Retreat from Revolution

The Dáil Courts, 1920–26

Mary Kotsonouris

• Editorial: Irish Academic Press
• Año: 2020
• ISBN:
  9781788551274
• Edición: 1
• Categoría: History
• Categoría: Irish History

June 2020 sees the 100th anniversary of the republican courts established by a Dáil decree.

New edition of the seminal history of the Dáil Courts by retired District Court Judge and leading legal historian.

1

The People’s Courts

When Arthur Griffith addressed a convention in the Mansion House on 6 December 1905,1 the programme that he outlined was part of an unstructured imagining of an ideal he had been pursuing through writing, talking and debate for over twenty years. His audience had come together under the umbrella of the National Council, whose original purpose was the uncomplicated one of opposing addresses of loyalty to the monarch. Among other sympathisers was the Sinn Féin League which fitted in comfortably with one of Griffith’s teeming ideas, that of making Ireland self-sufficient in industry and agriculture. The various interests represented at the meeting recall Roy Foster’s description of ‘a radical avant-garde of cultural nationalism’;2 everyone was a separatist of one kind or another, although there were as many versions of that as there were schisms. None of these groups, however, was a political party; nor, at that time, aspired to be. Griffith was using his meetings and publications as a forcing house for ideas on independence, sovereignty and abstention and as a distancing from English culture, fashion and character.3 Therefore, the proposal to establish national arbitration courts must be regarded, not as a policy, but as part of the vision of a new Ireland that was in a state of constant flux. There were many influences being brought to bear upon the core idea of repeal of the Union and a ferment of theories about nationhood, political economy, republicanism or dual monarchy. There is no evidence to suggest that any particular thought was given to what national arbitration courts would entail – whether they could be extended beyond the conciliation of civil disputes, as the term suggests, or if that limitation was intended merely to coincide with the adjunct scheme of commercial enterprise and self-sufficiency.

When one looks at the 1905 Convention and the agenda so airily sketched out, it can hardly be called a benchmark for the courts that evolved fifteen years later. Even as late as 1912 Sinn Féin was still a fragile alliance of disparate and heady disputants, but at least they had got down to writing a constitution, where the item about the courts clearly stated that their task would be ‘the speedy and satisfactory adjustment of disputes’.4 This was a worthy, if somewhat woolly, idea of formal arbitration, but certainly not a realistic concept of a proper civic court. One wonders at the optimism of ‘satisfactory’: it could hardly be that for the losing party.

When all had changed utterly after 1916 and Sinn Féin became the wide umbrella that sheltered so many unlikely comrades, it had also become a political party in the metamorphosis.5 It fielded candidates for election and put together a constitutional programme that used the material to hand – ballot boxes and the locally elected councils – as a blueprint of a civil administration. It succeeded in setting up Arthur Griffith’s great dream in January 1919 – a constituent assembly composed of elected MPs who had withdrawn from Westminster and sat as the parliament of Ireland, now called Dáil Éireann.6 Ministers were appointed and Arthur Griffith was given the Home Affairs portfolio. It was very exciting and the response in the rise of nationalist sentiment is discernible in all quarters – municipal, ecclesiastical and sporting. To read a paper like the Limerick Leader right through 1919 and 1920 is to trace a prideful consciousness of national identity, supported by church and civic leaders, gradually becoming overwhelmed by coat-trailing and staged encounters between the police or military and young men anxious to test their mettle. Life became increasingly dangerous and descended swiftly into acts of brutality as 1919 drew to an end. The Defence of the Realm Act, usually referred to as DORA, was invoked to proclaim various districts under martial law, which caused resentment in the community because fairs and markets were disrupted. Public figures condemned the random shooting of local policemen, but were silent on the marching, drilling and possession of revolvers, for which increasing numbers of young men were imprisoned: in fact, the newspaper headings showed their disapproval with words like ‘harsh’ and ‘drastic’ to describe a twelve-month sentence.7 On whom did the elders think the guns were going to be used except on policemen and soldiers?

It is difficult to understand in the light of the strong current rushing towards self-determination apparent in newspapers over these months that any person, other than the most bone-headed militarist, could have believed that this momentum could be turned around. However, the response to youths jeering at soldiers from a street corner in Limerick was to take up firing positions and kill a publican shutting up his shop and a cinema usherette returning home from work.8 From the autumn of 1919 onwards the toll of these incidents is unremitting, and yet the paradox of the few arrests for what was, even then, being called ‘ordinary crime’ was frequently commented upon. Military tribunals and Crimes Courts constituted under the Defence of the Realm Act and Restoration of Order in Ireland Act 1920 dealt with the political violence,9 while at the Assizes and Quarter Sessions the traditional white gloves piled up and the Petty Sessions sat for only minutes, such was the shortage of business. Lord Justice O’Connor, commenting on the absence of indictable cases at Limerick Assizes in the face of rising lawlessness, said ‘whatever these gloves may fit, they do not fit the condition of the city’.10

In the midst of the ferment, it was to be expected that agrarian vandalism, reminiscent of the Whiteboys, would surface, as it had over and over again in the past hundred years. Where the leaders thrown up by the Sinn Féin movement had the moral authority, they were able to exercise it to impose a negotiated settlement and this was generally perceived as being fair to the landlord. While no doubt preferable to having his animals turned out to starve or his family and himself assaulted, it was, at the end of the day, a forced sale in many instances. It must be borne in mind, however, that a scheme of land acquisition was already in place with the Wyndham Act of 1903,11 so that it could be argued – and was – that these arbitrations were being substituted for the inefficiency of the Congested Districts Board which had failed to release enough land to satisfy the demand. There can be no doubt that many claimants would have felt justified in taking possession without any recompense. Had they not been told by successive national leaders that they had been robbed of the land in the first place? The long-nurtured grievance and the long-expected deliverance spawned such a conditioned response that the arbitrators had difficulty in making one set of claimants understand that they were now, in fact, landowners themselves and could not claim as tenants. It was ironical that the particular claim was being made against Edward Martyn, the first President of Sinn Féin.12

Many areas in Munster, particularly in County Clare, were proclaimed under martial law because of cattle driving and general defiance of the law during 1919. In response to the same problem, ad hoc courts were first put in place. The leaders had every reason to fear that the old spectre of agrarian terrorism would rise again by using name of Sinn Féin as a convenient flag for any bully boy to terrify a farmer or torment his neighbour, if he had a mind to. It was set to undermine the increasing confidence in a nationalist programme, so ways of conciliation were sought to mediate the genuine grievances of landless men by setting up tribunals to adjudicate and fix a price in compensation and to decide who would be permitted to purchase the land. Moreover, here and there, groups of Volunteers began to act as village constables, restraining rowdyism and investigating larcenies. They also meted out the punishment, ordering that, in addition to returning property or making good the damage, the offender would be fined or banished to another county, or even marooned on an island for a period. There were other forms of punishment, less complicated and more immediate in their effect, which were described in press reports as ‘drastic’ or ‘due punishment meted out’ before the miscreant was released. It was an innovation that pleased the soi-disant law-abiding of the community – and was increasingly accepted by those who were on the receiving end of this rough justice. Two men who had disobeyed an order of a Sinn Féin tribunal to rebuild a wall they had demolished were left on an island off the Clare coast for three weeks. A party of the Royal Irish Constabulary who arrived by boat to rescue them were pelted with stones and abused. The castaways proudly declared that they were citizens of the Irish Republic and the police had no right to interfere.13

Newspapers such as the Limerick Leader, the Tipperary People and the New Ross Journal carried regular reports of Volunteers investigating and adjudicating in respect of assault, robbery and licensing offences during the first half of 1920. Under an eye-catching headline, ‘Sinn Féin Justice’, the Freeman’s Journal gave a summary of the work of the Volunteer patrols in 21 counties over a six-week period. It was a strange mixture – dispelling a riotous assembly, imposing the licensing laws, swift retribution for property damage and larceny, protecting women from abusive language, as well as solving bank and post-office robberies. The paper admitted that the information had been supplied to it, and the attempt by the Sinn Féin publicists to harness the success of the Volunteers to its wagon was reflected elsewhere, particularly in the Westminster House of Commons, whose members saw most of the benighted Irish, including several southern unionists, besotted by Sinn Féin and its siren call to non-conformity. But even if propaganda, the details of dates and places given in the Freeman’s report were impressive.14 Of more dramatic impact was the story in another paper on the same day of a ‘Sinn Féin Court’ held at midnight in a Tipperary bog. It was, in fact, a court-martial, although the defendant was not a soldier: a Volunteer officer was assigned to defend John Ryan, charged with stealing mail bags and bicycles and beating his father, who had made the complaint. While the Volunteers had searched for him, they in return were being hunted by a 200-man force of police and military in the eastern part of the county. When Ryan was captured at three in the morning, he was supplied with a candle so that he could verify the warrant for his arrest. During the week he was detained, he was given good food and work spreading farm manure; he still managed to escape and hide in a farm-cart. When he was discovered, he called out in panic, ‘For God’s sake, don’t shoot!’ Among the items recovered were cheques and title deeds belonging to a local lawyer. The culprit was banished from the province of Munster for two years.15

The sentence imposed frequently took the form of banishment from the parish, locality or county for varying periods. As punishment, it had the advantage of being severe, inexpensive and primitive. There can be no doubting the deprivation it must have caused to young men without experience or resources, too terrified to disobey the order or to risk being betrayed by neighbours if they did. In more severe punishments, the guilty person was, like Columba, banished from Ireland, which caused a protest in the House of Commons on the numbers of undesirable people being deported to England and on the ‘use of England as a sort of convict settlement for men deported by Sinn Féin’. It was felt that the Irish Attorney General did not intervene because it suited him to have such unsavoury persons out of his jurisdiction.16

The defiance of established law and order and the increasing reliance on an alternative discipline did not operate in isolation. There was a steady attrition of justices of the peace resigning their commissions. The reins of local government were largely in the hands of Sinn Féin supporters, and Poor Law Guardians increasingly looked to Dáil Éireann for direction.17 While confrontation between the military and the public resulted often in the deaths of uninvolved citizens, the toll of local policemen shot in churches, in the streets or visiting their families mounted with sickening regularity. The local administration of justice was uninvolved with this frightening phenomenon: political crimes occupied the attention of courts martial or Crimes Courts: the scope of the normal courts had been radically curtailed. Sinn Féin tribunals or the vigilante-type Volunteers concerned themselves only with preserving the peace as traditionally understood and settling civil disputes; there was no attempt to claim jurisdiction over the activities of the Irish Republican Army. For much the same reason, white gloves continued to be handed to judges with a great deal of civic pride at official court commencements. A dangerous air of unreality is discernible among those not in the front-line – wherever that was located in the Ireland of 1920. There was a guerrilla war going on, unfocused in its targets, and the control of civil administration had been coolly alienated from central authority, yet it did not appear to impinge on the British government, which alone had the power to change the established order. Leaders of opinion at every level in England were pointing out, as Chesterton did, that ‘Ireland was lost to England’. The Dáily Mail said: ‘An Irish Republic is very nearly in being’ and censured the raids on the courts as childish. Lord Dunraven, an Irish unionist, wrote to The Times:

An illegal Government has become the de facto Government. Its jurisdiction is recognised. It administers justice promptly and equably 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. The logical deduction is that profound dissatisfaction with the origin of the law, not with law and order, is the cause of the trouble.18

It was an accurate summary of a development that had deprived the British cabinet of taking refuge in the irradicable tendency of the Irish towards lawlessness, but it was a surprising analysis for a unionist, since the ‘logical deduction’ was that the law should originate in a changed structure. There must have been some to whom it was clear that, whether armed resistance intensified or not, real power had already shifted to men who would not easily relinquish it. Indeed, in July 1920 Alfred Cope, who was Assistant Under-Secretary in Dublin Castle, warned a cabinet conference in London that the Sinn Féin Courts were doing more harm to the prestige of the government than the assassinations.19

More importantly, did Dáil Éireann wonder if power was passing too rapidly to the people? It had failed to exercise any direct control over what had happened so far in these courts, which were spontaneous and localised. Individuals were re...