Alternative law in Ireland prior to 1921
Alternative legal systems began to be used by
Background
Unwritten law
Before the conquest the Irish people knew nothing of absolute property in land. The land virtually belonged to the entire sept, the chief was little more than the managing member of the association. The feudal idea, which views all rights as emanating from a head landlord, came in with the conquest, was associated with foreign dominion, and has never to this day been recognized by the moral sentiments of the people ... In the moral feelings of the Irish people, the right to hold the land goes, as it did in the beginning, with the right to till it.
John Stuart Mill, as quoted by Michael Davitt at the first meeting of the Land War[10]
The "unwritten law" or "unwritten agrarian code"[11] was a deep-rooted idea among Irish smallholders that access to land for subsistence farming was a human right which superseded property rights and, regardless of titular ownership, the right to use land was hereditary and not based on the ability to pay rent.[12] This concept had parallels in Brehon law, which did not recognize absolute property rights. Even a lord's demesne technically belonged to his entire sept.[13] It was based on the idea that the land of Ireland rightfully belonged to the Irish people, but had been stolen by English invaders who claimed it by the right of conquest. Therefore, Irish tenants viewed the landlord–tenant relationship as inherently illegitimate and sought to abolish it. In the code's early version, practiced by the Whiteboys secret society beginning in the 1760s, it had a reactionary character which looked back to an era when there had supposedly been a reciprocal relationship between landlords and tenants. Later versions were friendly to capitalism, advocating a market economy in land and agricultural products without the "alien" landlord class.[14]
The idea of "unwritten law" was expressed and refined by the Young Ireland activist James Fintan Lalor (1807–1849), who insisted that the Irish people had allodial title to their own land. Lalor believed that a farmer had the first right to his crop for subsistence and seed, and only then could other claims be made on the harvest. Instead of landlords evicting tenants, Lalor preferred that the landlords—"strangers here and strangers everywhere, owning no country and owned by none"—be served with a writ of ejectment.[15] Lalor advised the Irish people to refuse "obedience to usurped authority" and resist English law, instead setting up their own government and "refus[ing] ALL rent to the present usurping proprietors".[16] Lalor's writings were the basis of the agrarian code enforced by the Irish National Land League during the Land War in the 1880s.[17] The tenets of the unwritten law appeared in "speeches, resolutions, placards, boycotts ... threatening letters and acts of outrage".[18]
Secret societies
The Whiteboys were oath-bound secret societies in rural Ireland since the 1760s.
According to American historian Kevin Kenny, the alternative law as understood by the rural poor is the most convincing explanation for the violence practiced by these societies. Rather than a civil war by the Irish against a supposedly alien landlord class, the violence was understood as retributive justice for violations of traditional landholding and land-use practices.[24] The rural poor could be targets if they broke their oaths to the society or otherwise failed to act in solidarity with the unwritten law.[25] Punishments ranged from digging up new pasture land in an effort to free it up for potato cultivation, tearing down fences on newly-enclosed areas, mutilating or killing livestock, to threats and attacks on landlords' agents and merchants judged to charge exorbitant prices. Murders occurred, but were rare.[26][27]
Although these societies did not systematically enforce their version of the law via a court system,[28] a person accused of violating the code could be tried by their local society in absentia.[29] According to Sir Thomas Larcom, "There are in fact two codes of law in force and in antagonism—one the statute law enforced by judges and jurors, in which the people do not yet trust—the other a secret law, enforced by themselves—its agents the Ribbonmen and the bullet."[30]
Repeal Association
In July 1843, Daniel O'Connell announced that his mass-membership Repeal Association (for the repeal of the Acts of Union 1800) would set up a court system as part of its plan to create an Irish government. The courts would be staffed by magistrates who had been dismissed for their pro-Repeal opinions, and supplemented by individuals nominated by Repeal clergy and Repeal Wardens. John Gray, owner of the Freeman's Journal, drew up a detailed plan for a national court system based on existing districts; three or more arbiters would adjudicate cases, based on a majority vote. No court fees would be charged, and those who agreed to attend the court would be dismissed from the Repeal Association if they did not obey a verdict. After arbiters were appointed, the courts began to function by the end of October 1843. Their popularity threatened British rule in Ireland;[31] O'Connell was arrested and charged with three counts of conspiracy in connection with the tribunals.[32]
The Repeal Association crumbled after the Great Famine (1845–1849), and the Ribbon Societies assumed its role as arbiters of land and wage disputes. Other arbitration courts were organized by local priests, who denied sacraments to those who did not observe a verdict. Contemporary Conservative commentators said that the societies were an alternative justice system; their activities were legal, as long as they did not compel attendance.[33]
Irish Republican Brotherhood
After the unsuccessful 1867
Land League
The
When a man takes a farm from which another has been evicted, you must show him on the roadside when you meet him, you must show him in the streets of the town, you must show him at the shop-counter, you must show him in the fair and at the marketplace, and even in the house of worship ... you must show him your detestation of the crime he has committed ... if the population of a county in Ireland carry out this doctrine, that there will be no man ... [who would dare] to transgress your unwritten code of laws.
Charles Stewart Parnell at the Ennis meeting, 19 September 1880[41][42]
One of the League's main tactics was the
In his 1892 book, Ireland under the Land League, Charles Dalton Clifford Lloyd described how the law's enforcement was difficult because many people refused to cooperate with the official justice system. Refusal to rent transportation equipment to the Royal Irish Constabulary (RIC) paralyzed the police in Kilmallock, and people turned to the Land League rather than magistrates to resolve disputes. If a person observed the official law, they were denounced for breaking the unwritten code.[51] Lloyd complained that instead of petitioning the government for a change in the laws, "the Land League established laws of its own making, formed local committees for the government of districts, instituted into own local tribunals, passed its own judgements, executed its own sentences, and generally usurped the functions of the crown".[52] Lloyd and other observers believed that the League was not just a competing government, but the only effective one in many parts of Ireland;[52][53] a modern observer noted that "(t)here were areas of the country which simply could not be controlled by the British government."[54] In 1881, Chief Secretary for Ireland William Edward Forster said that Land League law was ascendant:
... All law rests on the power to punish its infraction. There being no such power in Ireland at the present time, I am forced to acknowledge that to a great extent, the ordinary law of the country is powerless; but the unwritten law is powerful, because punishment is sure to follow its infraction.[55]
Conservative jurist
National League
The
Contemporaries considered the National League a legitimate authority. One
United Irish League
The
Local UIL branches acted as courts, claiming jurisdiction over all matters relating to land in their area. People accused of violating the League's code would be summoned to a meeting with the plaintiff and the board of the local UIL chapter; evidence would be heard, a verdict reached and punishment imposed.[71] The procedure was very similar to that used by British petty sessions.[72] The plaintiff typically acted as prosecutor, following a strict procedural code. Defendants were given sufficient notice to prepare a defence, and were allowed to appeal compensation demanded by plaintiffs. Decisions made by a parish court could be appealed to an executive court.[73] In 56 of 117 cases examined by Irish historian Fergus Campbell, the verdict was to censure the defendant; this typically led to a boycott.[74] The appearance of fairness and impartiality was essential to encourage parties to bring their grievances to UIL courts, and the branches strove to maintain that image. Decisions were published in local nationalist newspapers, allowing UIL leaders to be accountable for their rulings. Campbell found no case in which a UIL court wrongly convicted an innocent man.[75]
Although the "law of the League" was partially derived from the central leadership's guidance and its 1900 constitution, local branches also pressured national leaders to include their own issues. The UIL's priorities shifted from anti-grazier agitation to land purchase. According to the police, their courts' verdicts were enforced by "boycotting, intimidation, and thinly veiled allusions in the Press".[28] Police received reports of 684 boycotts and 1,128 cases of intimidation, about two-thirds of agrarian offences, between 1902 and 1908.[76] Demonstrating the UIL courts' close connection to the concept of "unwritten law", the harshest penalties were reserved for "land-grabbers". After passage of the 1898 Local Government Act, which delegated some governmental powers to local elected councils, the UIL competed in local elections. It flew its flag over the court building if it was victorious, although such victories helped legitimize the British justice system.[77]
The courts were central to UIL agitation, because they dictated the targets and manner of agitation.[28] Between October 1899 and October 1900, over 120 cases were heard.[69] The inspector general said in 1907, "The law of the land has been openly set aside and the unwritten law of the League is growing supreme."[78] British historian Philip Bull described the UIL as a "proto-state".[79]
Dáil Courts
The new Sinn Féin party put arbitration courts into its program after its 1917 Ardfheis,[80] and established them throughout the country. According to party leader Arthur Griffith, "It was the duty of every Irishman" to obey the arbitration courts rather than seek justice from British courts.[81] The courts were favoured by Sinn Féin because they adhered to the principle of self-reliance in all matters, and arbitration between two parties in a dispute was legal and binding when the participants agreed to abide by a verdict.[81] Unlike the agrarian-society courts, Sinn Féin's courts claimed jurisdiction over crime and enforced a written constitution.[28][82]
Adhering to the party's policy of abstentionism, Sinn Féin MPs who were elected in the 1918 general election refused to take their seats in Westminster and set up the Dáil Éireann, a rival parliament.[83][84] In August 1919, during the Irish War of Independence, the Dáil announced the formation of a national court system for its nascent Irish Republic. The system included local parish courts, district courts, and a court of appeal. Parish courts dealt with petty crime and civil cases under £10, providing inexpensive and convenient access to justice. Local judges were elected and all officials received a salary, which cost the state an estimated £113,000.[84][85] The initial pretense of voluntary arbitration was dropped, and verdicts were enforced by the Irish Republican Army (IRA).[86] The resulting system had a high level of local initiative, with the Dáil exercising very little power.[87] Because the maintenance of British rule had come to rely so heavily on the police and courts to enforce its power, the rest of the Republic's apparatus would have been a "pitiful charade" if the Dáil Courts had not become popular.[87]
Their operation was very similar to the British courts they replaced, and historian Mary Kotsonouris described them as "primarily concerned with the protection of property".[83] The courts had a reputation for fairness, and even unionists respected their role in maintaining order.[88][89] Known for their "conservative, almost reactionary character",[87] they are "widely considered to be one of the greatest successes of the First Dáil".[89] According to Irish unionist peer Lord Dunraven,
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.[90][91]
The Dáil Courts also brought all subversive agrarian courts[92] and IRA courts-martial, which had been operating in some areas after the withdrawal of the Royal Irish Constabulary,[93] under the jurisdiction of the Dáil. The Dáil Courts refused to hear cases dealing with land issues, and in some cases the IRA was called in to remove squatters from private property.[89][92] By 1921, those who used British courts were accused of "assisting the enemy in time of war".[90] The IRA attacked everyone connected with the British judicial system, and declared that "every person in the pay of England (magistrates and jurors, etc.) will be deemed to have forfeited his life".[94] Intimidation led many JPs to resign, and some RMs were assassinated.[95] The RIC lost control of much of Ireland due to the Irish War of Independence, and rulings from British courts could not be enforced. Suppressed by the British government, the courts continued to operate underground.[88] Their activity peaked during the July–December 1921 truce, when they were busy dealing with ratepayers who failed to pay taxes to the Republic.[96]
As a result of the 1921 Anglo-Irish Treaty, the British courts were turned over to the Irish Free State.[85] Count Plunkett requested a petition of habeas corpus for the detention without trial of his son, George (an anti-Treaty guerilla), in 1922 after the split between Irish nationalists over the treaty.[89] The judge, Diarmuid Crowley, ordered the younger Plunkett's release; however, Crowley was arrested by the Free State government.[97] The Dáil court system was shut down and declared illegal after this incident, although a commission was appointed to iron out the loose ends in open cases. The courts were officially abolished by the Dáil Éireann Courts (Winding Up) Act 1923.[89][85]
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