When Sinn Féin became the law in the country

Banishment to Mutton Island, off Quilty, for three weeks was the punishment for two men who disobeyed an order of a Sinn Féin tribunal to rebuild a wall they had demolished, writes Gearóid Ó Faoleán, as he looks at the the Dáil or Republican Court from 1919 to 1922.

THERE is a scene in Ken Loach’s The Wind that Shakes the Barley often inexplicably overlooked in discussions of the film, considering its significance to the period and beyond. The scene is of the proceedings of a Dáil or Republican Court, held in this case in a converted classroom. Despite their local impact, the Dáil courts and those who made their existence possible are largely excluded from our history and remain unknown. As Michael Hopkinson wrote of this amnesia: The activities of the flying squads appeal far more easily to the popular memory than that of the revolutionary administrator.
So what exactly were the Dáil courts of this period? In 1919, Dáil Éireann’s first year, a decree was passed allowing for the establishment of courts throughout the country as part of the general campaign of boycotting British administration. For the most part, the courts were presided over by local people of standing; prominent Sinn Féiners, clergymen and local lawyers. In a rather radical move for the time, women were eligible to stand as judges – as shown in The Wind that Shakes the Barley. Former magistrates within the British legal system and justices of the peace were also considered eligible.
However, it was to be almost a year after the Dáil’s decree calling for these arbitration courts before real action was taken on their establishment nationwide. Events in the west of the country were to force the Dáil’s hand in this. In the spring of 1920, a land war erupted along the western counties when cases of cattle-drives and land expropriation mushroomed. While not going into the socio-economic background of this period of agitation, suffice to say the Dáil was forced to consider a serious means of dealing with the myriad disputes arising from it. In May 1920, further to the decree a year previously, a comprehensive system of parish and district courts of arbitration were decided upon. As Mary Kotsonouris writes of this system, “The rules were largely borrowed from the independent courts already established in West Clare”. One can thus look at the initial de facto experience of the setting up of Dáil courts as being a revolution from below.
The courts were predominantly concerned with local civil cases, land disputes, debts and such, while the IRA dealt with criminal cases in the area. The need for some sort of police body to help enforce the decisions of the courts led to the creation of the Irish Republican Police in June of 1920. This force was often drawn from the ranks of local IRA volunteers and was responsible for the protection of the courts and the enforcement of its decisions. Originally, it was set up by Richard Mulcahy, then chief-of-staff of the IRA and Cathal Brugha, Minister of Defence, before being transferred to the control of the Home Affairs Department under Arthur Griffith.
A constant problem during the war against the British was how to punish those found guilty in the Dáil Courts. As the Provisional Government was in possession of no official prisons or detention centres, fines were a commonplace punishment, as was labour given by the guilty to the wronged. For more serious crimes, the guilty party was often ordered out of a district, county or even the country. Given the localised nature of Irish society at the time, exile from one’s county could be quite a serious sentence. To give one instance of the often-surreal nature of the mixed justice of the time, two men who disobeyed an order of a Sinn Féin tribunal to rebuild a wall they had demolished were exiled to an island off the Clare coast (Mutton Island) for three weeks. As a party of RIC men arrived by boat to rescue them, they 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.
As the conflict with Britain dragged on, Sinn Féin began to distance themselves from their early, more socially-radical pronouncements in an attempt to portray themselves as champions of the status quo – the need for clerical support and that of the middle classes being seen as essential. This change was reflected in the judgements of the Dáil courts.
“It is a curious anomaly,” noted Art O’Connor, “that those aggrieved landowners, mostly persons with strong British sympathies and hence opposed to the Republic, were actually the first section of the community to advocate strongly the setting up of a judiciary responsible to An Dáil”. In areas such as Connacht, Clare and Kerry, the IRP was being used more and more to counter the social agitation wrought by the land war. Labourers and small farmers increasingly found themselves at a loss as native arbitration set out to prove its credentials as a disciplined, conservative body. Kevin O’Higgins, Minister for Justice in the post-Treaty government, later boasted of his government being “the most conservative-minded revolutionaries that ever put through a successful revolution”.
By the time of the Treaty, the provisional government, increasingly wary of the loosely disciplined and still sometimes radical Dáil courts sought their abolition. This they achieved by the outbreak of the Civil War in the summer 1922, an act in the words of Kotsonouris, carrying ‘a whiff of illegality’. To paraphrase one historian, Ireland chose to abandon an established network of Sinn Féin courts in favour of a legal system remarkably familiar to the old status quo. The rigmarole of wigs and gowns was only the outward manifestation on the innate conservatism of the legal and political establishment of the Irish Free State.
As a postscript, the last appearance of the Dáil courts happened to be in the very same county where they had first emerged and shown true judicial effectiveness: In 1925, the High Court in Ennis got around to finalising outstanding cases dating back to 1920 and 1921 from the local parish courts. With those decisions, the last native system of official arbitration since Brehon times passed into history.
Gearóid Ó Faoleán is a
postgraduate history student
at the University of Limerick.