Improvised justice
When introducing legislation in 1923 to wind up the parallel courts' system established during the War of Independence, Minister Kevin O’Higgins characterised them as “an improvised system of justice”. The true story, however, is one of complexity and resilience, write Barry Whelan and John Biggins
After the Great War, land agitation – especially in the in the west of Ireland – saw many litigants turn to ad hoc ‘Republican’ or ‘Sinn Féin’ arbitration courts for fair justice, advocated by Arthur Griffith since 1905. This was in similar spirit to courts established by the Land League in the late 19th century.
The outbreak of the War of Independence and the spread of agrarian unrest accelerated the movement of litigants away from the official ‘Crown’ Courts (petty sessions, county courts) towards arbitration courts. Better organised arbitration schemes emerged in particular areas, such as West Clare.
They lifted the war to a higher plane – the independence movement stood not only for democracy, but also for the rule of law and equitable justice.
The money raised by donations and loans by the then underground government, Dáil Éireann, ensured parties could find an alternative and fair court system for restitution.
Regularised system
A Dáil decree in June 1920 moved the dial from arbitration courts to a more regularised courts system. Court rules were developed through the autumn of 1920.
By January 1921, a provisional constitution, including rules of court, had been issued by the Dáil Department of Home Affairs, though it may not have been in full circulation until after the 1921 Truce in hostilities in the War of Independence.
The system was divided between Parish and District Courts, with mostly lay people adjudicating in both, and legally qualified judges presiding over Circuit sittings of the latter. A Supreme Court, comprised solely of legally qualified judges, was also established.
In the District Courts, protection was provided by Republican police. These experienced IRA units were the only attendees who were permitted to wear caps in court, as a symbol of their office.
It became practice for judges of the Parish Courts to be appointed at conventions of Sinn Féin clubs, trades councils, members of the rural or urban authority, IRA Volunteers and Cumann na mBan.
The collective parish judges then elected the district judges. Women, such as Jennie Wyse Power, adjudicated at these courts, showing a progressive element to this judicial system.
There were no robes, wigs, raised platforms or symbolism in the courts – its plainness spoke of a justice system that could reach all and dispense rulings quickly.
Court sittings took place anywhere – in a school, pub, solicitor’s office or a barn. Urban sittings were usually riskier, as an enemy convoy could roll up and storm the premises before the court had time to hide any documentation or evade arrest.
Rural sittings allowed the IRA to establish look-out posts and cordons but, with much of the country under martial law during the war, the sittings of these courts and travelling to them were still highly dangerous for all involved.
In tandem with this, the IRA actively targeted the Crown Courts by destroying premises, threatening litigants, and forcing the British Army to deploy significant resources to guard their courts.
The net impact of this was the near-total collapse of the established court system and the movement of business to the Dáil courts: “The fact that Sinn Féin set its face against the use of violence for the settlement of disputes and that the courts gave a fair hearing to everybody quickly won respect for the courts, even from those who looked upon them as usurping the functions of the English court.”
Solicitors’ vital role
Solicitors played a vital role in the Dáil Courts process because they represented clients, briefed barristers, prepared legal cases, and handled monies.
The Law Society of Ireland supported their active participation in the Dáil Courts: “Where the interests of their clients require it, solicitors should be free to represent them in any court or before any tribunal."
Hugh O’Brien Moran, Seán Ó hUadhaigh, William Corrigan, and Michael Noyk were some of the most prominent solicitors who practised in the Dáil Courts and risked arrest at every sitting from raids by enemy forces: “The court had hardly been in progress ten minutes when in came a number of British officers and Auxiliaries.”
Noyk himself achieved a great coup against the established court system by holding a Dáil Court sitting under the noses of the Crown Courts at the Four Courts building. He rented a consultation room for the hearing of one of his cases before Judge Cahir Davitt.
Once solicitors attended Dáil Courts, they were aware that their card was marked in the eyes of Dublin Castle and the British authorities as being sympathetic to the Republican movement.
However, again, the Law Society would defend their members against such charges by citing the privilege of the profession to act in their clients’ interests, and they presented this argument in person to General Nevil Macready – commander of the British forces in Ireland.
In contrast, the Bar Council had passed a controversial resolution in June 1920 declaring it professional misconduct for barristers to appear before Sinn Féin courts. Nonetheless, barristers appeared before the Dáil Courts and the subsequent winding-up commission, including John A Costello and Michael Comyn.
Transition year
The approval of the Anglo-Irish Treaty in Dáil Éireann on 7 January 1922 ushered in a period of administrative transition. The Treaty did not explicitly address the future status of the Dáil Courts, but it was no secret that British political opinion was hostile.
David Lloyd George – British prime minister and solicitor by profession – reportedly commented to his team during the Treaty negotiations that: “I shall have to tell them [the Irish delegation] that we shall have to scatter these courts.”
Even so, the Dáil Courts were in their heyday after the Treaty. By April 1922, regularised criminal trials before judge and jury were also being held in some Dáil Courts.
They were on borrowed time, however. Following publication of the draft Constitution of Saorstát Éireann and the outbreak of the Civil War in June 1922, the Dáil Courts came into sharper political focus.
In the wake of Cabinet discussions in July 1922, communications were issued to the Dáil Supreme Court and judges on circuit to cease sittings.
A more direct showdown between the Provisional Government and the Dáil Courts occurred when an order for habeas corpus was made by Judge Diarmuid Crowley, ordering the release of George Plunkett, son of Count Plunkett, from Mountjoy Jail after his capture at the Four Courts.
Orders were also made for the arrest of the Minister for Defence and Governor of Mountjoy.
In a public notice appearing on 1 August, the Minister for Home Affairs rescinded the original decree establishing the Dáil Courts, though initially limiting the effect to Dublin. Parish and District Courts outside Dublin were disestablished in late October 1922.
The status of claims and appeals pending when the Dáil Courts were abolished, as well as definitive registration and enforcement of court orders, went unresolved for some time.
Eventually, the Dáil Éireann Courts (Winding-Up) Act 1923 was enacted on 8 August 1923 (amended by a further act in 1924), establishing a statutory commission based at Dublin Castle.
James Creed Meredith, former president of the Dáil Supreme Court, was initially appointed as Chief Judicial Commissioner until his elevation to the High Court of Saorstát Éireann in 1924.
The commissioners were empowered to hear appeals against registered decrees; appeals against the registrar’s decisions to register (or refusals to register) decrees; outstanding proceedings and appeals pending before the Dáil Courts’ abolition; and to reopen certain other proceedings where defendants had previously abstained from the Dáil Courts on principle.
Under 1925 legislation, the jurisdictions and powers of the commissioners were transferred to the High Court, and so a fusion of the revolutionary legal system with that of the new State was finally rendered complete.
Trove of records
Perhaps one of the greatest legacies of the commission is its trove of records, which survive in the National Archives. The files reveal that a broad cross-section of Irish society came to rely on the Dáil Courts (and, later, the commission).
Legal actions were wide in variety, many of them still familiar today, including debt recovery, breach of contract, negligence, and land disputes.
Some of these materials are revealing of life at the ground level of society during a disturbed period, illustrated by the following examples from the Dublin files.
At a May 1922 circuit sitting in the North City District, two men were charged with armed robbery at Drumcondra Post Office, while a third was charged with threatening to kill the postmistress and the post office messenger, in February of that year.
A witness statement from the postmistress conveyed how an ordinary day took a terrifying turn when she recalled: “On Tuesday morning about 12 noon, while engaged in my duties in Drumcondra Post Office, I saw men rush into the office. I thought there was something wrong and immediately one of the men put a revolver through the brass railing on the counter. I stood for a moment afraid to move or call…”
Another employee recalled one of the men threatening the post office messenger that “if he stirred, he would shoot him dead”.
The perpetrators made admissions in custody and, while the archival record is not entirely clear, they seem to have entered guilty pleas.
Another case concerned a substantial breach of contract claim levelled against a garage on the Conyngham Road. The defendant had allegedly failed to carry out repairs to a Ford Laudette in reasonable time, putting the plaintiff to considerable expense, particularly in hiring ‘taxi-cars’.
It transpired in evidence that a damaged part from the plaintiff’s car had been sent by the defendant motor works to a third party works, but was then allegedly stolen from there by ‘Sinn Féiners’. It was accepted in evidence that ‘armed men’ had taken the part.
The plaintiff car owner was only awarded a fraction of his claim, while a claim of the defendant motor works was partially upheld in relation to the supply of petrol.
There was fluidity in the use of courts during this period, given that the inherited Crown Courts and the Dáil Courts functioned concurrently (albeit uneasily) in some places, particularly Dublin.
On occasion, the two systems were activated at different points in the same chain of events. For instance, a woman was charged with stealing a fur coat from Arnotts in December 1921. She was taken into custody and remanded until January 1922, when she was tried before the Recorder of Dublin and a jury at the Criminal Sessions.
When acquitted of the charge, she then initiated a claim against Arnotts at the North City Dáil District Court for false imprisonment. The plaintiff was successful at first instance, but Arnotts successfully appealed.
Consistent with the terms of their provisional constitution, it was also quite usual for the Dáil Courts and the commissioners to apply pre-existing law – that is, the common law and Westminster legislation.
For example, on 14 June 1922, a complaint was made by a sanitary officer under the Public Health (Ireland) Act 1878 about the bad state of repair and sanitation of certain properties at Kill o’ the Grange.
The orders made against the landlord required him to “provide two water closets for tenement houses … also new drains, gullies, intercepting trap, vent pipes etc, and connection with Rural District Council’s sewer in public road”.
Penalties for breaches of animal-disease regulations were also imposed by the Dáil Courts at a time when the keeping of cattle within the city was still widespread.
In January 1922, a ‘cowkeeper’ with an overcrowded cowshed on Bow Lane, off Aungier Street, was summonsed and cautioned for breaching the Dairies, Cowsheds and Milkshops (Ireland) Order 1908.
These examples perhaps serve to demonstrate that, by the time of their abolition, the Dáil Courts had become much more than an “improvised system of justice”.
Barry Whelan is a historian with DCU. He works in the Law Society and is currently writing a biography of Michael Noyk, solicitor. John Biggins is a practising barrister, lecturer and researcher. He is currently writing up new research on the Dáil Courts. He gratefully acknowledges the support of the Royal Irish Academy in conducting the National Archives of Ireland research referred to in this article. The content of this article is solely the responsibility of the authors and does not necessarily represent the official views of the Royal Irish Academy or any other organisations to which the authors may be affiliated.