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Dáil Éireann debate -
Thursday, 22 Feb 1962

Vol. 193 No. 4

Short Titles Bill, 1961—Committee Stage.


I move amendment No. 1:

In subsection (2), page 2, line 14, to delete "the" and substitute "this".

This is purely a drafting amendment. It is intended to make it clear that the reference in the subsection is to cover this Act and not any of the Acts mentioned in subsection (1).

Amendment agreed to.
Section 1, as amended, agreed to.
Section 2 agreed to.

I move amendment No. 2:

In page 5, in the first column, immediately above the reference to the statute, 23 Geo. 2 c. 9, to delete "1739" and substitute "1749".

It is intended to rectify a minor error in the printing of the Bill as introduced.

Amendment agreed to.
Question proposed: That the First Schedule, as amended, be the First Schedule to the Bill.

I want to ask a question. What is the point of changing the name of 10 Hen. 7. c. 22, which we have known as Poynings' Law, and which our fathers, grandfathers and great-grandfathers down through the years knew as Poynings' Law?

Officially, legally, it has been Poynings' Act.

You are giving it a new title.

Up to now, it had only a long title and whereas everybody knew of it, we now want to give it a statutory short title—Poynings' Act.

We all know it as Poynings' Law. You do not call the Statute of Limitations the Act of Limitations.

Except that all statutes are now Acts of the Oireachtas.

You do not call Magna Carta something entirely different, because it has been known as Magna Carta down through the ages, and I suppose you could call that measure an Act, too. It is not an important point, but you are not in fact changing all the titles to the title "Act", because in the Second Schedule, the short title for the Prohibition of Subinfeudation Act is the Statute Quia Emptores, 1290. There is no uniformity in the use of the word "Act". I think the term "Poynings' Law" preserves an historical tradition and this is a desirable thing, unless some serious reason can be advanced to the contrary. I think it is a mistake to call Poynings' Law Poynings' Act. It was one of the instruments whereby the British invasion was sought to be fixed for our people for all time.

It applied English statutes to Ireland.

It was part of the process of conquest and we called it Poynings' Law. It has an historical context and a technical context.

My researches go to show that down through the years it has been known variously as Poynings' Law and Poynings' Act. Both terms have been used by lawyers down the years. I do not think the Deputy is right in saying it has always been universally known as Poynings' Law. It has been known to lawyers as Poynings' Act.

Do not mind what the lawyers did. The universal usage among the people has been Poynings' Law and the reason it was so widely known was that we all recognised it to be part of the machinery of the attempted conquest. In fact, its correct title, in technical legal language, is the 10th of Henry 7, Chapter 22 of the 7th year of his reign. We confer upon him now the title for the purpose of our administration. We have substantially repealed that whole operation but it is only fools who seek to obliterate the landmarks of their history.

Perhaps the Deputy did not hear what I said in my Second Reading speech. May I repeat part of it on this point:

The Second Schedule contains certain English statutes which are regarded as having been applied to Ireland by Poynings' Act, 1495. Perhaps a few words about that Act would be appropriate. Poynings' Act is one of a series of Acts passed by the Parliament convened by Sir Edward Poynings, Lord Deputy, at Drogheda in 1494-5. This Parliament was called to assist the Lord Deputy in his task of reducing Ireland to "whole and perfect obedience". The terms "Poynings' Act" and "Poynings' Law" have been employed ambiguously both by historians and lawyers. Sometimes they are applied to the whole series of statutes passed at that Parliament, sometimes to one of those statutes —Chapter 4 of Henry 7 (Ireland)— which provided that no Irish Parliament was to be held until the proposed legislation had been sent by the Lieutenant and the Irish Council to the English Council and returned under the English great seal; at other times, they are used to indicate the statute Chapter 22 of 10 Henry 7 (Ireland). The latter is the statute to which the present Bill refers and to which the short title Poynings' Act, 1495, is assigned, putting an end to the ambiguity so far as legal usage is concerned.

I think we would still be best advised—I certainly would—to describe the statute which settles the extent of the application of English statutes to Ireland as "Poynings' Law" and maintain that as a monument to the success of our people in having ultimately frustrated that design. Are we to take it now that the title "Poynings' Law" is to disappear from our language and that the statutory title henceforth will be "Poynings' Acts"?

No. The phrase Poynings' Law will be used by historians.

I think that is mistaken. I want now to raise a matter of detail. In the First Schedule under the year 1634, reference is made to "10 Charles I, c.15—Maintenance, champerty and embracery; application of English statutes". We give that the short title of "Maintenance and Embracery Act, 1634". Why is champerty left out?

Because this particular statute does not refer to champerty at all.

What puzzles me is that it is set out in the title of the Act —Maintenance, champerty and embracery. That is how it is designated in the English statute. If it does not refer to champerty, then why is champerty in the second column at all?

Thirdly, while it may be desirable to bring the titles of statutes up to date, it seems to me that the Minister, in going through these ancient titles, might have selected some which could, with propriety, be repealed and removed from the Statute Book altogether.

This is the first step in that process.

May I take it that, when the Minister returns to the charge, he will consider it unnecessary to retain on the statute book 2 George I, c. 16, which he now describes as the "Packing of Tallow Act, 1715"? There are two Acts: the Servants Act and the Packing of Tallow Act. However, if the Minister tells me this re-entitlement of Acts is the first step in a general procedure for removing a large number of them from the Statute Book, I am prepared to accept that, but it seems to be a rather roundabout way of undertaking the task. Why you should not put in a Fourth Schedule repealing all these obsolete statutes, without going through this performance, I do not know. However, if the Minister tells me he has been advised this is the better way, I am prepared to accept it; but it seems to me to be a left-handed sort of way of going about it. I still do not understand why the Minister has not included the word "champerty" in the 1634 reference in the First Schedule. I should like the Minister to tell me why champerty is mentioned in the second column if, in fact, the Act has no reference to champerty.

The simple explanation for that is that champerty is, in fact, a form of maintenance. There is no reason why it should not go into the Short Title, but, if one wants to make the Short Title short, one naturally omits a word which is really redundant. Champerty comes within the ambit of the word "maintenance".

There were two separate offences—one, champerty and the other, maintenance.

Champerty is a form of maintenance and so maintenance can be considered to include champerty.

I understand there are two separate offences—maintenance, champerty and embracery. However, it is not of any great significance, but I cannot see why you should have it in one place and not in another.

Question put and agreed to.

I move amendment No. 2:

In Part II, page 8, in the first column, immediately above the reference to the statute, 31 Edw. 3, to delete "1257" and substitute "1357".

This also is to rectify a minor error in the print of the Bill as introduced.

Amendment agreed to.
Second Schedule, as amended, agreed to.
Question proposed: "That the Third Schedule be the Third Schedule to the Bill".

I am obliged to say "tut tut" to the Minister for Justice. The Minister tells me that, in a statute referring to maintenance, reference to champerty is unnecessary. Now, some people have alleged against the Minister for Justice that he is a little too facile, too ready to make an answer off the cuff, without strict attention as to whether or not it is wholly correct. I have defended him against that charge and said that I have always found him to be both accurate and careful. I am now discovering that he has more than one foot of clay because he has told me reference to maintenance covers champerty, and vice versa, but I find in the Short Title prescribed under Schedule Three, the Maintenance and Champerty Act of 1275. But that is not all. Later on, I find the Champerty Act of 1305. Even more astonishing still, I find a separate Act—the Maintenance Act of 1326. So the explanation the Minister was gracious enough to offer in respect of the matter raised on the First Schedule with special reference to 10 Charles I, c. 15 does not seem to be as simple as he thinks.

I think I can establish the logic in the whole matter.

It would be much shorter if the Minister said: "I have put my foot in it and you have caught me out", and got on with the job.

First of all, in 10 Charles I c. 15 we had of necessity to have the two words "maintenance" and "embracery" in the Short Title. Because of the particular provisions of that statute, the word "maintenance" in the context could be taken to cover champerty. We are, therefore, justified in omitting it from the Short Title. When we come to the 1275 statute, that statute deals specifically with maintenance and champerty separately. It distinguishes between them. It is, therefore, logical to describe it as we have done. When we come to 3 Edw. I and 1 Edw. 3, these are separate Acts dealing with champerty and with maintenance individually. The justification for using maintenance and champerty in the Short Title of 3 Edw. I is the construction of that statute which, as I say, deals specifically with both separately.

When the Minister reads over that interpolation, he will not think he has clarified the issue very materially.

Question put and agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Wednesday, 28th February, 1962.