England has been an exception. In the year 1066 England was invaded by Duke William of Normandy at the head of a ragtag army of landless barons, mercenaries and outlaws.
The ramshackle Anglo-Saxon kingdom collapsed at once and William and his Normans imposed themselves on the hapless Angles and Saxons as a military dictatorship.
William and his successors had no interest in high-sounding concepts like Justice, but they were very concerned with Order. They ran their kingdom in a manner that will be perfectly familiar to anybody who has studied the internal structure of the Mafia.
It was a ruthless top-down dictatorship: the king was boss and his authority unquestionable. The laws were, basically, the king’s orders. The ultimate source of law, still enshrined in the preamble to every act passed at Westminster, was ‘Quod placuit principi’ (‘What pleases the monarch’).
However, kings had more on their minds than thinking up laws and they left decisions about legal matters largely in the hands of local barons who functioned as judges. Where some issue on which there was no established law came before a judge, then the judge decided what the law ought to be and from then on that was the law on that particular issue. Thus a hotch-potch of laws gradually accumulated, collectively known as English Common Law.
In Brehon Law civil matters were usually resolved by arbitration while in criminal matters victim compensation was the main focus. The brehons (judges) had in practice not only to know the law but to be skilled social workers.
The adoption of Christianity had made little impact on Brehon Law, which for example continued to permit divorce.
The Brehon Laws were written down around the seventh and eighth centuries and while in practice they evolved to meet changing situations, it was unfortunate that no process existed whereby the legal texts could be changed, so that they gradually became to seem out-dated. However, the Brehon Laws remained in force in Gaelic Ireland until the seventeenth century and the end of the Gaelic Order.
The invaders applied the legal system only to themselves. The native Irish were legal un-persons: they had no rights and could even be killed without penalty. When after the sixteenth century England became a major colonial power, this same attitude came to be applied to the native inhabitants of other lands invaded by England: in North America, the West Indies, Africa and so on.
When after the Reformation England became Protestant while Ireland remained Catholic, this developed a denominational aspect, but in fact the oppression and robbery of the Irish continued to be on a racial basis.
If we look at England’s last three Tudor monarchs: Edward VI (1537-1553) was a fanatical Protestant, Mary I (1553-1558) was an equally fanatical Catholic while Elizabeth I (1558-1603) was more or less an agnostic, but all three applied the exact same genocidal policy towards the Irish.
The Anglo-Normans established their own ‘Parliament’ which began to pass various laws. In 1494 Poyning’s Act extended English Common Law to Ireland.
In Ireland itself most people, Irish and foreigners, preferred to use the Brehon courts until these were finally suppressed after the Cromwellian war. The city of Galway, a great trading centre in the Middle Ages, used German law (‘The Law of the Emperor’) until the Cromwellian occupation. After the Act of Union (1800) laws passed at Westminster applied automatically to Ireland. A ‘justice’ section in Dublin Castle looked after police, prisons, appointment of judges and the like.
These courts were immensely popular: even unrepentant Unionists did not hesitate to appear before them. Their popularity was due to their absolute fairness, to the absence of obfuscation in the proceedings and to the presence of true equality before the courts.
Republican courts continued to function until after the end of the Civil War. Under the Saorstát they were ruthlessly suppressed and all decisions of Republican courts were retrospectively declared invalid. The Saorstát never disowned the actions of the preceding British administration: so for example the condemnation and hanging of Kevin Barry remained and still remains endorsed.
To retain in office the hanging judges inherited from the British was too much even for Cosgrave and company to swallow and these were pensioned off and either retired to England or else took judicial posts in other parts of the British Empire. New judges were appointed; almost entirely former Redmondites who had lain low during the previous struggle. There were also Protestant judges of more or less Unionist outlook.
The legal system carried on as before. The Saorstát tried to introduce a new judicial regalia, based on the robes of American and Continental judges, but this reform was rejected by the judges, who continued to wear the traditional cloak and horse-hair wig of an English judge.
Attempts ever since by the Saorstát to introduce reforms in that area, and other areas of court procedure, have been spurned and the authorities have been at a loss as to what to do about it. They can hardly sack a man for the way he chooses to dress! Judges also insist on being addressed as ‘Your Lordship’ although they are no longer ‘Lords’ and they love their rituals: the bowings and back-steppings and the rigmaroles chanted in Latin or Norman French.
As regards the chain of command, the king of England was in theory ultimately in charge. Judges were appointed on his behalf by the Governor General, but only when nominated by Kevin O’Higgins on behalf of the Executive Council.
Added to this was English Common Law, the accumulated decisions of English judges ‘from time immemorial’.
Laws passed in England after 1922 had no application within the Saorstát, but in practice carbon copies of most of them were put through Leinster House as a matter of course.
With regard to Common Law, decisions of English judges since 1922 have continued, on no known lawful authority, to be applied routinely in cases appearing before the Saorstát’s courts. For example Lord Denning’s famous ‘appalling vista’ judgement of March 1988, in which he declared that it was better to have innocent persons remain in prison than have the public lose confidence in the police and the judicial system, has since been used to decide cases appearing before Irish courts. In Britain the ultimate court of appeal is the House of Lords at Westminster. After 1922 right of appeal to the House of Lords was withdrawn and a Supreme Court was established in Dublin to fulfil the same function. However the Supreme Court in deciding cases almost always refers to some previous decision of the House of Lords.
It all came to a head in the late 1940’s through a series of cases concerning the religious up-bringing of children. In 1908 the Roman Catholic church brought in a rule called Ne Temere under which, when a Protestant elected to marry a Catholic in a Catholic ceremony then he or she was required to sign a document agreeing that all children of the marriage should be brought up as Catholics. It was perhaps a bad rule, and it has been the subject of much criticism.
In the Saorstát the legal position was defined by the English ‘Guardianship of Infants Act’ of 1886, passed at the instigation of the Anglican church, under which the husband was declared to be the ‘sole guardian’ of all the children of a marriage. In England itself this Act was abolished in 1925; it seems that with the rising divorce rate fathers were no longer quite as anxious to be the sole guardians of their offspring, but it remained in force in the Saorstát.
There were three cases in which the conflicting claims of the 1886 Act and of Ne Temere came to court: the Frost case, the Isherwood case and the Tilson case. In all three a Protestant man married a Catholic wife, agreed to have their children brought up as Catholics and then changed his mind.
Mr. Frost had a falling out with his wife and left her, and took away their six children and placed them in a Protestant orphanage and then died. The widow sued the orphanage for the return of her children but was unsuccessful. The court ruled that though her husband was dead, he had handed over his sole guardianship to the orphanage when he was alive and the mother had no rights in the matter.
In the second case a young nurse went to England and there met and married a doctor called Isherwood. A child was born and another was on the way when the doctor fell under the influence of a relative who was an Anglican clergyman and who reproached him for agreeing to let his children be brought up Catholics. He therefore informed his wife that he had changed his mind and their children would be reared as Protestants.
The wife, who was of pious disposition, fled back to her home town in Ireland taking the child with her. She was pursued by the clergyman, who accosted her in the street and tried to snatch the child from her. A struggle ensued during which the woman was knocked to the ground.
The clergyman was prosecuted for assault but was merely ‘bound over’. He was also informed that his actions had been quite pointless because under ‘Irish’ law Dr. Isherwood was the sole guardian not only of the child but of the second child the mother was expecting.
In the Tilson case a father also took away his children and put them in a Protestant orphanage, and Mrs. Tilson sued for their return to her custody. Her lawyers attempted a variety of arguments: the one that won the case was that the 1886 Act was ‘repugnant to the constitution’ because that constitution stated that the ‘parents’ (plural) were the primary educators of their children and the mother could not be excluded.
The Supreme Court agreed and Mrs. Tilson got her children back. The judgement was greeted with howls of outrage from Protestant/Unionist circles, with claims that it had been made due to pressure from the Catholic church. (This accusation is still found in many texts).
What was really upsetting the protesters was that a law passed by the Westminster parliament and personally signed by the monarch had been invalidated by what they saw as an inferior or subordinate court.
It should be noted that the 1886 Act was overthrown not because it was manifestly cruel and unjust but through a fortuitous wording in the 1937 constitution.
In 1972 a Ms Byrne fell into a hole dug by the Electricity Supply Board and sued for compensation. The ESB claimed Crown Immunity but the Supreme Court declared that this had now expired.
However in a recent case (Geoghegan vs The Institute of Chartered Accountants) it was ruled that charters granted by the monarchy before 1922 are still in force.
Many years ago a lawyer pleading before the American Supreme Court said something to the effect that the law means what it says. Chief Justice Douglass retorted: “No, the law means what I say it means!” Judges have discretion to ‘interpret’ the law, and inevitably tend do so in favour of their own political and class interests. One only needs to look at the way safeguards in the extradition laws have been rendered useless by anti-Republican judges.
The fact that the law is in a complete mess is rather advantageous to the legal profession, which makes a great deal of money out of it. Judges and barristers are organised, in the Bar Council and the Law Library, and have in effect one of the most powerful and successful trade unions in the country, if not in the entire world.
RIC men were armed with revolvers and carbines and organised on military lines and lived in barracks. The ordinary members were recruited mainly from poor rural families while the senior ranks were mostly Protestants of middle class background. It was widely believed that the top posts were reserved for Freemasons.
As with many other institutions, the RIC was an experiment in colonial administration which was deemed successful and copied in many other British colonies.
In areas freed from British control a Republican Police, made up of IRA members seconded to police work, operated fairly successfully.
The British tried to set up a rival force which they called the Civil Guard which they hoped to use to counter Republican activities. When first sent out on patrol, the local IRA fired a few shots in the air and the Civil Guard threw their guns away and ran and no more was heard of them.
Though the Republican Police already existed, pro-treaty elements immediately began organising a separate police, to be known as Garda Síochána. This was formally established in February 1922 with Michael Staines as Commissioner and former RIC District Inspector Walsh as Deputy Commissioner. Other ex-RIC officers were appointed to various senior posts and recruitment of trainees began, mostly from IRA volunteers.
A training depot was opened in Kildare Town. The pay was good and there were plenty of applicants. But things did not go at all smoothly: resentment at the imposition of former peelers in all command positions was made worse by their arrogant behaviour and eventually a mutiny erupted. Staines and Walsh fled from the depot and were pursued through the streets of Kildare Town and had to take refuge in the house of the parish priest.
Soon afterwards the Civil War broke out and the bulk of the recruits defected to the Republican side after breaking into the old RIC arsenal in the depot and seizing the contents.
A new Garda Síochána was set up in August 1922 with Éoin O’Duffy as Commissioner. This time it was decided that the force would be modelled on the DMP and would be unarmed: Kevin O’Higgins was nervous about arming former IRA men, he felt it safer to have all guns securely locked away in armouries.
The force expanded rapidly and soon penetrated into all areas of the Saorstát. Even during the Civil War it was usually accepted in Republican areas as it was perceived to be a neutral body. That was to change before long!
Oriel House was taken over and became a much-feared interrogation centre. All three groups were made up entirely of ‘ex-British officers’, probably a euphemism for former Black-and-Tans. The Oriel House team, about 80-strong, was disbanded after the Civil War: supposedly because of squeamishness on the part of Kevin O’Higgins; but a core was retained as G-division of the DMP: the G-men, headed by ex-RIC Inspector David Neligan. In 1926, after the DMP had been amalgamated with the Gardaí, this unit was re-named the Special Branch in imitation of English nomenclature.
There were many members who came to realise they had been fooled by O’Higgins and O’Duffy, that the rulers of the Saorstát had no intention of using any ‘stepping stones’ to an Irish Republic and indeed were all the time pushing the state back closer to England. One result of this was low morale, worsened by a series of pay reductions. But many members now had families to support and also were open to arbitrary victimisation by their superiors. There emerged a recognisable ex-Republican type of Garda; cynical, contrary and bitter. Alcoholism became a major problem. Éoin O’Duffy had been appointed Garda Commissioner largely because he was a member of the inner circle around O’Higgins. He was not suited to the job and was not particularly bright and the ex-RIC cabal found him easy to manipulate.
The Gardaí themselves as police go had things fairly easy. At the time there was very little crime, and most of what there was was fairly petty. Recruits had to be tall and fit but otherwise no great interest was taken in their capabilities and the general level of ability tended to be low. There was even a schoolboy joke: “I tried for the Guards, but I passed the intelligence test”.
The ‘Secretary’ (civil service head) of this department is one of the most powerful people in the State, and does not have to account to the electorate. It is clear that in some cases this power can be dangerous. Let us recall the strange case of Peter Berry, instigator of the 1970 ‘Arms Crisis’, who set up his own private special branch within the Special Branch and used it to spy on Leinster House politicians: including it appears his own minister.
A person with that sort of power would obviously be targeted by foreign intelligence services, either to obtain co-operation or to be fed with misinformation and propaganda. This was the source of the ‘Reds Under the Beds’ scares that periodically used to erupt. It was soon discovered that gombeen politicians, those of Fine Gael in particular, can easily be scared witless with horror stories about ‘subversion’ going on everywhere.
There was indeed subversion going on, but of a different sort. Most technical and other specialist training for the Gardaí was obtained by sending them to police colleges in England. It seems pretty certain that while undergoing training these would be evaluated by their hosts with a view to their recruitment as agents or informants.
The rising incidence of crime was met not with better training and resources but rather with harsher laws and more brutal police methods. The worst period was probably the reign of the Cosgrave-Corish coalition (1973-1977), when the notorious ‘heavy gang’ was active. During that era, military intelligence became aware that a young Special Branch man called Patrick Crinnion was holding regular meetings with a mysterious stranger in the bar of a Dublin hotel: meetings at which bulky envelopes were seen to change hands. They gleefully pounced on the pair, who both drew firearms and had to be physically overpowered. The captors were sure they had netted some Republican big fish, but the stranger identified himself as a Mr. Wyman, an officer of the British Secret Service. A very low-key prosecution followed, both men were fined a small sum and Crinnion was dismissed from the Gardaí and vanished.
At the time it was assumed that Crinnion had been passing on information about Republicans: but on reflection this makes no sense as such information as the Gardaí could obtain was passed on on request. Nor would Crinnion, who was employed mostly as a driver, have had access to much secret material anyway.
When Fianna Fáil returned to power in 1977 the Garda Commissioner Edmund Garvey was immediately fired. He sued for wrongful dismissal and when the government failed to offer a reason for sacking him he got his job back, though he resigned the following year and died soon afterwards. Whatever Garvey had done, it was so embarrassing to the State that he was able to call the government’s bluff: they did not dare reveal it. Since then it has been rumoured that Garvey had been using the facilities of the Special Branch to collect blackmail information on prominent public figures, and Crinnion had been his courier to Wyman.
To try cases involving Republicans a Special Criminal Court was set up, presided over by three judges, in which normal rules of evidence and the inconvenience of a jury are dispensed with. The judges appointed to this court over the years have been a strange mixture: many have been old hacks at death’s door who should have been pensioned off years ago. One appeared to be permanently intoxicated. One had a chronic bowel complaint and had to have his chair fitted as a commode. Another habitually fell asleep in court after lunch. One of them dropped dead in the middle of a very expensive trial, which had to be started all over again.
Chief justices also tend to be political nominees. TF O’Higgins, a nephew of Kevin O’Higgins, was a career Fine Gael politician, became Minister for Defence in 1949 and Minister for Health in 1954. He stood against De Valera in the presidential election of 1966 and against Childers in 1973. He was appointed to the Supreme Court by the outgoing Cosgrave coalition, of which he was a member, though he had no previous judicial experience.