LAWYERS, THE LAW AND HISTORY: IRISH LEGAL HISTORY SOCIETY DISCOURSES AND OTHER PAPERS, 2005-2011
by Felix M. Larkin and N. M. Dawson (eds.). Dublin: Four Courts Press, 2013. 344pp. Cloth $74.50. ISBN: 9781846822445.
Reviewed by Richard A. Cosgrove, Department of History, University of Arizona. Email: rcosgrov [at] u.arizona.edu
An edited book of essays poses a number of challenges for the reviewer. If the articles cover a wide variety of topics or if the contributions vary in value, then the reviewer must pick and choose in order to provide potential readers with an accurate assessment with respect to scholarly quality or breadth of appeal. The volume under review illustrates this problem because it has no central focus. Irish legal history is, I suspect, an acquired taste for those who specialize in the subject. Thus of the topics treated some will appeal to lawyers, some to historians and others to scholars who combine both areas.
The collection of papers is divided into two sections: six are on lawyers in history and eight are on the law and history. With no disrespect for the omitted, I propose to examine three articles from each part to present to potential readers a sense of the issues covered. I concede at the outset that these interested me the most and another individual might have chosen differently. At the outset, therefore, the volume presumes an extensive familiarity with the post-Union legal and political sphere; it is not a tome for the faint of heart.
In the essay “The three judges of the supreme court of the Irish Free State, 1925-36,” Hugh Geoghegan investigates the interesting question of how different the supreme court was, absent the ties to Britain. Free from the occupying power, many in the south anticipated that the alien English legal system would disappear in favor of a return to a specifically Irish tradition. As Geoghegan demonstrates, this revolution did not occur. Radical changes in legal doctrines, structure, procedure and forms of address did not occur. Geoghegan asks why the English traditions were not abandoned. The answer is three-fold. In the first instance, even under English rule, Ireland had enjoyed its own courts and, therefore, there was no reason to strike out on a new path; second, the Free State no longer had legal ties to Northern Ireland after 1921, so no removal of outside influences was required; finally, the bar and legal establishment wanted little transformation in doctrine and the judiciary. The author provides a wealth of evidence in support of his persuasive conclusions.
Patrick Geoghegan examines the legal career of Daniel O’Connell in “Daniel O’Connell and the law.” Historians of modern Irish history are familiar with his political achievements that dominated the first half of the nineteenth century. Less known is that fame at the bar paved the way for the political success he attained. Geoghegan attributes his [*386] achievements to the oratorical skills that he had honed in court, which in turn led to his political career. In addition, O’Connell also possessed an unrivalled knowledge of the law; when combined with his histrionic gifts, he made a showman of distinction in front of a jury. These qualities quickly made him a hero among the masses as a leader who challenged the Protestant status quo of his era. From lawyer to the tribune of the people at a time when few Catholics had advancement in either the law or politics provided the foundation for his place as the leading Catholic politician of his time. In this case again the author presents ample evidence on behalf of his argument.
Sir Edward Carson is known to posterity primarily for his career as a Unionist politician who opposed steadfastly any form of Home Rule for Ireland in the years prior to, during and after World War I. Carson is remembered most as a barrister for his brilliant cross-examination of Oscar Wilde in the libel trial that ruined Wilde. Lord Hutton, however, writes of another of Carson’s cases that, although not as renowned as Wilde’s, served to reinforce his reputation as a lawyer. The case, ARCHER-SHEE, became the basis for Terence Rattigan’s 1946 play THE WINSLOW BOY and subsequent movies in 1948 and 1999. In brief, the original case involved the expulsion of George Archer-Shee from the Royal Naval College at Osborne on the charge of theft in 1908. Carson took the case to show that the young man was wronged and should have his disgrace erased. The Admiralty had original jurisdiction and, as Lord Hutton examines in detail, it took Carson considerable maneuvering to place the case before a jury. Archer-Shee had his reputation restored but not his place as a naval cadet. Hutton concludes by noting that Archer-Shee joined the army and died in action at the first battle of Ypres in 1914, a centennial reminder of the outbreak of World War I. In the end, however, Carson’s triumph against formidable legal obstacles, reinforced his standing as a barrister of great skill.
In the second section on the law and history Adam Pole writes about one stereotypical villain of nineteenth-century Ireland, the sheriff. This office was charged with supervising evictions and selling property to satisfy a debt, duties that placed sheriffs as the enforcement arm of the landlord interest. Access to land remained at the heart of Irish economic, political and social problems. For the great majority in rural areas, the sheriff represented the state and affected them most. It was little wonder that the sheriff became emblematic of the enemy in the struggles for land that erupted periodically; inevitably the office attracted the hatred that its work entailed. Not until changes in the land law at the end of the century placed tenants in a more favorable position, Pole concludes, did the sheriffs gradually escape from the opprobrium that had followed them.
In a thoughtful article on the 1937 Irish constitution, Gerard Hogan makes the argument that this document did not express a narrow Catholic perspective in giving the Catholic Church a “special position”, as was charged by Ulster Protestants. After all, the United Kingdom was a polity that lived with a church by law established. By focusing on German jurist Hugo Preuss, the main architect of the Weimar constitution, [*387] Hogan holds that the Irish constitution expressed a number of influences apart from a dogmatic Catholicism. Even on matters of divorce and the family, the 1937 constitution reflected ideas that already existed in other countries; the unique place of the Catholic Church was not so different as many supposed, e.g., the Lutheran Church in Denmark. Special provision clauses were a common element in a variety of contemporary constitutions. Eamon De Valera, although certainly showing a dedication to Catholic principles, produced a constitution with broader influences than Catholicism.
Finally, Peter Crooks discusses the tragic incident of 30 June 1922 when Free State troops, seeking to evict IRA Irregulars from the Four Courts complex in Dublin, apparently caused a massive explosion destroying legal records stretching as far back as the thirteenth century. This amounted to, as Crooks writes, a self-inflicted “assault on a nation’s collective memory” (p.284). As catastrophic as this event was, Crooks delivers good news. He carefully narrates the reconstruction of legal documents over the past century. Although the originals can never be fully recovered, much of the past has at least been partially retrieved. In large measure many of the best sources have survived by careful examination of other classes of documents, permitting a sense of what the destroyed records had revealed. From disaster has emerged novel ways of seeking the past.
In conclusion, this volume may be recommended for research libraries only; it is too specialized to attract attention from undergraduates. While all the papers merit serious consideration, the lack of a unifying theme will perhaps prevent the readership it deserves. Those who consult the book will find rich rewards from their endeavors.
Copyright 2014 by the Author, Richard A. Cosgrove.