Subversive law in Ireland 1879–1920: from ‘unwritten law’ to the Dáil courts

Published in 18th-19th Century Social Perspectives, 18th–19th - Century History, 20th Century Social Perspectives, 20th-century / Contemporary History, Issue 5 (Sep/Oct 2005), Reviews, Volume 13

Subversive law in Ireland 1879–1920 from ‘unwritten law’ to the Dáil courts 1Subversive law in Ireland 1879–1920: from ‘unwritten law’ to the Dáil courts
Heather Laird
(Four Courts Press, E45)
ISBN 1851828761
In this study the author looks at the self-help schemes put in place by the native Irish to settle their grievances by devising alternative tribunals in which they might be aired and adjudicated upon in the face of a judicial power from which they felt alienated. She then looks at how these developments fit into theories of resistance that examine the experience of colonised countries, particularly in relation to land. As Declan Kiberd says on the dust cover, ‘critical legal studies meet the subaltern discourse of India…’.
The Land League in the 1880s marshalled the misery of the tenants in Mayo into a campaign that organised non-payment of rents, opposed evictions and sponsored protests. Its membership spread rapidly throughout the country and was crucial to securing Parnell’s position as ‘uncrowned king’. It would have been of interest to learn something of the structure of their tribunals and in what way their findings were enforced. However, it was the local people who ran with the lead given and devised their own demonstrations of protest. Dr Laird vividly describes the exuberant and jolly ‘hunt-ins’ of the peasantry, with their bands and ballads, mocking the pretensions of their masters and wreaking havoc upon their privileged amusements. Landlords fumbled about in crumbling Shangri-la, reluctant to step outside and confront reality. Brian Friel’s recent play, The Home Place, shows the fatal inertia that they were incapable of shedding.
The Land War undoubtedly caught the attention of contemporary novelists, amongst others. The author looks in depth at Emily Lawless’s Hurrish, identifying the main protagonist with the crisis of conscience caused by the recurring conflict in our history between the tactics of peaceful protest and the violent demonstrations into which people might be unwillingly drawn and forced to choose between moral compasses. She argues that the novel ‘narrates the absence of the very conditions upon which the socialising ends of its literary form was reliant’. Similarly, when Trollope in The Landleaguers set his story in the west of Ireland and the confrontation between the fox-hunting gentry and the tenant-farmers, he was illustrating how the land campaign had given the latter the confidence to challenge the hitherto absolute rights of the landowner. Trollope may not have liked it, but within a few years landlordism would be dead.
While there have been attempts to link agrarian troubles in 1919–20 in the west of Ireland to the Land War, it should be remembered that what the local make-do tribunals, spreading like a wildfire cottage industry, tried to settle were not disputes between absentee landlords and starving tenants but those arising from the bold seizures and occupation of other people’s land by individuals or groups who considered that their own holdings were too small to be viable, as Tony Varley’s pertinent 1988 study, Agrarian crime as social control, demonstrates. Indeed, Dr Laird points to the real change of direction between the Land War of the 1880s and the overall spirit of nationalism 30 years on, which had already decided that the land struggle had ended with the 1903 Wyndham Act. These disputes ‘were increasingly defined by anti-colonial nationalism as a damaging social concern that detracted from the more important political issue of the state’. The irony was that the well-intentioned efforts by community and national leaders to prevent class warfare spoiling the field led directly to the abandonment of Griffith’s original vision of gentlemanly arbitration in favour of the coercive and hierarchical system of Dáil courts.
While the author seems to include these courts under ‘subversive law’, strictly speaking it was the court administration that was subversive: it was, after all, the established law that they enforced. Sensibly so, since it appealed to convenience and allowed litigants to proclaim their nationalist solidarity by taking their ongoing grievances to be decided in an alternative setting. It was a sober, even clerkly, enterprise that looks quite grey in comparison to the energetic Wren Boy-type pageantry, anti-hunt and anti-eviction activity described in the previous chapter. That is not to say that a whiff of dangerous ‘Whiteboyism’ did not linger to trouble the peace of mind of the Free State government. The Dáil Courts Winding-up Amendment Act 1924 was specifically drafted to stifle an agrarian protest about one estate in Mayo, a disgraceful use of legislation to thwart the enforcement of a court decision. Ironically, when the matter came before the Winding-up Commission, it was returned to the High Court, which—naturally—confirmed its own order!
Dr Laird invokes the experience of nationalist India opposed to colonial rule and the phenomenon of Subaltern Studies, of which the leading exponents appear to be Indian scholars. For someone unfamiliar with the new thought, it is somewhat difficult to grasp, although it would obviously repay the effort. It is primarily an attempt to place the past under the microscope of a certain historical discipline, although perhaps it might equally be called a political or sociological microscope, since the author tells us that ‘within the terms of subalternist historiography, the word “elite” incorporates both colonised and nationalist, while “modern” refers to both colonial modernity and anti-colonial nationalist modernity’. She also traces the changes in approach to the concept of resistance by different theorists.
Undoubtedly, these studies have an application to events in Ireland at the time of the First Dáil, where a successful programme of passive resistance was largely overtaken by armed struggle, with many participants common to both. Why is the latter celebrated in song and story and the quieter revolution, which in its time brought despair to the British administration, largely forgotten? And, given a choice, what did ‘ordinary people’ feel about it? On the other hand, it would be difficult to imagine the people of Ireland in the early 1900s equating their status with the word ‘subaltern’, particularly when used ‘for the general attribute of subordination in South Asian society, whether this was expressed in terms of class, caste, age, gender and office or in any other way’. Judging by the extensive bibliography, it is a flourishing discipline. It is to be hoped that there will also be room for A.J.P. Taylor’s belief that history is equivalent to the answer to a child’s question ‘And what happened next?’
Mary Kotsonouris


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