‘AN ILLEGAL GOVERNMENT HAS BECOME THE DE FACTO GOVERNMENT’
Bit by bit, a truly revolutionary change was taking place: the popular takeover of the justice system. ‘People’s courts’ were part of the folk-memory of the Land War, and the memory of rural ‘midnight courts’ stretched further back still. Not all the memories were good ones, but there was a real basis for the emergence of an alternative law. As early as December 1917, republicans like Eamon O’Dwyer were urging people to ignore the official courts, and promising that arbitration courts would be set up. When the Dáil finally announced a scheme of national arbitration courts at the beginning of August 1919 it was if anything a belated response to the resurgence of agrarian agitation. The potential significance of this project was unmistakable, but its implementation at national level was plagued by delays. The National Arbitration Courts Committee twice failed to meet, once when its planned meeting place was raided by troops, the second time when no one but the chairman turned up. No publicity was given to the scheme, since no details had been fixed, so hardly any cases came on – in fact only two by October.27 In west Clare, though, the local TD, Brian O’Higgins, pushed the idea on by calling a conference which set up a district arbitration court. ‘A constitution was drawn up with the aid of local lawyers, together with rules of court; judge-arbitrators and registrars were appointed, and a scale of court fees, costs and fines was settled.’28
Mayo and Galway followed suit, but ‘the great bulk of constituencies preferred to await the national scheme of Courts.’ When it finally met at the end of September, the national committee warned that ‘the election of justices in a very large number of districts was impossible owing to the ban on public meetings,’ and in any case elections would take ‘a considerable time’. In the meantime, ‘there were unauthorised courts being set up every other day in a haphazard and slipshod manner, with grave possibilities of irregularity.’ Litigants were using the ‘English courts’ because of the delay in setting up ‘the machinery so long promised’. It was important that ‘some system which could be temporarily set up which would give a sense of confidence in its impartiality and efficiency’ should be ‘put in motion without delay’. The key point was that ‘once the people were brought into touch with such actual courts well and justly managed, a feeling of respect for the Decrees of the Republic and a sense of individual trusteeship for its welfare would be engendered in the people.’29
The Dáil received a sensible assessment of the existing ‘English courts’, analysing their technical defects (‘apart from National considerations’). The county courts, for instance, were ‘not unpopular’, though they were ‘unscientific’. The system of double hearing was unique to Ireland. Appeals from magistrates’ courts were perpetually rushed, and often ‘dealt with in a wholly unscrupulous way by partisan judges contemptuous of peasants and free from fear of appeal’. The system was ‘cheap and popular’ in spite of all this, and ‘often does rough justice outside the law’. Since it developed in eighteenth-century Ireland it was ‘to that extent a native product’. (National considerations resurfaced here.) The high court was different – uncorrupt but expensive; its costs were out of proportion to the amounts in dispute, and its ‘paraphernalia copied from England’ was ‘larger than our country requires’.30
The logic of creating a national court system was persuasive; but the cost was daunting. The Dáil ministry did not approve the idea until 7 November, and subject to an estimate of its costs. In the meantime, courts were being set up on a local basis, with prominent people (often priests) acting as judges. In March 1920 the annual cost was worked out at £113,000, with rotary courts costing £26,000 a year. Austin Stack, the new Minister for Home Affairs, recommended a less expensive ‘small scale experiment’, costing only £11,300 – seven justices on £750 a year, four registrars on £300, with thirty-seven county clerks on a nominal £50 honorarium (plus expenses).31 Not until May did Stack come up with a national arbitration court scheme, issuing a circular instruction authorizing the election of three arbitrators – to be paid £1 per day – by each parish to adjudicate small claims (less than £10). The new element in this was a right of appeal to a district court of five arbitrators elected by the parish courts, with unlimited jurisdiction.
Stack had not been responsible for the courts policy until late November, when he took over from Arthur Griffith as home affairs minister. (Stack, who had just escaped from gaol, was brought into the Cabinet by the absent de Valera; he was confirmed in the post by the Cabinet on 16 January 1920, though not by the Dáil until 29 June.) Griffith may have handed the fledgling ministry over with a sense of relief. It has been suggested that the slow progress up to that point was ‘due more to apathy on the part of the Irish people than to a lack of urgency on his part’.32 But it seems that Griffith, who famously disliked speechmaking, was not much happier with the routine of ministerial office. Stack, though a little more conscientious, was also an erratic administrator. (A year later, after the Truce, Michael Collins would blame the stalling of the courts policy on the fact that ‘the machinery was not held together’; ‘not enough work’ was done ‘locally or at headquarters’.)
By June 1920 the police in many areas reported that ‘Sinn Féin Courts’ had ‘practically put an end to Quarter Sessions and Petty Sessions’. But it is clear that some of these were Volunteer ‘courts martial’, sometimes used in cases where no republican judiciary had been set up. Many were run by local factions. The pressure of land cases was threatening to overwhelm the system such as it was. The disappearance of the RIC opened up many rural areas to the revival of longstanding disputes, and in spring 1920 the auctions of eleven-month lettings proved acutely frustrating to the tenants. The anti-‘ranch’ impulse exploded into life again, with disturbing political volatility. One group marching to seize grazing land under the tricolour, when they were told that Sinn Féin was opposed to land seizures, simply tore the orange and white strips off the flag and marched on as Hibernians.33 Art O’Connor, who succeeded Robert Barton as minister for agriculture in April, said that the land trouble that broke out in Kerry in early 1920 and ‘raged with such vehemence … showed all the symptoms of finally taking the form of a civil war of a kind which would undoubtedly have spread to the calmer parts of the country, and probably involve the Government itself in general ruin’. When British law enforcement was withdrawn, ‘the Dáil itself seemed overwhelmed by the suddenness with which responsibility of Government had been thrust upon it.’ O’Connor suggested that the Dáil ministry ‘seemed to shrink from its duty’ (‘as one shrinks from the fulfilment of an unexpected joy’, he added), and that during the winter of 1919–20 government ‘seemed to stand stock still’. (Kevin O’Shiel later suggested that ‘the Dáil Government was as surprised and shocked at its staggering success as was Hitler at Dunkirk.’) The people of the west, ‘intoxicated with the wine which they drank to the dregs … confused license with liberty’.34
O’Connor had a reason for painting such an apocalyptic picture: it was he who fronted the recovery to order from ‘the mad onrush of the revolution’. The emergency forced the ministry to take direct action. Appointed as the Dáil’s special judicial commissioner (rather like one of the representants en mission of the French revolutionary Republic), O’Connor arrived at Ballinrobe, Co. Mayo, on 13 May, and set up a provisional arbitration court for the constituency ‘to operate until the Dáil had definitely decided on a national scheme’. The lawyer Kevin O’Shiel helped to draft the procedural rules. The first case heard by the first court sitting directly under Dáil authority, at Ballinrobe on 17 May, could – O’Connor claimed – ‘be properly described as the cornerstone of our Judiciary’. It adjudicated a dispute in which two landowners – of 60 acres each – were being intimidated and boycotted by a group of smallholders claiming their land. The court set a significant precedent by finding against the claimants, adding the nakedly political advice that they should turn their attention to a nearby 700-acre farm owned by
the Congested Districts Board, the British government quango. But it immediately faced a direct challenge when the claimants refused to accept the verdict, and demonstrated outside the courthouse ‘waxing eloquent on the futility of the Dáil’s authority’.
With the credibility of the new justice system on the line, the local Volunteer battalion commander was called in to arrest four of the claimants’ leaders. They were held prisoners on an island in Lough Corrib until they agreed to accept the court’s authority. The commandant seems not to have relished this task, but it set a pattern that would underpin the republican courts for the rest of the conflict. A ‘Republican Police’ service, drawn at first from the Volunteers, soon began to be put together on a regular basis. The extent of Volunteer involvement remained hard to pin down, though reports of people being kidnapped and brought before Dáil courts – presumably by the Volunteers – were widespread in the summer of 1920, and the police counted over 100 cases in July alone.35
Just as significantly, arbitration courts (which were perfectly legal in themselves) began to be replaced by courts of original jurisdiction (which were definitely not). The former were consensual, but the latter could, theoretically at least, force defendants and witnesses to attend. Whatever his executive frailties, Stack did at least think big: he saw the arbitration courts as only a first step in the creation of a comprehensive legal system, and reported that at the end of January his department had considered forming courts ‘to whose jurisdiction litigants might be compelled to submit their cases, instead of to an enemy tribunal’. On 21 May he presented proposals for a system of parish and district courts, and on 8 June asked O’Hegarty to ensure that this issue of criminal jurisdiction was discussed at the next Cabinet on the 10th. (The correspondence implies that Stack was not attending Cabinet meetings.) Ministers remained cautious, telling Stack to hold back plans for the ‘dislocation of enemy courts’ until the republican courts were fully operational. Six days later he urged the ministry to empower him to push ahead the process of appointing arbitrators, and the Cabinet finally resolved to authorize the establishment of parish and district courts with criminal jurisdiction in areas the Home Affairs Minister thought suitable, together with a supreme court. This decision was confirmed by the Dáil on 29 June – its first meeting for eight months. In all this, though, the republican government ‘merely endorsed a trend which had already begun’.36
At the same time the Dáil moved to dam up a torrent of spurious or extravagant property claims, often based on assertions that ‘claimants or their ancestors were formerly in occupation of the property.’ Some of these, it suggested, ‘seem to be of a frivolous nature, and [are] put forward in the hope of intimidating the present occupiers’. In April, Sinn Féin announced that ‘anyone who from this forth persists in pressing a dispute will do so in the knowledge that he or she is acting in defiance of the wishes of the people’s elected representatives and [to] the detriment of the National cause’.37 Two months later the Dáil urged that ‘the present critical time’ was ‘ill-chosen for the stirring up of strife amongst our fellow-countrymen’. ‘All our energies must be directed towards the clearing out – not the occupier of this or that piece of land – but the foreign invader of our Country.’ So it decreed that ‘pending the international recognition of the Republic, no claims of [this] kind shall be heard or determined by the Courts of the Republic, unless by written licence of the Minister for Home Affairs.’38
By this time the new court system had become something of a media sensation. Even the hostile Irish Times conceded in June that ‘the King’s writ runs no longer in many parts of the country’; the Sinn Féin ‘tribunals’ were ‘jostling British law into oblivion, as a fast motor-car jostles foot-passengers off the road’. Next month a prominent landowner, Lord Monteagle, told the paper that he had become a convert to the ‘Sinn Féin courts and government’, which had shown ‘extraordinary fairness’ and been ‘extremely just’. Similar messages were transmitted by the British press – the Daily News reporting that ‘Sinn Féin law has a sanction behind it such as no other law in Ireland has had for generations.’ The Manchester Guardian saw the courts as ‘the natural result of the strong common will for national responsibility’. Stephen Gwynn wrote in the Observer in July that though they had been ‘an improvisation to meet a need’, nothing had brought Sinn Féin so much prestige as the courts. ‘Nothing goes so far to give reality to the claim that there is an Irish Republic in being.’ This was confirmed by Lord Dunraven, a prominent unionist, who told The Times (not without, we may suspect, a certain Schadenfreude) that ‘an illegal government has become the de facto government. Its jurisdiction is recognised. It administers justice promptly and equitably and we are in this curious dilemma that the civil administration of the country is carried on under a system the existence of which the de jure government does not and cannot acknowledge, and is carried on very well.’ Foreign journalists went out west in some numbers, and were given access to the ‘underground’ tribunals by the Propaganda Department.39 The Chairman of Mayo County Council could declare at the beginning of August that republican plans had been turned ‘from alleged dreams into practical realities’.40
‘THE RAPID DEVELOPMENT OF THE CIVIL SIDE’
For Arthur Griffith, the resort to coercion was a regrettable development, tainting the utopian image of the arbitration concept. But coercion had really been there from the start. The west Clare parish and district court rules, used as a model for the June 1920 scheme, spoke of mandatory judgments alongside voluntary arbitration, and the use of ‘guards’ to preserve the peace and impose fines for breaches of licensing laws. In January 1920 a Clare litigant who had refused to transfer his case from the ‘enemy’ courts to the Sinn Féin court was boycotted, his house placarded, and shots were fired outside it.41 Coercion was, ultimately, a vital element in the state-building process; the republicans needed to ensure that their proto-state exerted a monopoly of it. An tOglaċ, announcing in May that the Volunteers had been ‘entrusted with the duty of enforcing the decrees of the courts established by Dáil Éireann’, made the point that ‘as long as the state of war continues, the Army of the Irish Republic must remain the chief executive instrument of the Irish Republic.’42
Many Volunteers were not much happier than Griffith about enforcing the justice system: Cathal Brugha himself ‘had no use whatever for Courts of any description’. When asked to authorize Volunteer assistance during the Ballinrobe stand-off, he told O’Shiel that courts and police were irrelevant to the military effort, and would have to wait until the war was won. ‘His simple credo was that the nation was engaged in a deadly war with England, and accordingly that every fibre of energy, every atom of strength, every pound collected should be concentrated exclusively and solely on that war.’43 Local commanders often agreed, seeing the additional duty as a tiresome distraction and a burden. Fortunately for the Republic, others embraced the new dimension with enthusiasm. Patrick Hargaden in south Leitrim thought that, though police duty ‘threw a lot of work on the shoulders of the officers and Volunteers but it was a novelty for them and they entered into [it] with great spirit’. ‘Their reward … was that the confidence of the people in them flourished and they came with their troubles to the Volunteers.’44 Areas where the Volunteers had few weapons discovered a new sense of purpose – for one battalion in the Fingal Brigade, which had ‘no arms of any kind’ when it was formed, and would still be without any ‘proper arms’ by the time of the Truce, policing ‘gave them work to do and was a decided change from the monotony of parading and drilling and helped to build an esprit de corps’.45 The moralistic – a powerful element in the movement – found themselves at last empowered to reorder some outstanding social defects, the demon drink above all. Many Volunteer units conducted regular raids on the poteen makers who multiplied as the RIC abandoned its normal policing activities, fining the distillers and destroying stills or seizing the equipment for display outside churches. They enforced licensing hours,
forbade publicans to serve ‘the tramp class’ and fined them for tolerating drunks on their premises.46 There must have been a number who, like Commandant P. J. O’Daly in Monaghan, ‘loved to preside at midnight courts, to take witnesses out of bed at all hours and to use Volunteers to do it. He loved the sense of power it gave him.’47
Like so many revolutionary developments, republican policing emerged out of local initiatives. A Dublin Volunteer unit, for instance, arrested four thieves, tried them and sentenced them to whipping, as early as May 1919. The Dáil referred to ‘Republican police’ acting in the Millstreet bank-robbery case in November. But it took rather longer to set up a national system, thanks to Brugha’s ‘resolute opposition’ to the creation of a police force recruited from Volunteer ranks – the only possible source at that point. In January 1920 GHQ warned ‘that a definite effort may very soon have to be made by Volunteers towards the protection of the general public against the raids and robberies that have become so prevalent recently in many districts’. But exactly how they were to go about this was left uncertain. The Volunteers had neither the resources nor the training to step straight into the gap left by the British system. ‘The Volunteer organisation is not in a position to take up the policing of the country,’ as GHQ made clear in May 1920. Where ‘courts martial’ were used, the procedures were – approximately – based on the British system. But, as GHQ acknowledged, the issue of enforcing penalties was ‘very difficult’. There was ‘only one punishment which we can with convenience to ourselves mete out to such people’ – that is, death – but ‘unless it can be shown clearly that such persons are a danger to society in your area, you may not carry out the extreme penalty.’ The only realistic alternative was deportation. Imprisonment was seen as impracticable at this stage, though it would be used on an increasing scale later. The ‘important thing’ in most robbery cases was that ‘the goods are recovered and restored.’48
The Republic- The Fight for Irish Independence Page 18