of whom England is particularly proud. Criminal justice in all minor matters is entrusted, except in the large towns, to these unpaid magistrates, who are appointed by the Lord Chancellor, and are, for the most part, landowners, great or small.2 If the feudal system has not in England prevented a landlord from being an impartial judge it is because of England's strong sense of national unity, and her tradition of public spirit and service. In Ireland, on the contrary, the landlords, as the descendants of the Anglo-Saxon spoilers, are separated from the people by a threefold barrier, historical, political and religious. Whether he be landlord or agent, the Irish Justice of the Peace is apt to exhibit undue harshness towards a Nationalist, and in Ulster, at any rate, undue favouritism towards an Orange delinquent. Selected from a very small class, and for reasons of politics, he often shows a great lack of professional capacity.3 "If you find a magistrate able to state a case,” said Baron Dowse, "you ought to send him to the British Museum! You might as well ask them to write a Greek ode." 4 Absenteeism, that special plague of the Irish gentry, raises a further obstacle to the due discharge of the judicial function which is so dear to the English country gentleman. They refuse to serve, or they serve badly; and as a consequence it has been found necessary to strengthen the Irish Justices of the Peace by tutors and deputies unknown in England. At Quarter Sessions the County Court Judge of the district, while nominally acting only as Chairman, in reality does all the work. For Petty Sessions the Lord Lieutenant has the right to appoint,5 and in fact does appoint where he thinks necessary, stipendiary and removable Resident Magistrates

2 Chairmen of County and Rural District Councils are ex-officio Justices of the Peace. There are more than 5,000 "J.P.'s" in Ireland, the landlords being in a great majority.

3 In May, 1904, at Ballinasloe Petty Sessions, two women were sent to jail for a month with hard labour for the theft of a sack of turf. (Hansard, May 24th, 1904. Answer to a question of Mr. John Roche). 4 Hansard, July 5th, 1888.

5 Constabulary Act of 1836 (6 and 7 William IV., c. 13).

who, whether they sit alone or with the Justices of the Peace, really control the courts of summary jurisdiction.

These Resident Magistrates, wholly dependent on the Government, like our French juges de paix, but endowed with much wider powers-they can inflict a sentence of six months' imprisonment-constitute an entirely foreign element in the magistracy of the United Kingdom. The exception made in their case to the great principle of judicial independence appears all the more deplorable, in view of the fact that they are really police officers as well as magistrates. For the most part they are retired police inspectors, military officers, or simply sons of landlords and government officials, all anti-Nationalist in feeling and of very questionable competence.6 As magistrates they have the authority of the Lord Lieutenant to direct all the operations of the police. This is the sorry pass to which the great principle of the separation of powers has come in Ireland; and it need hardly be said that in times of disturbance the system gives rise to the greatest scandals. In 1882 Mr. Clifford Lloyd, on arriving in Kilmallock, started to thrash, with his stick, people who were not "moving along" quickly enough! Το send such a man into a disturbed district, was assuredly, as one of his colleagues declared, to provoke bloodshed. In 1887, Mr. Roche, at Tralee, sentenced a political agitator" to six months' imprisonment, and when the people cheered the prisoner, ordered a police charge on the instant. In the same year he attended en amateur the famous Vandeleur evictions; and, the operations being concluded, had those who resisted eviction brought before him, tried them, seated on a wall with his hat on

6 Major Rolleston called in question on one occasion the legal principle that a prisoner should be presumed to be innocent until proved guilty. Major Traill explained, by way of excuse, that he had had no legal training"! (T. P. O'Connor, The Parnell Movement, chs. 16 and 11). The Government did not exercise any very rigid scrutiny of candidates for the Resident Magistracy. Among the many undesirables appointed were a former officer, who had been dismissed his regiment, an official who had been dismissed from a post in the Birmingham police, and a former captain of infantry from the Cape, who had been hunted for breach of trust.

his head, and sent them straight to prison. The sentences in these cases were determined, not by the gravity of the offence, but by the "need for making examples." In 1888, in County Clare, certain peasants were sent to jail for from two to four months for refusing to sell turf to the police. In 1902 members of the United Irish League received sentences of great harshness for attempts at intimidation" which had been without effect; journalists for articles which were, perhaps, somewhat heated but quite general in their terms and not directed against any individual; simple peasants for having spontaneously and without violence "boycotted" a grazier in the market, or hissed a grabber. Two Members of Parliament were, in the same year, sent to prison for three and four months respectively for having at a meeting at Caltra, in County Galway, conspired with divers other persons unknown, illegally to compel divers person unknown to surrender divers lands unknown, and incited divers other persons unknown, to do likewise!

There was never a speech delivered in Ireland on the land question but would come within the scope of such an indictment. Instances of vindictive severity could be multiplied. During the Coercion crisis of 1901-2 the Resident Magistrates took to increasing their sentences for political offences by the addition of hard labour. This meant three days a month on a diet of bread and water and fifteen nights on the plank bed; and the sentence carried with it five years' disqualification for membership of the local Councils. In 1887 and 1888 the Resident Magistrates, in order to deprive their victims of the right of appeal-allowable only when the sentence exceeded one month-adopted the practice of giving cumulative sentences of one month each on several different counts. Such were the men to whom was entrusted the administration of such a law as the Coercion Act. Is it a matter for wonder that in the eyes of the Irish people these judges were no judges at all, but mere agents of the

7 Annual Register, 1888, p. 100, 121.

Castle, and that the "justice" which they dispensed was regarded as a mere legal farce?

But the strangest and most abused power of all was that which they exercised under the Common Law, rendered explicit in a Statute of the year 1361 (34 Edward III.). This Act gives to all magistrates, and by consequence, of course to Resident Magistrates, the power to require bail to be of good behaviour from "all that be not of good fame,"8 and if bail be refused to send the person summoned to prison for a period of time which is left to the discretion of the magistrate. There is no

jury, and no right of appeal; it is not necessary for the Crown, nor competent for the person summoned to produce witnesses, for, as the legal writers say, it is a question not of punishment but of prevention. It is the alternative, as the phrase runs in Ireland, of "Bail” or “Jail.” This power is possessed, it is true, by magistrates in England, and is exercised by them in about a thousand cases in the course of a twelvemonth.9 But in England it is used only against vagabonds, persons who can give no account of themselves and are a menace to the public peace. In Ireland the Resident Magistrates use it as a weapon against politicians, members of the League, and popular orators. Moreover, they add a rule of bail to ordinary sentences-a thing which is never done in England-so that a prisoner, if he refuses to find bail, has his sentence doubled. More amazing still, the power of "Bail" or "Jail" is enforced against defendants who have been found innocent of charges preferred against them. One and the same sentence declares that they are not guilty of any offence, and orders them to find bail to be of good conduct for the future! It is in truth, as English Liberals declared in Parliament when these facts were

8 The "not" was by a curious accident omitted from the old Statute. The Act of 1361 was extended to Ireland ipso facto by Poynings' Law in 1495. Cf. Law Times, June 28th, 1902. Comte De Franqueville,

II., 280,

9 Between 1893 and 1901 there were 9,434 cases in England, 6,398 in Ireland. (Hansard, June 25th, 1902).

made known in debate, a caricature of justice, a travesty of law; summum jus summa injuria.10

66

VI. THE JUDGES OF THE SUPERIOR COurts.

From the Justice of the Peace and the Resident Magistrate we pass to the County Courts and the High Court. Here at least we find judges, in the real sense of the word, invested, as in England, with a large measure of dignity and independence, invested also with very important powers and responsibilities in virtue of that glorious uncertainty of the law" which affords the Anglo-Saxon such profound gratification. Let us hasten to say, however, that the English judiciary differs very widely from the Irish judiciary in origin and consequently in character. In England politicians are certainly not without saying their word with regard to appointments. But a judge is chosen as a settled rule only from among the leaders of the Bar, and the moment he assumes his high office he puts behind him party differences. It would be difficult to find anywhere a body of men so high in character, so superior to prejudice and passion, and so deeply imbued with the spirit of impartiality as the English Bench. Politics, on the contrary, play the chief rôle in judicial appointments in Ireland. Whether they are chosen from the ranks of the Irish Unionist Party in Parliament, or from the Crown Prosecutors at the Bar,' they obtain advancement as the price of services

10 Hansard, March 13th, 1902. The magistrate's power of "Bail or Jail" is also possessed a fortiori by the King's Bench, though it adds little to the dignity of that Court. It has been exercised by the King's Bench in three cases during the last twenty-five years :-(1) R. v. Davitt, Healy and Quinn in 1882; (2) R. v. Dillon, 1886 (Bail in £2,000 or six months imprisonment); (3) R. v. William Redmond and Lynam in 1902.

I Contrary to English practice the Crown in Ireland has on every Circuit its titular and permanent Crown Counsel or Crown Prosecutor. Nomination to this position is the first step up in every successful legal career; but, to secure it, a repudiation of all national and patriotic ideas is necessary. This is a repudiation which many of the most talented young men refuse to make, although they know that they thereby close against themselves the path of promotion.