Dáil Courts and the ‘Brehon Magistrate’ Enigma

This centenary period marking the foundation of the Irish State provides an opportunity to reflect on a nascent indigenous Courts system which operated between 1919 and 1922, known as the ‘Dáil’ or ‘Republican’ Courts. At once revolutionary and conservative, these Courts would not survive the transition to statehood.

A particular focus here is the extent to which the Dáil Courts engaged with Brehon Law. In so doing, I highlight an intriguing little-known exchange within the Provisional Government civil service in 1922. This suggests at least one Dáil Court judge had been styling himself as a ‘Brehon Magistrate’. I then reflect on the potential implications, connected to a lingering ambiguity around the relationship between the Dáil Courts and the subsequent legal system of the Irish Free State.

Background to the Dáil Courts

It is often overlooked that, in parallel to violent upheaval during the Irish War of Independence 1919-1921, there was also a systematic effort to establish an indigenous governmental and civil administration. A vision for a national ‘arbitration court’ system was outlined in 1905 by Arthur Griffith, founder of the Sinn Féin movement [1]. He had the opportunity to implement this vision when, in 1919, ‘Dáil Éireann’ (i.e. the first revolutionary Irish parliament of this period) was convened.

Creating a realm outside the ‘official’ (colonial or British) legal infrastructure was, however, not a unique idea. An alternative ‘concept of justice’ had persisted in Ireland for some time, stoking the Land War in the nineteenth and early twentieth centuries. Some English observers perceived this Irish concept of justice as a hangover from the Brehon Laws. A more recent view sees it as ‘…less a tangible system of law directly derived from the Brehon Laws, than a space outside official law that [the Brehon Laws] had once inhabited’ [2].

Prior to 1905, that ‘space’ was periodically occupied by ‘subversive’ modes of dispute resolution. These included courts established by the Land League in the late 19th century, which adjudicated on tenancy disputes and ‘boycotting’ for example.

A (Very) Potted History of the Dáil Courts System

This section briefly sketches the Dáil Courts system to set the scene for the rest of this piece. For a comprehensive account of the Dáil Courts, I would recommend the excellent articles by the late Mary Kotsonouris for History Ireland and John Dorney for The Irish Story.

In June 1919 Dáil Éireann decreed ‘the establishment in every county of National Arbitration Courts’ [3]. Reportedly operational in most counties by June 1920 [4], these were known as ‘Sinn Féin’ courts. They were buttressed by Irish Republican Army (IRA) enforcement and tactics, including intimidation of ‘official’ (British) court jurors [5]. Such was their initial success, they diverted a substantial amount of cases away from the official courts [6].

29 June 1920 saw a step change in policy, with a Dáil decree mandating ‘the establishment of Courts of Justice and Equity’, becoming known as the ‘Dáil’ or ‘Republican’ courts [7]. Shifting gear from a system of (at least notionally) ‘voluntary’ arbitrations to these more formalised ‘compulsory’ courts was justified by the then Dáil Minister for Home Affairs, Austin Stack, in the following terms:

‘…The country was in such a state at the present time that the people looked to the Republican Government for their law and equity and in a very short time they would have ousted the English courts altogether...[8].

The Dáil Courts were to be structured as follows [9]:

• Supreme Court: This court sat in Dublin and had jurisdiction over the whole ‘Republic’. It had both ‘original’ (i.e. power to hear cases for the first time) and ‘appellate’ (i.e. power to hear appeals) jurisdiction. It could also, for example, transfer cases from the District Court to itself and change the venue of a hearing scheduled before any other court. The Supreme Court was to consist of not less than three legally qualified members (though only two were ever appointed).

• District Courts: District Courts were to be established at the level of each constituency returning a member of parliament to Dáil Éireann. They took referrals and appeals from the Parish Courts and, amongst other matters, dealt with higher value civil claims. District Courts consisted of five members, of whom two could be clergy, elected by the Parish judges. Legally qualified ‘Circuit’ judges were also appointed to hear more serious cases, reserved to them by District judges, plus District Court appeals.

• Parish Courts: Parish Courts were to be established at the level of each Roman Catholic parish. The Parish Courts typically dealt with lower value civil claims, minor crimes and certain tenancy matters. Determinations of Parish Courts could be appealed to the District Courts. Parish Courts consisted of three members, one of whom could be clergy. In practice, the three members were elected by conventions drawing representatives from Sinn Féin, local IRA Volunteers, Trades Councils and Cumann na mBan. The Parish Courts were at the coalface of the new Dáil courts system.

As 1920 wore on, these more formalised Dáil Courts attracted increased attention, now representing a direct challenge to British legal authority. Court sittings became more precarious as the broader security situation also deteriorated and parts of the country were placed under martial law. Dáil Courts managed to function sporadically here and there by going ‘underground’ [10]. By the ‘Truce’ of July 1921, they were re-emerging from the shadows and enjoyed a renaissance [11].

But following the Anglo-Irish Treaty of 1921, harbinger of the Irish Free State, the Dáil Courts were on borrowed time. They were brusquely stood down by the new ‘Provisional Government’ in the midst of civil war in 1922 – the immediate catalyst being a standoff between a Dáil Court judge and the Provisional Government regarding the detention of an ‘anti-treaty’ prisoner captured during a siege of the Four Courts [12].

A ‘Winding-up Commission’ would then be established in 1923 to oversee the registration of notified Dáil Court case decrees and orders, marking an end of the system. Those powers were transferred to the High Court in 1925 [13].

The Irish Free State went on to establish a new courts system, retaining many trappings of the inherited British framework. Certain Dáil Court structures were also retained, such as District Courts. However, the roughshod manner in which the Dáil Courts were abolished ensured they would inhabit an ambiguous place in Irish legal and political history.

Brehon Law and the Dáil Courts

It could be said that the Dáil Courts were both revolutionary and conservative. Their revolutionary credentials were assured by the fact of their existence and credible challenge to British judicial authority. In another sense, there was a conservatism in the familiar nature of the law and procedures applicable (or supposed to be applicable) within them. Whatever about outcomes across individual cases, ‘colonial’ legislation and the ‘common law’ etc. continued to be the legal bedrock of the Dail Courts. This is not altogether surprising for at least two reasons.

Firstly, the professional judges appointed to the upper Dáil courts (and the barristers and solicitors appearing before them), though obviously sympathetic to the Republican cause, had practised as lawyers within the common law tradition. That is of course not to detract from their broad education and range of interests – in the case of at least one Dail Court judge, James Creed Meredith, his interests included Brehon Law.

Secondly, a pamphlet known as the Judiciary set the procedural tone, noticeably from late 1921 – this had been shaped by a number of those who would become Dáil Court judges [14]. It was issued by the Dáil Ministry for Home Affairs in 1920 (updated early 1921), containing a ‘Provisional Constitution’, rules etc. for the Dáil Courts. Probably for reasons of expediency, Dáil Parish and District Court procedures replicated those in the ‘official’ British courts, pending any new Dáil Court rules that might issue later [15] (though none did). Neither did The Judiciary go into detail on Dáil Supreme Court procedures [16].

But of particular interest here is what The Judiciary had to say about the Brehon Laws:

‘…pending the enactment of a Code by An Dáil, citations may be made to any Court from the early Irish Law Codes or any commentary upon them in so far as they may be applicable to modern conditions, and from the Code Napoleon and other Codes, the Corpus Juris Civilis and works embodying or commenting on Roman Law but such citations shall not be of binding authority…’.

Another interesting caveat was: The law, as recognised on the 21st January, 1919, shall, until amended, continue to be enforced, except such portion thereof as was clearly motived by religious or political animosity [17].

A Dáil Court judge, Cahir Davitt, writing later recalled that it was ‘doubtful’ any formal determination of incompatibility on grounds of ‘religious or political animosity’ was ever made by Dáil Éireann. Davitt J also observed that this principle was ‘seldom considered’ by judges of the Dáil Courts either [18].

So in summary: the ‘official’ law, i.e. acceptable ‘colonial’ legislation and common law, as it stood on 21 January 1919 was supposed to apply in the Dáil Courts, pending legislation made by Dáil Éireann. Until the enactment of a new legal ‘Code’ – which, due to suppression of the Dáil Courts and the anti-Treaty movement etc., ultimately never materialised – the Brehon Laws (plus Roman, Napoleonic and ‘other’ Codes) could be cited in the Dáil Courts, but Dáil Court judges were not ‘required’ to follow them.

As far as the Brehon Laws were concerned, in one sense this was not a significant change. They had, for the most part, been formally displaced during the 17th century. But the Brehon Laws could still, even thereafter, be invoked within the ‘official’ courts in certain disputes regarding land and customary property rights existing from ‘time immemorial’. They have occasionally been relied upon in this manner post-1922 also.

In another sense though, The Judiciary marked a shift in emphasis. It did not confine the use of Brehon Law to narrow ancient customary rights scenarios etc. It was afforded a more freestanding, albeit non-binding, status, i.e. it could be cited ‘in so far as…applicable to modern conditions’. So here was, in theory anyway, a new opportunity for Brehon Law (and ‘other’ Codes) to proactively shape the development of ‘independent’ Irish law.

However, as Davitt J observed in later years: ‘Little advantage was taken of the provision enabling citations to be made from early Irish law codes, the Code Napoleon or the Corpus Juris Civilis’ [19]. Still, some worried about how an independent Irish legal system might shape up. A solicitor writing anonymously in the Irish Times in October 1921 fretted:

‘…if our British jurisprudence is to be swallowed up by the Aaron’s Rod of an Irish-speaking Brehon Law-Code Napoleon-system, the glories of a bench and bar which produced names that commanded respect all over the world and which, with all their faults, have a great tradition behind them, are definitely at an end’ [20].

These fears were not totally unfounded. In at least one instance a Dáil Court judge, James Creed Meredith, reportedly applied Brehon Law in an action for recovery of medical expenses taken by a woman who had been seduced and subsequently gave birth. Here Meredith J refused to apply an English common law principle that men were not liable to support their children born outside wedlock. Instead, he apparently invoked the Brehon Law offence of sleth (a type of rape offence)*, which left the perpetrator liable for rearing a child born as a result. Meredith J, writing later, reported that this precedent was ‘uniformly’ applied in the Dáil Courts afterwards [21].

Aside from this relatively isolated report, the general assumption has been that Brehon Law played only a marginal role in the Dáil Courts. It is challenging to form a clear view on this. Detailed accounts of Dáil Court proceedings, especially the lower courts, are scanty. But a curious set of Irish civil service correspondence from 1922 begs a question as to whether Brehon Law might have coloured proceedings in the Dáil Courts to a greater degree than historically assumed. Enter Judge Michael Murphy of Kilmihil Parish Court.

The Brehon Magistrate

On 11 April 1922 (prior to abolition of the Dáil Courts), a public servant at the ‘Teachers’ Pension Office’, now under the aegis of the Irish Provisional Government Ministry of Finance, wrote to Joseph Brennan – likely the same Joseph Brennan who was de facto head of the new civil service and the first Comptroller and Auditor General.

The Teachers’ Pension Office had received a pension application and accompanying solemn declaration made before a Mr Michael Murphy. He was described on the form as a ‘Brehon Magistrate’ in the Parish of Kilmihil in County Clare. So direction was sought from Brennan as to whether, ‘in the existing state of affairs’, this declaration should be accepted or rejected. The public servant felt that he ‘had no authority to accept a declaration made before a Brehon Magistrate’, as that title was not recognised for this purpose [22].

Following receipt of this query from the Teachers’ Pension Office, an internal Ministry of Finance memo was then prepared for Brennan, dated 20 April 1922. This also shed some interesting light on conditions on the ground at that time. The memo noted:

‘…the practice is to require the countersignature of a Magistrate to any declaration of this nature, but that exceptionally, owing to the diminished number of JPs [‘Justices of the Peace’], they have in some cases recently accepted the countersignature of Commissioners for Oaths…in this case the form is countersigned by the Brehon Magistrate. I think we should enquire of [the Ministry of] Home Affairs as to their attitude in general to these Magistrates and, if they are recognised in general, whether Mr Michael Murphy of Kilmihil is duly authorised to act as such’ [23].

A query then issued from the Ministry of Finance to the Ministry of Home Affairs, dated 26 April 1922, requesting the Secretary at Home Affairs to:

‘state whether…a declaration made before such an officer [i.e. a Brehon Magistrate] may properly be accepted…If so, can it be ascertained whether Mr Michael Murphy has been duly authorised by the proper authorities so to subscribe himself?’ [24].

The circumspect response from the Ministry of Home Affairs, dated 26 May 1922, confirmed that:

‘Mr Michael Murphy was acting as a Justice of the Kilmihill (sic) Parish Court at the time when the declaration referred to was made. He was under the rules entitled to take such a declaration…and it may, therefore, be accepted’ [25].

These administrative exchanges are revealing, including for what they do not say. Why did the enquiry from the Ministry of Finance to Home Affairs not ultimately broach the latter’s ‘attitude in general’ to ‘these Magistrates’ (plural), given such a query had been internally recommended within the Ministry of Finance? What about the tactful response from the Ministry of Home Affairs, sidestepping any explicit reference to ‘Brehon’ Magistrates? There may well have been little appetite to ventilate such issues in the fraught legal and political climate of Spring/Summer 1922.

Most importantly, what is to be made of the fact that a judge of a Dáil Court was publicly styling himself as a ‘Brehon Magistrate’? How widespread was this practice? Was it purely aesthetic or might it also imply that Judge Murphy (and any others similarly fashioning themselves) regularly applied Brehon Law in their courts? These matters await further research.

What can at least be said for now is that Judge Murphy’s styling as a ‘Brehon Magistrate’ was rich in historical symbolism. Using this moniker when discharging a ‘public notary’ function (e.g. witnessing legal documents) harked back to at least the fifteenth century when Clare ‘brehons’ performed similar tasks, such as the Meic Fhlannchadha (McClancy) [26]. Clare is also steeped in brehon heritage more generally, hosting the remnants of the Ó Duibhdábhoireann (O’Davoren) brehon school at Cahermacnaghten for example.

And who was Michael Murphy the person? Although this forename and surname are ubiquitous in Ireland(!), according to the 1911 census there was seemingly just one person (a farmer) of that name resident in the Kilmihil District Electoral Division at the time. It was quite usual for farmers to be elected to Dáil Parish Courts [27] but it would obviously be premature to assume this was the same person attracting attention eleven years later.

Another, perhaps more likely, possibility is that Judge Michael Murphy was a priest. A ‘Rev. Father Murphy CC’ (quite possibly a Father ‘M’ Murphy – the relevant record is unfortunately smudged) is listed as a judge in a nearby Clare parish sometime in the early 1920s [28]. He may well have been operating in Kilmihil in 1922. But the ‘Brehon Magistrate’ remains something of an enigma for the moment.

Some concluding thoughts

The Dáil Courts were just one casualty of the difficult birthing period of the Irish State. They continue to inhabit an ambiguous place in post-independence legal memory, a status they share with the Brehon Laws.

In the process of establishing a new courts system, the Irish Free State did facilitate the registration of Dáil Court decrees. And such decrees could be relied upon in the ‘new’ Irish Free State Courts in narrow circumstances. But uncertainty lingers on. Was Dáil Court case law, not least Meredith J’s foray into Brehon Law, valid legal precedent in the courts of the subsequent State?

Post-independence, the political objective was to ring-fence, as far as possible, Dáil Court decrees (i.e. individual case outcomes) from the new courts system [29]. Less clear is whether that also had the effect of restricting the judicial reasoning lying behind those decrees to the Dáil Courts period only. In any event, the enigmatic ‘Brehon Magistrate’ of Kilmihil might suggest the 20th century revival of a subterranean native legal heritage.

This article may be cited as J. Biggins, ‘Dáil Courts and the “Brehon Magistrate” Enigma‘, The Brehon Lawyer (August 2021)

The Brehon Lawyer is an independent blog. No incentives have been accepted for running this blog or for using particular sources. The blog is offered as a free resource and relies on my own investments of time.If you enjoy the content and would like to show your appreciation by ‘buying me coffee’, you can leave a ‘tip’ at: https://ko-fi.com/brehonlawyer

Sources used for this article

Cahir Davitt, ‘The Civil Jurisdiction of the Courts of Justice of the Irish Republic, 1920-1922’ (1968) 3 Irish Jurist 112

Heather Laird, Subversive Law in Ireland, 1879-1920 (Four Courts Press, 2005)

James Casey, ‘The Genesis of the Dáil Courts’ (1974) 9 Irish Jurist 326 (‘Casey 1’)

James Casey, ‘Republican Courts in Ireland: 1919-1922’ (1970) 5 Irish Jurist 321 (‘Casey 2’)

James Creed Meredith, ‘Desirable Ameliorations of the Law’ (1939/1940) 3 Journal of the Statistical and Social Inquiry Society of Ireland 63

John Dorney, ‘The Rise and Fall of the Dáil Courts, 1919-1922’, The Irish Story (25 July 2019) (Link)

Luke McInerney, ‘The Síol Fhlannchadha of Tradraighe, Co. Clare: Brehon Lawyers of the Gaelic Tradition’ (2016) 9 Eolas: The Journal of the American Society of Irish Medieval Studies 19

Mary Kotsonouris, ‘Revolutionary Justice: The Dáil Éireann Courts’ (1994) 3 History Ireland (Link) (‘Kotsonouris 1’)

Mary Kotsonouris, Retreat from Revolution: The Dáil Courts, 1920-24 (Irish Academic Press, 1994, repr. 2020) (‘Kotsonouris 2’)

Mary Kotsonouris, The Winding-up of the Dáil Courts, 1922-1925 (Four Courts Press, 2004) (‘Kotsonouris 3’)

National Archives of Ireland, Pensioners Declarations, re. teachers: question as to whether declaration made before Brehon Magistrate is acceptable (1922/FIN/1/702)

National Archives of Ireland, Miscellaneous books of Ministry for Home Affairs (DECC/47/1-5)

National Archives of Ireland, The Judiciary (DE/4/13/27)

Solicitor (Anonymous), ‘The Passing of a Profession I: Law in the Melting Pot’, Irish Times (25 October 1921) (‘Irish Times’)

Endnotes

[1] Kotsonouris 1

[2] Laird, p. 23

[3] Casey 1, p. 326

[4] Casey 1, p. 338

[5] Dorney

[6] Kotsonouris 2, p. 9

[7] Casey 2, p. 325

[8] Kotsonouris 2, p. 18

[9] Davitt, pp. 113-119

[10] Dorney

[11] Kotsonouris 1

[12] Casey 2, pp. 338-340

[13] Kotsonouris 3

[14] Davitt

[15] NAI, DE/4/13/27

[16] NAI, DE/4/13/27

[17] NAI, DE/4/13/27

[18] Davitt, p. 126

[19] Davitt, p. 126

[20] Irish Times

[21] Meredith, p. 69

[22] NAI, 1922/FIN/1/702

[23] NAI, 1922/FIN/1/702

[24] NAI, 1922/FIN/1/702

[25] NAI, 1922/FIN/1/702

[26] McInerney

[27] Dorney

[28] NAI, DECC 47/1-5

[29] See, e.g., Section 5 of the Dáil Éireann Courts (Winding-Up) Act 1923 (No. 36 of 1923)

* Distinguished from forcible rape. Sleth is usually associated in the Brehon law tracts with taking advantage of a woman who was drunk