THE REPUBLICAN DÁIL COURTS: A REVOLUTIONARY IRISH LEGAL SYSTEM Not much is generally known about modern Ireland’s first attempt at an independent, fully sovereign courts system, now commonly known as the ‘Dáil Éireann Courts’ ( or simply the ‘Dáil Courts’), ‘Sinn Féin Courts’ or ‘Republican Courts’. History has tended to ignore the idea of an independent Irish legal system in favour of the more pressing and political issues of the time: Yet, to certain groups and to the people of Ireland, this was one of the most significant steps towards Irish independence, as well as a fascinating subject for anybody interested in Irish legal history. Many historians argue that these courts were one of the most successful blows dealt against the British Administration in Ireland;[i] In the view of many historians the creation of rival governmental agencies, irrespective of the degree of military success attained, was the most striking and original policy of the Irish revolutionary movement. This phenomenon was regarded often with surprise and bemusement by the international community, much to the absolute fury of many members of the British parliament. However, by the time of the First Dáil in 1919 this was by no means a new idea. Perhaps the earliest mention of such courts is that found within Arthur Griffith’s original 1905 Sinn Féin Policy, in which he envisioned a system of national arbitration courts based on old, native Irish legal codes.[ii] Interestingly, well before they were officially established, a number of these ‘arbitration courts’ were in operation in certain areas of post-1916-Easter-Rising Ireland. Localities in the south and west of Ireland, and in particular around West Clare, set up local arbitration courts under the supervision of, or at least supported by, Sinn Féin or the Volunteers. This paved the way for a smooth transition of jurisdiction to the newly established Dáil Courts, and the continued co-operation and support of the local people. Establishment of the ‘Dáil Courts’: Throughout the country, national arbitration courts had been up and working following Decree No. 8 of the Dáil in June 1919,[iii] calling for their establishment. Regulating and finalising the details of these courts was a complicated and never fully completed task, owing to their subversive, underground, and scattered nature, however attempts were made to produce a standardised means of operation. In May 1920, the policies and regulations for the lesser courts, the Parish and District Courts, were finalised. There were also plans to produce a written constitution for these courts and in early September 1920 the four ‘professional’ judges of the upper courts, the Supreme Court and Circuit Courts, attempted to create a draft constitution, however a finalised constitution never came to fruition.[iv] This lack of standardised procedure was probably the greatest failing of the Dáil Courts, leaving an awful lot of the decisions on how precisely to run the courts to the judges, and resulting in mild variation from district to district. This problem was somewhat alleviated when in January 1921 the Minister for Home Affairs, Austin Stack released a pamphlet regarding the newly established court system, entitled “Saorstát na hÉireann. Judiciary. Rules and Forms, Parish and District Courts, Aireacht Gnóthaí Dúithche (Department of Home Affairs) 1921”[v] consisting of three parts entitled: “The Courts of Justice of the Irish Republic: Provisional Constitution; District Courts Rules and Forms; and Parish (Minor) Court Rules and Forms.” This pamphlet, often referred to simply as ‘Judiciary’, outlined the structure of the courts system and the procedural details of each court: there was to be a Supreme Court in Dublin with unlimited jurisdiction over the whole of the Republic; District Courts with jurisdiction over their districts and special circuit sittings; and Parish courts with jurisdiction over their respective parishes. ‘Judiciary’ remained the principle governing document of the Dáil Courts until their cessation. It is interesting to note that, when first set up, these arbitration courts were just that – ‘arbitration courts’ – and continued to operate, at least theoretically, on the basis that they were submission-based voluntary arbitration. Soon, through their increased popularity, intimidation, a sense of national pride, as well as the manipulated decline of the ‘official’ British Courts, these ‘arbitration courts’ gradually expanded their reach, especially in counties Galway, Mayo and Clare. These courts ceased being, even theoretically, voluntary when on 29 June 1920 the Minister of Home Affairs moved; “(1) That Courts of Justice and Equity be established. (2) That the Ministry be empowered, when they deem fit, to establish courts having criminal jurisdiction.”[vi] It was now that the courts took shape as what we would now refer to as the ‘Dáil Courts’, the official courts system of the subversive government of the IrishRepublic. The Envisioned Courts Structure: Many details on day-to-day standard procedures, as well as the exact manner of appointments to the courts, were very vaguely outlined, or entirely omitted, by ‘Judiciary’, and often never fully resolved. Although, it is important to recognise that certain areas were covered quite adequately, chiefly among these being the actual organisation and the jurisdiction of each of the courts: The Parish Courts; were set up on the basis of one for each Catholic Parish area, the court consisting of three members, one of whom could be a clergyman. The three elected their own chairman, who need not be legally qualified. The Parish Court could hear cases involving claims of not more than £10, and had jurisdiction over many of the areas previously under the British Petty Sessions Courts. “They had no jurisdiction to deal with any case involving title to land or any trade dispute”.[vii] Appeals could be made to the District Court, which, if allowed, generally took the shape of a complete retrial. The District Courts; existed for each parliamentary constituency entitled to one representative in Dáil Éireann and consisted of five members, two of whom could be clergymen. The Court could sit as a three judge court, and, unless otherwise directed by the Minister for Home Affairs, generally sat once a month. Ordinarily it had jurisdiction to deal with cases involving: claims exceeding £10 but not exceeding £100, a question to title to lands not exceeding £30 in valuation, cases involving Trade Union rights and applications for workmen’s compensation. At a circuit sitting the District Court had unlimited original jurisdiction and could hear cases stated for the attention of a Circuit Judge on a point of law as well as appeals as set out in the relevant section in ‘Judiciary’, which is too long to effectively synopsise. The Supreme Court; was the highest court in the Republic and the final court of appeal. It consisted of not less than three members, all of whom were intended to be legally qualified of twelve year’s standing. The Supreme Court could decide that any case of particular importance should be heard before a full court consisting of no less than two Supreme Court Judges and two Circuit Judges. Normally decisions were based on the majority decision of the court, but in cases of equality of opinions the president of the Supreme Court held the final decision. This is of course only a brief outline of a very detailed and complicated section of ‘Judiciary’, but enough to understand the general structure of the courts which were planned to permanently replace the British courts. While it is easy to see, and sometimes directly stated, that much of the structure of these courts was borrowed from the previously established British courts, there is a distinct feeling that these courts were to be a personalised, Irish and independently established legal structure. Possibly the most interesting, if not that significant legally, is the mention that parties could refer to native Irish and ancient legal codes as persuasive, but not binding, arguments; specifically: Early Irish Law Codes, the Code Napoléon, the Corpus Juris Civilis and works embodying commentary on Roman or Brehon Law. The Running of an ‘illegal’ Courts System: From the outset it is obvious that there are going to be significant difficulties encountered by courts operating on an ‘underground’ basis that regular courts would not have to deal with, however the Republican Courts of this period were remarkably successful. The cornerstone of their success was their ‘grass roots’ organisational capacity at Parish level. Court sittings were successful only because of the huge amounts of work put in by the local people and were held in a myriad of places, in the country; creameries, farmhouses, outhouses, barns; and in the towns and cities; county council offices, workhouses, hospitals, schools and Sinn Féin clubhouses.[viii] Despite difficulties, the courts were undeniably popular and in June 1920 papers listed cases showing that Volunteers had been successful in holding investigations and courts in 21 counties that year.[ix] British County Courts and Petty Sessions Courts were also often prevented from sitting, warnings from the Volunteers/IRA stopped citizens from performing jury duty in British Courts, and the authority of the established British legal system was undermined by acceptance of judgments of the Republican Courts. In the early days vigilante Volunteers began to act as a local Parish police-force, and were evident at local markets, fairs and race meetings. Eventually these volunteers became the ‘Republican Police’ and took on the duty of investigating complaints made by citizens; these investigations evolved into holding courts, and the Republican Police (RP) acted to protect these court sittings, execute court orders, and often sat as District Court registrars. Of course there was another constabulary in force at the time, the Royal Irish Constabulary (RIC), who didn’t take kindly to these courts, even when they could still profess to being voluntary arbitration and therefore entirely legal. Court sittings were frequently broken up by the RIC, documents seized, and often arrests made. In fact, the famous Lord Mayor of Cork, Terence McSwiney, who died after 74 days on hunger strike, was arrested whilst presiding at the Cork City District Court.[x] The number of arrests, and the severity of the punishments for those found to be connected with these courts, reflects the attitudes at Dublin Castle, who at the time were warning the British Government that these courts were a much greater danger to their authority than the outright armed resistance.[xi] Henry Hanna KC, a judge of the High Court of the Irish Free State explained some reasons why the Dáil Courts were so popular for their brief existence; Apart from the policy of undermining British rule in Ireland, there was a necessity for such throughout the country. Though the superior and County Courts under the British regime were still functioning, the Petty Sessions Courts, which depended on the co-operation of the Royal Irish Constabulary, the magistracy, and the British executive, had collapsed. The Royal Irish Constabulary had been compelled to withdraw from the outlying districts and stations to the larger towns, and had become an armed garrison rather than a civil police force. Many magistrates had resigned their Commissions of the Peace or had been removed from the same. Hence there was real work for these inferior Courts to do. The rival [Dáil] Courts were of a rough-and-ready character, and under much difficulty they decided the disputes of ordinary life more on the lines of common sense and neighbourliness than by strict law. The Dáil Courts also encountered difficulties of a more subtle nature, which arose when trying to establish the courts according to ‘Judiciary’ and appoint legally qualified persons as members of the upper courts. Provisions in ‘Judiciary’ had been made for no less than three Supreme Courts judges and four judges who were to preside over circuit sittings of the District Courts. All seven of these ‘upper court’ judges were to be ‘professional judges’, meaning they were to be professionally legally qualified. Unsurprisingly, this was not feasible due to the attitudes towards these ‘illegal’ courts within the established legal circles of the British system. In 1920, the Bar Council decided that it was “professional misconduct on the part of any member of the Bar to appear before such a tribunal”, and accordingly for barristers to appear before such courts was a great risk to their careers.[xii] Although the Incorporated Law Society did not put a ban as such on solicitors representing clients in these courts, they strongly warned their members against doing so.[xiii] For these reasons there were only ever two Circuit Judges, Cahirr Davitt and Diarmuid Crowley, and two Supreme Court Judges, James Creed Meredith and Arthur B. Clery. Connor A. Maguire, who acted as Commissioner in the Land Commission, occasionally sat as a member of the Supreme Court when requested by the president to do so, and acted as a Circuit Judge a number of times. These judges sat regularly in Dublin; however by October 1920 it became evident that backlog of cases in the South and West of Ireland could only be dealt with effectively by circuit sittings. Crowley had initial success sitting in North Longford, but shortly afterwards whilst sitting in Ballina in Co. Mayo he was arrested by Crown forces in possession of papers linking him to his earlier sitting in North Longford.[xiv] He was sentenced to imprisonment for 18 months, and served 13 months of his sentence before being released after the signing of the Truce.[xv] Davitt was considerably more successful, holing courts in Clare, Limerick and Cork, and never once having a sitting raided by the RIC. The Decline and Fall of the ‘Dáil Courts’: The ambition for these courts was always to become the established official legal system in an independent Ireland and the early days of the Truce they went from strength to strength. With the cessation of hostilities new cases flooded in to the Dáil Courts, which were now public affairs, as the number of raids dropped back, and the local magistrates of the British Courts prepared to retire. A number of temporary judges were appointed and new circuits were organised, and due to their perseverance throughout the hostilities, the Dáil Courts made a smooth transition to being the primary courts in the country. The courts remained, in comparison to the police and the army, relatively unhindered by the huge build up of tension preceding the outbreak of the civil war, however on 28 June, hostilities broke out and their downfall came swiftly and unexpectedly. The catalyst was the controversial granting of a habeas corpus action against the State on behalf of an anti-Treaty military prisoner in Mountjoy by Circuit Judge Crowley. On 25 July 1922, Crowley received a letter informing of the suspension of the upper courts, and was accused of contempt of court.[xvi] In October 1922, the order establishing the Dáil Courts, including the Parish and District Courts, was rescinded, and remains to be the only ever decree of the First Dáil to ever be rescinded.[xvii] What followed this panic-driven decision was “The Dáil Courts Winding Up Commission”, a desperate attempt by the Free State to consolidate the awful mess that was a war-torn Ireland with no functioning courts system. Long overdue, the Courts of Justice Act, 1924, established an official Free State Courts system, and the following year the matter was laid to rest with the passing of the Dáil Courts Pensions Act, 1925.[xviii] And so, in a rush to avoid difficult habeas corpus actions and for fear of anti-Treaty IRA sympathies within the courts, the Revolutionary Republican Courts of Dáil Éireann were buried and forgotten, by the very people who founded them. ~ Shane [i] Cahir Davitt, ‘The civil jurisdiction of the courts of justice of the Irish Republic, 1920-1922’, Irish Jurist (n.s.) iii (1968) 112, at 112. [ii] Heather Laird, Subversive Law in Ireland, 1879-1920: From ‘Unwritten Law’ to the Dáil Courts, (Dublin: Four Courts Press, 2005). [iii] Decree No. 8, Session 4, 1919; Dáil Éireann, Minutes of Proceedings, 1919-1921, at 122. [iv] Supra fn [i], at 121-122. [v] Hereafter referred to as ‘Judiciary’. [vi] Padraic Colum, Arthur Griffith, (Browne and Nolan, 1959), at 219. [vii] Supra fn [i], at 113. [viii] Ibid, at 124. [ix] Freemason’s Journal, 4 June, 1920. [x] Mary Kotsonouris, The Winding up of the Dáil Courts, 1922-1925; An obvious duty (Four Courts Press, 2004), at 9-10. [xi] Ibid [xii] See Irish Law Times and Solicitors’ Journal, liv. (1920), 152 and 273. [xiii] Law Society Gazette, vol. xiv no. 5 (November 1920) [xiv] Evening Herald and Evening Telegraph, 12 November, 1920. [xv] Freeman’s Journal, 20 January, 1920. [xvi] Dorothy McArdle, “IrishRepublic”, (1937), at 769.
Posted on: Tue, 18 Nov 2014 21:14:04 +0000
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