WRIGHT v. FITZGERALD REVISITED
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb00686.x |
| Author | P. O'HIGGINS |
| Published date | 01 July 1962 |
| Date | 01 July 1962 |
WRIGHT
v.
FITZGERALD
REVISITED
THE
general importance of the question, how far will an Act of
Indemnity passed after a civil commotion protect the authorities
concerned in respect of all acts done by them in the course of
suppressing the disturbance, entitles one to re-examine the judg-
ment in
Wright
v.
Fitzgerald.'
This
case, about which little
information is given in the textbooks
on
Constitutional Law, is
supposed to establish the rule that
"
an Act of Indemnity is
no
defence where the conduct sought to be justified was not bone flde
directed to the suppression of the insurrection."
It
is usually
added that
Wright
v.
Fitzgerald
is the only case brought against
the military authorities after
a
rebellion which has proceeded to
j~dgment.~ Martin
B.
in
PhilEips
v.
Eyre
asserted, with reference
to
Wright
v.
Fitzgerald
:
('
Only one action brought for acts done
during the great Rebellion [of
1798
in Ireland] was successful."
An examination will show however that there are other Irish
cases in which such actions were brought, some of them with
success. Furthermore, that the principle for which
Wright
V.
Fitzgerald
is cited above cannot be accepted without qualification."
Wright
v.
Fitzgerald
is one of a series of cases arising out of
the activities of the British authorities in Ireland during the last
decade
of
the eighteenth century. Faced with a widespread move-
ment of the Irish people for the severance of the link with Great
Britain, with the threat of an imminent invasion from France
This report is largely taken from The Trial
of
T.
J.
Fitzgerald, late high sherifl
of
co. Tipperary, at Clonmell
aaaizes.
Mar.
18,
1799,
on
an
action
for
damages brought against him
bg
mr. Wright,
for
having received, by his order, lashes
on
29
May
1798:
with the proceedings in
Parliament on his petition,
bc.
(Dublin,
1799).
Although the date
of
the trial
is given
88
March
18
on
the title page, at p.
3
of
the pamphlet the date given
is
March 14.
It
would seem that the former is probebly the correct date,
as
according to the Dublin Journal, Februery
28,
1799,
p.
4,
col. 1, March
18
we8 set down for the
S
ring Assizes
of
the Leinster Circuit at Clonmel.
2
D.
L.
Keir and
F.
H.
Eewsoa, Cases
in
Constitutional
Law
(4th ed., Oxford.
1964),
.
436.
See
also
W.
Fors
th, Case8
and
Opinions
on
Constitutional
Law
(Eondon,
1869),
.
213;
0.
&bod
Phillips, Constitutional
Law
(2nd ed.,
London,
1967),
pp. 641 and
6.18;
E.
W.
Ridges, Constitutional Law (8th ed.
by
G.
A. Forrest, London,
1950):
Sir
James FitzJames Stephen,
A
History
of
the Criminal
Law
of
England
(3
vole., London,
1883),
Vol.
I,
pp.
916-216;
E.
C.
8.
Wade and
G.
Cfodfrey Phillips, Constitutional
Law
(6th ed. by
E.
C.
9.
Wade, London,
1960,
p.
378).
Cf.
R.
v.
Allen
[19.21]
2
I.R.
241
at
1
27
Howell's State
Trials
769.
-.
269
(per Molony C.J.).
3
Keir and LaWfiOn,
op.
cit., p.
436;
Ridges, op.
M't.,
p.
258.
4
(1870)
L.R.
6
Q.B.
1.
5
L.R.
6
O.B.
1
at
11.
At the outset
an
apology should be made
for
the fact that referehces to many
of the Irish C8ReE to be cited are not from law reports, but from pamphlets
and other serarlrlary sources.
Owing
to
the
destruction,
in
the course
of
the
civil war
in
1922,
of
the records preserved et the Four Courts in Dublin
it
is
not possible to give other than secondary authorities.
See
8.
C. Ratcliff,
''
The
Destruction of Public Records
in
Dublin,"
Bullqfin
of
the Institute
of
Historical Research,
'2
(192.1),
pp.
8-9;
H.
Wd,
The Destruction of the
Public Records," Studies,
I1
(1922),
pp.
363-370.
418
To continue reading
Request your trial