Lost Legislation Located

Randolph Jones, Research Associate, Beyond 2022.
Proposed robes for the Chief Justice of the Irish Free State c. 1922. Kitty MacCormack, Dun Emer Guild UCDA/P4/169/8 Photo credit: Courtesy UCD Archives]

In 2007, the Irish Statute Law Revision Act repealed certain statutes enacted before 6 December 1922 which ceased to have effect or had become unnecessary. The Revision Act also identified those statutes of ‘a public and general nature’ that were to be retained and to which short titles were given for ease of reference. This resulted in some interesting survivors, such as the statute passed during the reign of Edward IV which required ‘lords to wear their robes in parliament, judges and barons to wear their habits and coifs in term time’ – presumably to ensure that the legal personnel of today appear suitably attired in court!

The Statutes at Large. Photo credit: Public Domain

This massive housekeeping exercise resulted in the scrutiny of every known statute passed or accepted for use in Ireland, going back to the last quarter of the twelfth century. Only one original statute roll survives from the medieval and early modern period, and the Attorney General’s Office had to rely on printed copies in several volumes published from the nineteenth century onwards. These works are listed in paragraph 8 (1) (a) of the Act, although it is clear from the separate schedules of statutes retained and repealed, that other sources were also used.

These tomes mainly drew on the original statute rolls that were once held in the Public Record Office of Ireland; but by the beginning of the nineteenth century there were several gaps in this series: indeed, no original rolls had survived prior to 1427. The compilers of these works therefore relied on individual statutes copied into other record sets, such as the patent, plea, and exchequer memoranda rolls, as well as summaries made by antiquarians.

As the work of the Beyond 2022 project progresses, additional statutes are being found. For example, it is known that a parliament was held ‘in Dublin on the Monday next after the feast of St. Martin the Bishop, 17 Henry VI (17 November 1438) before Lionel, Lord Welles, then Lieutenant of Ireland’ thanks to the summons being copied into the register of John Swayne, the archbishop of Armagh; but none of its statutes were thought to have survived. However, details of two have since come to light.

Speed’s map of Dublin 1610 – excerpt. St Mary’s Abbey, Dublin, north of the Liffey. (Marked as No. 2) Photo Credit: British Library @ Flickr Commons

One is mentioned on the reverse of Dublin City’s Franchise Roll for the years 1468 to 1512, which informs us ‘that no man should be a sheriff or coroner or any other officer, both within the liberties and without, who exceeds the age of sixty years against his will.’ Another is mentioned in the repertory of the Irish exchequer memoranda rolls held in the College of Arms in London. This states that the abbot of St. Mary’s Abbey, Dublin [between modern-day Capel Street and the Fruit and Vegetable Market] ‘and his predecessors, ever since before the conquest of Ireland, had held their lands, tenements and possessions in pure and perpetual alms, and that at no time when the said house has been vacant due to the death, retirement or resignation of any of the predecessors of the aforesaid abbot, were the temporalities or possessions of the said house taken by escheators or any other minister of our progenitors or predecessors, or seized into the hands of the Crown.’ The same statute confirmed the new abbot’s right to take immediate possession of the temporalities of his abbey, which was successfully pleaded in the court of exchequer in 1518.

Lambert Simnel, pretender to the English throne. Photo credit: Wiki commons

The parliament held during the fifth year of Henry VII’s reign (1489-90) is another poorly documented one. The roll for this disappeared a long time ago and only a handful of its statutes are known from other sources. Details of one passed in favour of Patrick Birmingham of Baldongan, Robert Barnewall, and Elyne (or Ellen) Strangways, the widow of Philip Birmingham, Chief Justice of the King’s Bench, who died on 30 January 1490, has since come to light. All three jointly petitioned that ‘they (Patrick, Robert and presumably Elyne’s husband Philip) had lately (July 1488) made their homage to Richard Eggecombe, ‘Chevaler,’ commissioner constituted (by Henry VII) for that purpose (of bringing the lords of Ireland back to the king’s allegiance following the Lambert Simnel rebellion in 1487), though the same is not now on record; wherefore it is enacted that they be freed from such homage.’ It seems that the problem of missing paperwork in official institutions is nothing new! The statute was successfully pleaded in the court of exchequer and subsequently enrolled in the memoranda roll for the years 6 and 7 Henry VII, after all three were distrained by the sheriff of Dublin for allegedly not rendering their homage. A substantial fee was normally payable into the exchequer when tenants rendered homage on first taking possession of their lands held directly from the king, or a smaller one annually if they chose to ‘respite’ or delay it.

Letters patent exemplifying statutes issued at the request of individuals or corporate bodies, usually provide us with their full text, the contents of which would otherwise be known only through the summaries made by antiquarians. One such statute was ‘a resumption and revocation of all alienations, feoffments, grants, leases, and confirmations, made of any lands, tenements, or hereditaments, belonging to the house of St John’s beside Waterford, from the ninth year of King Henry VI’ (1433-31), which was passed during ‘Poynings’ parliament’ in 1494-95. However, an original exemplification, sold by Adam’s, the Dublin auctioneers in 2012, informs us that the statute was passed on the petition of John Cauntelo, the prior of Bath abbey in England.

As further substitute material is identified by the Beyond 2022 team, more previously unknown and poorly summarised statutes may also be found – perhaps requiring a future amendment to the 2007 Revision Act?

Proposed robes for High Court judges in the Irish Free State UCDA/P4/169/5 Photo credit: Courtesy UCD Archives

For more on the Kennedy Papers in UCD Archives, Free State judges’ robes and judicial fashions in general – see Meadhbh Murphy’s informative and entertaining 2017 blog.