the “mere fact of the jury separating,” in the absence of any “tampering with the jury” was insufficient to strike out the verdict.

189. R v O'Connell and others (1845) 1 Cox CC 411.

190. After some of the special jurors had indicated that they could not remain away from their homes and businesses for a month, they had been allowed to return home every evening during the trial itself, as long as they did not converse with anyone about the case. It was only when they were deliberating their verdict that they were obliged to remain overnight.

191. Armstrong, John Simpson and Trevor, Edward Shirley, A Report of the Proceedings on an Indictment for Conspiracy in the Case of the Queen v Daniel O'Connell and Others (Dublin: Hodges and Smith, 1844), 886Google Scholar.

192. Ibid., 886–87.

193. In England, Abbott CJ had pointed out twenty years earlier that “it would have been most injurious to the cause of the defendants, that their case should be heard by a jury, whose minds were exhausted by fatigue.” R v Kinnear (1819) 2 B & Ald 462; 106 ER 434.

194. Alexander Pope, “The Rape of the Lock,” III.

195. Thomas, John Henry, A Systematic Arrangement of Lord Coke's First Institute of the Laws of England (Philadelphia: Robert H. Small, 1827), 392Google Scholar (Co. Litt. 227b). See also Bacon, M., A New Abridgement of the Law, Vol. 3 (London: H. Lintot, 1736–66) 269Google Scholar. It would appear that the latter part of this injunction was less strictly observed than the former; Purcell observed that “[t]he restriction as to candle-light has always been dispensed with on the retirement of the jury at night, when they require the inspection of documents which have been given in evidence.” Purcell, Theobald, A Summary of the Criminal Law of Ireland (Dublin: Grant and Bolton, 1848), 204Google Scholar. No such rule was applied to manor court juries. In fact, cases were sometimes heard in public houses. McMahon, MA diss., 24.

196. See J. Hope, Dissertation on the Constitution and Effects of a Petty Jury (Dublin , 1737), 11–12. It should be noted that jurors could partake of refreshment before retiring to consider their verdict. They did this, for example, in a case decided in Antrim in 1825: Lessee John Hamilton O'Hara v Henry Hutchinson Hamilton O'Hara (1825) Antrim Summer Assizes; reported in Burke, Peter, Celebrated Trials Connected with the Upper Classes (London: W. Benning and Co., 1851), 343Google Scholar. Sometimes the jurors declined to do so: see the trial of McClure, in Reports of Proceedings at the Special Commission (1867) for the county and city of Cork and the county and city of Limerick (Dublin, 1871), 195.

197. Hale, Matthew, Pleas of the Crown: or, A Methodical Summary of the Principal Matters Relating to that Subject, Vol. 1 (London: Shrewsbury and Leigh, 1678), 33Google Scholar. See also Blackstone, Commentaries, Vol. 3, 379. An English writer in 1821 defended the unanimous verdict as opposed to the majority verdicts allowed in Scotland and France: Booth, David, Observations On the English Jury Laws In Criminal Cases with Respect to the Distinction Between Unanimous Verdicts and Verdicts by a Majority (London: E. Wilson, 1821)Google Scholar. See also: Campbell, John, Considerations on the Immoral Tendency of a Law Requiring Unanimity of Juries (Edinburgh: Oliphant, Waugh and Innes, 1815)Google Scholar.

198. Houston, “Observations,” 104.

199. Hope, Dissertation on the Constitution and Effects of a Petty Jury, 12.

200. See the English cases of Welcden v Elkington (1578) 2 Plowd 516; 75 ER 763; Mounson v West (1588) 1 Leon 88, 132; 74 ER 82, 123; Richmond v Wise (1683) 1 Vent 124; 86 ER 86; Everett v Youells (1833) 4 B & Ad 681; 110 ER 612; and Cooksey v Haynes (1858) 27 LJ Exch 371. In Morris v Davies (1828) 3 Car & P 216, 427; and 172 ER 393, 486, Gaselee J, on being informed that the special jurors, having remained locked up together overnight, were unable to agree, allowed each of them to have two sandwiches and a glass of wine and water, prepared by his own butler.

201. R v Newton (1849) 3 Car & K 85; 175 ER 473.

202. Hope, Dissertation, 12.

203. Cooksey v Haynes (1858) 27 LJ Exch 371.

204. Morris v Vivian (1842) 10 M & W 137; 152 ER 414.

205. Richmond v Wise (1683) 1 Vent 124; 86 ER 86.

206. Mounson v West (1588) 1 Leon 88, 132; 74 ER 82, 123.

207. Welcden v Elkington (1578) 2 Plowd 516; 75 ER 763.

208. Everett v Youells (1833) 4 B & Ad 681; 110 ER 612.

209. Harris v Harris (1869) IR 3 CL 294.

210. R v Locke and McGarry (1845) 3 Cr & Dix CC 393. See also Ryder v Burke (1847) 10 Ir LR 474.

211. By the mid-nineteenth century legal commentators were critical of the rule against refreshment; see Anon., “Our Jury System,” where it was described, 723, as “an absurd and monstrous custom.”

212. Dunne and Phillips, Irish Court Houses, for example, identify fireplaces in the jury rooms in Castleblayney, County Monaghan (90–91), Donegal Town (126–27) and Moate, County Westmeath (230–31).

213. Royal Commission to inquire into the process, practice and system of pleading in Superior Courts of Common Law, Second Report House of Commons Parliamentary Papers 1852–53 (1626), xl, 701, 710.

214. Hansard 3, vol. 200, col. 1416, per A.W. Young.

215. Juries Procedure (Ireland) Act 1876 (39 & 40 Vic., c. 78), s. 12. Jurors were to be allowed the use of a fire when out of court, and reasonable refreshment at their own expense.

216. The Juries Act 1870 (33 & 34 Vic., c. 77), s. 23.

217. See above, section b.

218. Return of persons for trial at last spring assizes in the counties of Monaghan, Armagh, Antrim and Down, and how disposed of 1833 House of Commons Parliamentary Papers (402) xxix. 407, 1.

219. See above, text accompanying notes 191–192.

220. Return to an address of the Honourable the House of Commons, dated 21 May 1844; – for copies of all affidavits and pleadings filed in the cause of the Queen v Daniel O'Connell and others House of Commons Parliamentary Papers 1844 (395) xliv, 225.

221. Report from the Select Committee of the House of Lords on Irish Jury Laws, House of Commons Parliamentary Papers 1881 (430), xi, 1, per Henry Arthur Blake, the resident magistrate at Tuam, County Galway, para. 222.

222. Attorney General v the Primate (1837) 2 Jones 362.

223. R v Barrett (1870) IR 4 CL 285.

224. See Frost, J., “The Case of Francis Hynes,” Irish Law Times and Solicitors Journal 16 (1882): 432–34Google Scholar. See also Dublin Commission Court (Francis Hynes): Copies of any Documents in the nature of Evidence or Memorials, submitted for the consideration of the Irish Executive, with reference to the alleged Misconduct of Members of the Jury, the Verdict, and the Sentence, in the Case of Francis Hynes House of Commons Parliamentary Papers 1882 (408) lv, 167, 16; and Anon., “The Trials in Ireland under the Crime Act. Unfounded Charge Against the Jury,” The Leeds Mercury, August 15, 1882, 5. The case was referred to as the Ennis Murder Case.

225. The practice of accommodating jurors in inns and taverns was also common enough in England. In the English case of R v Stone (1796) 6 TR 527; 25 How St Tr 1155, jurors spent the night in a tavern with six sworn bailiffs. In Horne Tooke's case (1794) 25 How St Tr 1, the jurors stayed at the London Coffee House every night with sworn officers, and in Thomas Hardy's case (1794) 24 How St Tr 199, they spent six nights sleeping with the sworn officers of the court at the Hummums. In the eighteenth century, this place was a combination of a steam bath, eatery, health center, and brothel, although by the nineteenth century it functioned as a somewhat seedy hotel; see Dickens, Charles, Great Expectations (London: Chapman and Hall, 1862)Google Scholar, chap. 45. See below, note 334 for an instance of a South African jury being accommodated in a hotel.

226. Dublin Commission Court (Francis Hynes): Copies of any Documents in the nature of Evidence or Memorials, submitted for the consideration of the Irish Executive, with reference to the alleged Misconduct of Members of the Jury, the Verdict, and the Sentence, in the Case of Francis Hynes House of Commons Parliamentary Papers 1882 (408) lv, 167, 16.

227. From the mid-nineteenth century, the Gresham was considered Dublin's premier hotel. See Ulick O'Connor, The Gresham Hotel 1865–1965 (Cork: Guy, 1965).

228. In 1867, Molloy pointed out that city jurors could be accommodated in the Gresham Hotel, whereas country jurors trying a case in the city would not be allowed to leave the courthouse, as this would amount to leaving the county. Molloy, Constantine, “A Central Criminal Court for the County and City of Dublin,” J.S.S.I.S.I. 4 (1867): 445–47Google Scholar.

229. The Imperial Hotel was also located on Sackville St.

230. Dublin Commission Court (Francis Hynes): Copies of any Documents in the nature of Evidence or Memorials, submitted for the consideration of the Irish Executive, with reference to the alleged Misconduct of Members of the Jury, the Verdict, and the Sentence, in the Case of Francis Hynes House of Commons Parliamentary Papers 1882 (408) lv, 167, 16.

231. Ibid., 18. See also the statement of Graves E. Searight, 24.

232. R v Barrett (1870) IR 4 CL 285.

233. Anon., “The Attempt to Assassinate Captain Lambert. The Trial of Peter Barrett,” Freeman's Journal, February 18, 1870, 6.

234. Anon., “Trial of Peter Barrett,” Freeman's Journal, June 24, 1870, 2; and Anon., “The Trial of Peter Barrett,” Freeman's Journal, June 25, 1870, 5. See Anon., “Court of Queen's Bench. The Third Trial of Peter Barrett,” The Daily Express, June 25, 1870, 4. Sackville St. was renamed O'Connell St. in 1924.

235. Account of Expenses incurred by the Sub-sheriff of the County of Dublin for Keep of Jury during Trial of defendant for a period of three days, N.A.I. CCS/1870/197. The bailiffs and police who were in charge of the jurors cost ₤3 for the three days.

236. O'Connor, The Gresham Hotel, 15.

237. See above text accompanying notes 230–235 .

238. Anon., “Ireland. Another Shocking Attempted Murder,” Daily News, July 10, 1882, 3.

239. An attempt was later made on his life by Patrick Delany, in March 1882.

240. William Smith O'Brien, “The Jury in the Ennis Murder Case,” letter to the editor, Freeman's Journal, August 14, 1882, 5.

241. Anon., “The Conviction of Francis Hynes. The Jury—The ‘Freeman’—and the Law Officers,” Freeman's Journal, August 15, 1882, 5.

242. See, generally, Dublin Commission Court (Francis Hynes): Copies of any Documents in the nature of Evidence or Memorials, submitted for the consideration of the Irish Executive, with reference to the alleged Misconduct of Members of the Jury, the Verdict, and the Sentence, in the Case of Francis Hynes House of Commons Parliamentary Papers 1882 (408) lv, 167.

243. Anon., “The Application Against Mr E.D. Gray, M.P. Judge Lawson's Sentence. Imprisonment and Fine,” Freeman's Journal, August 17, 1882, 3; and Anon., “The Charges Against an Irish Jury,” The Pall Mall Gazette, August 17, 1882, 10. See also Anon., “Mr Gray's Imprisonment,” Irish Law Times and Solicitors' Journal 16 (1882): 432.

244. Corfe, The Phoenix Park Murders, 233. A parliamentary committee was appointed to inquire into the case of Gray's imprisonment: Report from the Select Committee on Privilege (Mr. Gray) 1882 House of Commons Parliamentary Papers (406) xii.503.

245. Hope, Dissertation, 9.

246. Bacon, A New Abridgement, iv, 269. Similarly, in R v Ledgingham (1682) 1 Vent 97, 104; 86 ER 67, 72, it was stated that if the jurors were unable to reach agreement before the departure of the judges, “they are to be carried in carts after them so they may give their verdict out of the country.”

247. Burke, Oliver Joseph, Anecdotes of the Connaught Circuit (Dublin: Hodges Figgis, 1885), 163Google Scholar.

248. Ibid., 164.

249. Unfortunately, the accuracy of this anecdote is somewhat questionable. The Irish Militia Act 1793 (33 Geo. III, c. 22), had established an army, although it was not the first Irish militia: see Nelson, Ivan Francis, The Irish Militia, 1873–1802: Ireland's Forgotten Army (Dublin: Four Courts Press, 2007), 13–14)Google Scholar. Widespread rioting across the countryside accompanied the passing of this Act, and Nelson, 57, describes county Roscommon as “probably the most disaffected county of all.” Although the rioting did not prevent the establishment of the county militia regiment, it makes it unlikely that there was an operational militia available to escort jurors to the county line in that year. As Burke was retelling the story almost a century later, it may be that he had the wrong dates.

250. Burke, Anecdotes, 164.

251. 55. Anon., “Law. Queen's County Assizes. Murder of Mr. Carter,” Ulster Times, March 31, 1836, 5. This was the trial of Doughney, Judge, and Egan for the murder of William Carter.

252. Anon., (1854) 6 Irish Jurist (os) 181.

253. Houston, “Observations,” 104.

254. Winsor v the Queen (1866) 6 B & S 143; 122 ER 1150.

255. See, for example, McMahon, Michael, The Murder of Thomas Douglas Bateson, County Monaghan, 1851 (Dublin: Four Courts Press, 2006), 47Google Scholar. At the trial of Francis Kelly in February 1852, the jury retired at 7.30 on a Monday evening, and by Tuesday morning they were nowhere near reaching a verdict. By noon, it was claimed that two of them were ill, and that there was no likelihood of reaching agreement, so Blackburne J discharged them. Sometimes the remaining eleven jurors were discharged and then re-sworn onto a second jury, along with one replacement for the sick juror; see the English cases of Jeffrys v Tyndall (1624) Palmer 411; 81 ER 1147, R v Scalbert (1794) 2 Leach 260; 168 ER 412 and R v Edwards (1812) Russ & Ry 224; 168 ER 772.

256. See, for example, R v Barrett, Connors and two others (1829) Jebb CCR 103.

257. See, for example, R v Delany and Cheevers (1829) Jebb CCR 106.

258. See, for example, R v Dunne and others (1838) Cr & Dix Abr 535. See also R v Lecken (1844) 3 Cr & Dix CC 174; and R v Newton (1849) 3 Car & K 85; 175 ER 473.

259. R v Leary and Cooke (1844) 3 Cr & Dix CC 212.

260. Anon., “Committals for Murder,” Freeman's Journal, July 3, 1843, 3. Moylan was charged at the Nenagh assizes on August 2, 1843, whereas the trials of Leary and Cooke were put back until the following spring: Anon., “Wilful Murder—Capital Conviction,” Freeman's Journal, August 5, 1843, 1.

261. Anon., “Tipperary (North) Assizes,” Freeman's Journal, March 26, 1844, 1.

262. Ibid.

263. These details were not given in the Freeman's Journal, but appeared in the official case report: R v Leary and Cooke (1844) 3 Cr & Dix CC 212.

264. Before they were discharged they gave a verdict of guilty in the case of Leary, but no verdict for Cooke: Anon., “Tipperary (North) Assizes,” Freeman's Journal, March 26, 1844, 1.

265. The Winter Assize Act 1876 (39 & 40 Vic., c. 57) stated in its preamble that “it is usual to hold winter assizes in some counties and not to hold them in other counties in which there are but few prisoners awaiting trial.” This Act was designed to provide for the speedy trial of such prisoners. Under s. 2, Her Majesty, by an Order in Council, could provide for the uniting of neighbouring counties and the appointment of a place where winter assizes could be held in such counties. See also the Winter Assize Act 1877 (40 & 41 Vic., c. 46).

266. Anon., (1854) 6 Irish Jurist (os) 221.

267. Ibid.

268. See above, text accompanying notes 36–39.

269. Bacon, A New Abridgement, Vol. 3, 277.

270. See Geary, Frank and Stark, Tom, “Examining Ireland's Post-Famine Economic Growth Performance,” The Economic Journal 112 (2002): 919–35CrossRefGoogle Scholar; and Geary, Frank and Stark, Tom, “Trends in Real wages during the Industrial Revolution,” Economic History Review 57 (2004):362–95CrossRefGoogle Scholar.

271. Feinstein, Charles, “Changes in Nominal Wages, the Cost of Living and Real Wages in the United Kingdom over Two Centuries, 1780–1990,” in Labour's Reward: Real Wages and Economic Change in Nineteenth- and Twentieth-Century Europe, ed. Scholliers, Peter and Zamagni, Vera (Vermont: E. Elgar, 1995), 3Google Scholar. See also Scholliers, Peter, ed., Real Wages in Nineteenth- and Twentieth-Century Europe: Historical and Comparative Perspectives (New York: Berg, 1989)Google Scholar.

272. Feinstein, “Changes in Nominal Wages,” 8, attributes this to the Napoleonic Wars, and repeated harvest failure.

273. Report from the Select Committee of the House of Lords on Irish Jury Laws, House of Commons Parliamentary Papers 1881 (430), xi, 1, para.1321.

274. Bowley, Arthur L., Wages in the United Kingdom in the Nineteenth Century (Cambridge: Cambridge University Press, 1900), 45–50Google Scholar.

275. Ibid., 48. Ordinary laborers earned on average two shillings per week in the period from 1833 to 1840, and earned approximately nine shillings and sixpence around 1892; figures taken from ibid., 47. Agricultural laborers were less well-off, and tended to fare worse than their English and Scottish counterparts. Between 1833 and 1840 they earned an average of four shillings and sixpence per week, and by 1894 they were earning approximately ten shillings per week; ibid., 50. This is based on a six-day week.

276. Ibid., and Scholliers and Zamagni, Labour's Reward, 118. This was slightly more than those living in Belfast, and notably less than those in London.

277. However, sheriffs charged fees for their services; see the Fifteenth Report of the Commissioners Appointed to Inquire into the Duties, Salaries And Emoluments, of the Officers, Clerks, and Ministers of Justice, in all Temporal and Ecclesiastical Courts in Ireland 1826 House of Commons Parliamentary Papers (310) xvii. 29.

278. Dodd, “Grievances,” 224. Similarly, Thomas De Moleyns described jury duty as a thankless and unpaid service: Report from the Select Committee of the House of Lords on Irish Jury Laws, House of Commons Parliamentary Papers 1881 (430), xi, 1, para. 1660.

279. Byrne v Chester and Holyhead Railway Co (1856) 8 Irish Jurist (os) 511.

280. Ibid.

281. Fifteenth Report of the Commissioners Appointed to Inquire into the Duties, Salaries And Emoluments, of the Officers, Clerks, and Ministers of Justice, in all Temporal and Ecclesiastical Courts in Ireland 1826 House of Commons Parliamentary Papers (310) xvii. 29, 429.

282. Houston, “Observations,” 108.

283. The Juries Act (Ireland) 1871 (34 & 35 Vic., c. 65).

284. Both freeholders and leaseholders could be rated.

285. Molloy, one of the bill's drafters, later commented that these sums had been reduced in the House of Commons, and that the original proposal had been for rating qualifications of ₤30 and ₤20 respectively. First, Second, and Special Reports from the Select Committee on Juries (Ireland) House of Commons Parliamentary Papers 1873 (283) xv, 389, para. 1760.

286. See Vaughan, Murder Trials, 130–31.

287. Anon., (1854) 6 Irish Jurist (os) 221.

288. In other cases, it was merely known how many jurors were in favor of an acquittal. For example, at the Smith O'Brien trial there were reputedly ten jurors in favor of a conviction, and two who held out, with the result that there was no verdict. See Anon., “Our Jury System.”

289. See above, note 114.

290. Memorandum on Juror Intimidation, 1833, N.A.I. OP/1833/579.

291. Ibid.

292. See Earnan P. De Blaghd, “Tim Kelly Guilty or Not Guilty?” Dublin Historical Record 25 (1971–72): 12–24. The Invincibles were the group responsible for the Phoenix Park murders.

293. Walsh was sentenced to death, but the sentence was commuted to life imprisonment by the Lord Lieutenant.

294. Corfe, The Phoenix Park Murders, 234.

295. Anon., “Ireland,” The Times, February 10, 1883, 10.

296. R v Barrett (1870) IR 4 CL 285.

297. Anon., “The Special Commission,” The Galway Express, October 2, 1869, 2.

298. R v Barrett (1870) IR 4 CL 285, 286.

299. Anon., “Rioting in Town,” The Galway Express, October 2, 1869, 2.

300. R v Barrett (1870) IR 4 CL 285, 286. See also Anon., “Rioting in Town,” The Galway Express, October 2, 1869, 2, where it was reported that the mob had attempted “the summary execution of a refractory juryman.” Jackson was “hooted and groaned,” and “attacked with bricks and stones, and one old woman seemed so bitter that she brought out a sod of turf and rolled it in the mud before throwing it at him.” The Attorney General believed that such happenings had “no precedent in the history of Irish trials”: Freeman's Journal, January 17, 1870. See also the affidavit of Rev. John Dooley, November 29, 1869, N.A.I., CCS 1870/197.

301. Affidavit of Edward Rochford, October 3, 1869, N.A.I. CCS/1870/197.

302. R v Barrett (1870) IR 4 CL 285, 286. See Anon., “Court of Queen's Bench. The Queen v. Barrett,” Freeman's Journal, January 17, 1870, 4.

303. Anon., “A Juror Mobbed,” The Daily Express, October 1, 1869, 4.

304. Jury trial was exported to some territories earlier than the nineteenth century (for example, juries were brought to the early New England settlements in the seventeenth century, and were also extended to Sierra Leone in the eighteenth century), but the nineteenth century saw its rapid extension to all corners of the Empire.

305. Knox-Mawer, “British Colonial Africa,” 160.

306. P.R. Spiller, “The Jury System in Early Natal (1846–1874),” The Journal of Legal History 8 (1987): 129–47. However, s. 4 of Law 10 of 1871 limited eligibility for jury service to “Natives who have obtained their exemption from the operation of Native Law under Law 28, 1865.” The latter had allowed natives who proved themselves to be capable “of exercising and understanding the ordinary duties of civilised life” to be relieved from “Native Law.” See also Mittlebeeler, Emmet V., “Race and Jury in South Africa,” Howard Law Journal 14 (1968): 90–104Google Scholar.

307. Mittlebeeler, “Nigeria,” 92. The linguistic requirement was dropped in 1876, because of the difficulty in obtaining sufficient numbers of qualified jurors, but by 1945 it had become a valid ground for challenging jurors: Mittlebeeler, “Nigeria,” 93.

308. See Hanly, “Decline of Civil Jury Trial.”

309. For example, civil juries were abolished in Sierra Leone in 1867 (Jearey, J.H., “Trial by Jury and Trial with the Aid of Assessors in the Superior Courts of British African Territories: I,” Journal of African Law 4 [1960]: 133–46CrossRefGoogle Scholar); in Gambia and the Gold Coast in 1866 (ibid., 140); in South Africa in 1927 (S.A. Strauss, “The Jury in South Africa,” University of Western Australia Law Review 11 [1973–74]:133, 138); and by 1866 there were no civil juries in Lagos (Mittlebeeler, “Nigeria,” 90).

310. Knox-Mawer, “British Colonial Africa,” 163. This was also highlighted in 1865: Index to the report from the Select Committee on Africa (Western Coast) 1865 House of Commons Parliamentary Papers (412-I) v.1. 499, 323, 1. Broad categories of exemptions of jurors in the Commonwealth Caribbean led to a shortage of jurors: Deosaran, Ramesh, “The Jury System in a Post-Colonial Multi-Racial Society: Problems of Bias,” British Journal of Criminology 21 (1981): 305–23CrossRefGoogle Scholar. The problem of not having enough jurors presented itself differently in Canada. Parker observes that it was hard to maintain a complete jury system because of “the thinly populated vast territory, and the infrequency of visits by the assize judges.” Parker, Graham, “Trial by Jury in Canada,” The Journal of Legal History 8 (1987): 178–89CrossRefGoogle Scholar.

311. This was clearly a problem in Natal, where white jurors tried mostly black defendants: Spiller, “Early Natal,” 134.

312. For example, it was said in 1865 that juries in the Cape Coast colony in South Africa tended to consist repeatedly of the same men: Index to the Report from the Select Committee on Africa (Western Coast) 1865 House of Commons Parliamentary Papers (412-I) v.1, 499, per W.A. Ross, 319.

313. Campbell, James V., “Some Hints on Defects in the Jury System” (1878–79) 4 Southern Law Review (ns) 4 (1878–79): 521–38Google Scholar.

314. Cockburn, “Twelve Silly Men” comments, 160, that “service on a trial jury in the sixteenth and seventeenth centuries was unpopular and that jurors at both assizes and quarter sessions were often in short supply.”

315. See Anon., “Discharge of a Jury,” Canadian Law Times 29 (1909): 748–49.

316. Cremona, “The Jury System in Malta,” 580.

317. Spiller, “Early Natal,” 141, citing Peace, Blandy and Company v Hartley (1868) Natal Supreme Court 2/5/7: 272 (Natal Archives).

318. Report of the Royal Commission on the Courts (Wellington: E.C. Keating, 1978), 3.

319. Ibid.

320. Similarly, Bonsall notes that many Irish Resident Magistrates went on to higher offices in the overseas administration: Bonsall, Penny, The Irish RMs, The Resident Magistrates in the British Administration of Ireland (Dublin: Four Courts Press, 1997), 63Google Scholar.

321. Spiller, “Early Natal,” 129.

322. Ibid., 131.

323. Ibid., 132.

324. Reid, John Philip, In a Defiant Stance: The Conditions of Law in Massachusetts Bay, the Irish Comparison, and the Coming of the American Revolution (Pennsylvania: Penn State University, 1977), 61Google Scholar.

325. Campbell, “Some Hints on Defects,” 526.

326. Reid, Defiant Stance, 59–61.

327. See, for example, Prescott v Spring, Middlesex Supreme Judicial Court Records 4–97 and Commonwealth v Cooms, Essex Supreme Judicial Court Records 11–86, both cited in Nelson, William E., Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge: Harvard University Press, 1975)Google Scholar. See also the case of Skates v State (1887) Mississippi Supreme Court, April 18, 1887, reported in Criminal Law Magazine and Reporter 9 (1887): 492, 494. In this case the jurors were escorted in a body to a yard, whereupon several of them entered a privy and several of them remained outside with the court officer, about seventy-five meters away. Although it was a public privy, there was no reason to suspect that the jury had been tampered with, and the conviction stood. This is similar to the approach taken in several Irish cases.

328. Van Prehn v Murray (1856) Natal Supreme Court 1/5/43: 458 (Natal Archives), as cited in Spiller, “Early Natal,” 140. The trial lasted eight days, and the jurors were accommodated at the Crown Hotel in Natal.

329. One juror in this case, a Joseph de Kock, known as “Fat” de Kock, was apparently “for nothing but good living at the hotel, where a bill of about £45 was run up against Mr. Murray [the defendant], who had given unlimited orders to the landlord to furnish food and drink for the jury, ‘ample wine’, as he called cider, and a very large and soft feather bed, which he sent for from his house, to save his rotund body from rolling about on the bare floor, on which they all had to sleep.” As cited in Spiller, “Early Natal,” 140.

330. Rigg's Case 26 Miss. 51, cited in Criminal Law Magazine and Reporter 9 (1887): 492, 495. The verdict in this case was set aside.

331. Skates v State Mississippi Supreme Court, April 18, 1887, reported in Criminal Law Magazine and Reporter 9 (1887): 492.

332. “All our court-houses are in public places, and the public have right of access to them. At sessions of court many persons are there congregated, either from curiosity or by reason of business for themselves or others. Jury-rooms open into the court-rooms, frequently filled with spectators, or by windows overlook the yards.” Ibid., 497.

333. Elias, Taslim Olawale, British Colonial Law: A Comparative Study of the Interaction Between English and Local Laws in British Dependencies (London: Stephens, 1962), 261–62Google Scholar.

334. An example is Malta: see Copies or extracts of reports of the Commissioners appointed to inquire into the affairs of the island of Malta, and of correspondence thereupon. Part III, 1839 House of Commons Parliamentary Papers (140) xvii.753, 107–8, where it was pointed out that this posed considerable difficulty in defamation cases.

335. See further Howlin, “Controlling Jury Composition.”

336. Although by contrast, in New South Wales, there was strong agitation for the introduction of jury trials in the 1830s. See Bennett, John Michael, “The Establishment of Jury Trial in New South Wales,” Sydney Law Review 3 (1959–61): 463–85Google Scholar. Low, Alex, “Sir Alfred Stephen and the Jury Question in Van Diemen's Land,” University of Tasmania Law Review 21 (2002): 79–120Google Scholar discusses the changes in New South Wales as model for Van Diemen's Land.

337. Anon., “Trial by Jury,” Canadian Law Review 4 (1905): 245–47.

338. Garnham, The Courts, 144.

339. King, “Illiterate Plebeians,” 287–88.

340. O'Hagan, Thomas, “Legal, Educational and Social Reforms in Ireland,” in Occasional Papers and Addresses (London: K. Paul, Trench and Co., 1884), 354Google Scholar.

341. Ibid.

342. First, second, and special reports from the Select Committee on Juries (Ireland) House of Commons Parliamentary Papers 1873 (283) xv, 389, per George Battersby, a Q.C. and a judge in the consistorial court, para. 1452.

343. Dodd, “Grievances,” 224.

344. For example, the operation of the Royal Irish Constabulary influenced the evolution and functioning of police forces in numerous colonies. Malcolm, Elizabeth, The Irish Policeman 1822–1922 (Dublin: Four Courts Press, 2006), 38–39Google Scholar cites numerous examples of how Irish policing practices impacted on developments in Australia, New Zealand, Canada, South Africa, Ghana, Egypt, and Kenya. Killingray also points out that “[f]or the British, experience of colonial policing was honed in Ireland”: Killingray, David, “Guardians of Empire,” in Guardians of Empire, The Armed Forces of the Colonial Powers c.1700–1964, ed. Killingray, David and Omissi, David (Manchester: Manchester University Press, 1999), 12Google Scholar; although Hawkins questions the assumption that there was an “Irish model” for colonial police forces: Hawkins, Richard, “The ‘Irish Model’ and the Empire: A Case for Reassessment,” in Policing the Empire: Government, Authority and Control 1830–1940, ed. Anderson, David M. and Killingray, David (Manchester: Manchester University Press, 1991), 25Google Scholar.