Custos Rotulorum and County Governor to 1831.

The distinction between judicial and administrative functions did not become distinct until the 1880s. In Co. Cork the control of civil record was maintained by the chief civil officer the Custos Rotulorum and military affairs by the Governor often the same person.

7 Geo. 2 (1733)

●  c. 6 An Act to prevent Persons converted from the Popish to the Protestant Religion, and married to Popish Wives, or educating their Children in the Popish Religion, from acting as Justices of the Peace.

Custos Rotulorum.

1835, Earl of Shannon, Castlemartyr and 7, Connaught Place, London

Lords Lieutenants of County Cork (1831-1922)

Following the Custos Rotulorum (Ireland) Act 1831, the position of Governor was replaced by Lieutenant of the County. The Lord Lieutenant of the County was chiel civil and military official in the county. He commanded the county militia, appointed Deputy Lieutenants was the head of the magistry and recommended to the Lord Chancellor all appointments for local magistrates.

Henry Boyle 2nd Earl of Shannon 1831-1842

James Bernard, 2nd Earl of Bandon, 1842-1856

Edmund Burke Roche, 1st Baron Fermoy, 1856-1874

Francis Bernard, 3rd Earl of Bandon, 1874-1877

James Francis Bernard, 4th Earl of Bandon, 1877-1922[1].

Magistrates:

Magistrates were appointed generally after nomination by one of the County’s Lieutenant such as the Earl of Bandon, Lord Fermoy

There was a strict protocol, in 1819 many of Cork’s leading citizens, Magistrates, and Bankers supported the application of Mr. O’Sullivan, Paper manufacturer of Dripsey but Dublin Castle rejected it as the proper protocol of to whom it was to be addressee's was not followed,

The procedure for appointment was by Warrant from the Lord Chancellor for the issue of Commissions at the Crown and Hanaper’s office, Dublin. It is interesting that Chatterton, the Clerk of the Crown in a 1831 Parliamentary Return said he was unable to say who was a Magistrate as The Lord Chancellor’s Office had ceased to advise him of appointments. This office was abolished in the judicial reforms of the 1870s setting up the present High Court system continued into Independent Ireland.

Time and time again the official return in Parliament such as those superseded in 1830 are contradicted by contemporary newspaper account f those supposedly retired continuing to act.

Their functions were primarily legal and they performed at perhaps a slightly lower level than the present District Justice. Many Ministers, if not Curates of the Church of Ireland pre 1870 were Magistrates remembering that until 1870 it was the State Church.

They also seemed to have some miscellaneous functions tied to the Grand Jury Presentments relating to local works and their authorisation. Acting as leading local citizens they would be doing a lot of what a local TD or Councillor would now do.

There is plenty of contemporaneous evidence of the arbitrary and sectarian nature of many of the Magistrates. The authorities from perhaps 1810s seemed anxious to change matters. Firstly a number of Catholics were appointed including a number of members of the Durrus O'Donovan family, Redmond Barry, Glandore and others. The clerk when he sat with the magistrates probably exerted increasing influence. By around 1830 Dublin Castle started to phase out the old system of magistrates by introducing the Petty Session Courts presided over by a Resident Magistrate (Remember Somerville and Ross 'The Irish RM' ?) often they would be retired British Army Officers on half pay, District Inspectors RIC or Barristers but did not have to be legally qualified. They sat with two Magistrates and a Clerk. The rules were codified by Bram Stoker (Of Dracula fame) who was Chief Inspector of Petty Session Clerks c 1880.

The Resident Magistrate was a unique Irish legal Office unknown in the rest of the Common Law world.

In pre-independence Ireland, a Resident Magistrate was a stipendiary magistrate appointed to a county (outside of the Dublin Metropolitan Police District) to sit among the justices of the peace at Petty Sessions in that county. They were appointed by the Lord Lieutenant of Ireland (in reality, therefore, by the Dublin Castle administration in Ireland). The Petty Sessions in the early 19th century replaced the Manor Courts which were inefficient and often corrupt.

Petty sessions were originally held by Justices of the Peace, who were lay people (and in Ireland, typically members of the Protestant Ascendancy and as the 19th century advanced local eminent citizens), as preliminary hearings for Quarter Sessions and the assizes). From 1836, the justices acted under the supervision of resident magistrates. The Petty Sessions (Ireland) Act 1851 regulated petty sessions, organising the country into petty sessions districts and providing for the appointment of clerks of petty sessions. A series of Summary Jurisdiction (Ireland) Acts, beginning in 1851, vested petty sessions with summary jurisdiction in minor criminal matters. Both these Acts are still on the statute book, though heavily amended. In Dublin, the divisional magistrates exercised similar power to petty sessions under the Dublin Police Acts.

In practice the Clerk of Petty Sessions held considerable sway having a knowledge of law even if rudimentary and procedure.

One unique feature of the Irish administration of justice related to local courts. These were originally administered by unpaid amateurs known as Justices of the Peace. McDowell notes that in England, Justices of the Peace were traditionally landed gentlemen. In Ireland, however, “where the landlord was often an absentee and where most of the landlords were Protestants and the majority of the tenants were Catholics and where agrarian questions were acute, there were obvious difficulties in making appointments to the bench. Bridgeman similarly cites the small size of the rural gentry in Ireland as leading to a reduced pool of possible Justices of the Peace. This meant that a number of essentially unsuitable men were appointed to these posts and “one of the main concerns of government in attempting to suppress disorder was to improve the efficiency of the county magistrates. Reforms were introduced in the 1820s which required these amateur justices to sit jointly and act publicly at petty sessions. From the 1830s, the bench was criticised for its religious composition, and justices were accused of being politically biased. An improvement in the administration of local justice was achieved through the introduction of paid, professional justices known as stipendiary magistrates. This was supplemented by and a professional police force.77 The paid magistrates were to reside permanently in the district, and became known as Resident Magistrates.78 They continued to operate alongside the unpaid magistrates, and inevitably tensions between the two branches characterised the mid-nineteenth century as the boundaries of their respective roles were not always clear. The unpaid magistrates became increasingly different from that of England and Wales. Nineteenth-Century Criminal Justice bitter and disillusioned as the professional magistrates superseded them in various areas. Agrarian disturbances in the first half of the century gave rise to a need for increased centralisation of law and order and an erosion of the magistrate's’ discretion over criminal justice policy.

The more I look at the Magistrates I think they are one of the keys to understanding the 18th century.

From 1690 to around 1795 they were exclusively Protestant.

This label encompassed everyone from Black/Orange, to Crypto-Catholic, Huguenot, Quaker, Presbyterian, and all are found in the ranks.

Going on manes you have Gaelic Mccarthy, O'Sullivan, Cronin, O'Driscoll, Hiberno-Norse/Danish in Coppinger, Cotter, Galwey, Old English/Norman in Barry/Roche, post Elizabethan English and Welsh in Bernard, Jephson, Beecher, Cromwellian, Evanson, Huguenot, in some of the Cork City names in the 18th century Cork Merchant, Hoare.

Re payment I think they class the Magistrates came from were simultaneously strangers locally and also one of the community. The conquest of Ireland although ostensibly complete was resonant with memories of 1642, 1690 and of course later 1918-1922. The Magistrates saw themselves as outposts to hold the line even some of the houses built i the mid 18th century had defensive features.

The Magistracy[2]

The term magistrate in England and Ireland was a synonym for a Justice of the Peace. The office in Ireland, unlike in England, was almost entirely a judicial one, the administration of the county being in the hands of the Grand Jury. The original duty of magistrates seems to have been the administering of oaths. Magistrates were empowered to commit an accused person to trial before a judge and jury if they were satisfied that there was a prima facie case against him. In Ireland this was done by accepting sworn testimony or affidavits without question. They took bail from both parties, one to appear to prosecute (even in criminal matters), and the other to appear to defend himself. They had summary jurisdiction with regard to minor offences, and had powers to grant licences. If they were justices for the county they sat, along with the Assistant Barrister, at Quarter Sessions. They only could administer oaths legally. As Justices of the Peace they were especially bound to assist the mayor or sheriff in times of civil disturbance, and the army, when aiding the civil power had to act under their direction. If a sheriff or magistrate read the Riot Act the army was empowered to fire on the mob. They were entitled to fees for taking affidavits and recognisances but their clerks were not. A recognisance was a deposit given by the accuser who swore the affidavit to ensure that he would be present at the assizes to prosecute. Bail was the deposit paid by a defendant to ensure that he would appear.

The County Governor was supposed to enquire and report to the Lord Chancellor who were suitably qualified persons in the county with an independent income from land of at least £200 for appointment as magistrates. At the beginning of the century the system of appointing was haphazard. Army officers temporarily stationed in the county, public officials, likewise, and clergymen, could be also appointed. But nobody enquired if they were still in the county, if they ever held a court, or were still in possession of their mental faculties. A magistrate held his summary court in his own house, and could expel the public if he wished. By an Act of 1805 he could deal with cases up to £10 in value. Lord Cloncurry noted that a poor man might walk half the length of the county to find a magistrate willing to listen to his case.

After 1800 the Government began to consider the reform of the magistracy. It resisted calls for a wholesale purging of the magistracy, feeling that the removal of old, incapable, and inactive magistrates was too harsh. It preferred to extend the system of police magistrates which was being tried in Dublin. In the counties these were called stipendiary magistrates or resident magistrates. Eventually about two were appointed to each county. Attention in the past has been focussed on the weaknesses of the system of magistrates in counties where resident gentlemen were few. These complaints were not necessarily true for example in Ulster.

The magistrates themselves reformed their courts of summary jurisdiction without awaiting legislation by the Government. Lord Cloncurry was a great advocate of petty sessions where two or three magistrates joined to hold their courts in common. These joint sessions had no more authority than separate sessions, but the fact that magistrates sat together contributed to upholding the dignity of the law. No legal training was provided for magistrates, whether county gentlemen or stipendiary magistrates. They were expected to purchase copies of privately produced handbooks for magistrates.

I have[3] been researching the JPs and yes, you are right - lots of Bernards in that position. To be eligible to be elected as a magistrate, the person had to be a landowner with a certain level of income hence the reason why so many were protestant gentry (I don't know the income level yet). The Peace Preservation Force appears to have pre-dated the title 'stipendiary magistrate'. Even though it seems that this force was only in existence from 1814 to 1822, they were definitely still in Bandon until 1834. Following the departure of Captain Vignioles and Roberts, a stipendiary magistrate was appointed much to the consternation of the magistrates with letters going backwards and forwards between the magistrates and the Lord Lieutenant. I think that Vignioles was the magistrate and Roberts the chief constable but I need to double check this. I bet that the Peace Preservation Force were paid so that Vignioles was actually a stipendiary magistrate just with a different description attached.

Whilst I have researched some of the Bandon magistrates in detail (not as magistrates but who they were connected to, landholdings etc), some that weren't previously on my radar screen are now of much interest, eg Rev Somers Payne. How on earth could he have been an impartial magistrate when he was Grand Master of the Orange Lodge and a magistrate at the same time? The Payne home became St Patricks, Upton so clearly that house had many many stories attached to it.

In his book 'A New Anatomy of Ireland' Toby Barnard gives statistics which he collated from various documents in the National Library and National Archives:

Size of county commissions of the peace

Cork.

1720 116

1760 191

1776-7 216

and we know from Lewis that by 1840 282.