On 30 June 1922 Irish legal history went up in smoke. It was wrenched apart and incinerated in a great explosion of munitions. The destruction of the Irish Public Records Office at Dublin's Four Courts marked the end of the first act in a tragedy of fratricidal folly known as the Irish civil war (1922–23). One contemporary eyewitness described the remains of the Public Records Office in the moments after the explosion as a ruin “littered with chunks of masonry and smouldering records”. The remains of the collection of legal documents that dated as far back as the thirteenth century were reduced to fragments of paper “gyrating in the upper air like seagulls” (Ernie O'Malley, The Singing Flame (Dublin 1978), 114–15).
The investigation of records that escaped this inferno and the promotion of Ireland's legal past as a whole were important objectives in the establishment of the Irish Legal History Society. The society has come close to publishing a book for every year since its foundation in 1988. Its latest offering, Lawyers, the Law and History, represents the 22nd volume and presents a collection of works based on some of the finest papers delivered to the society.
Peter Crooks’ chapter provides a chilling picture of the destruction of records in 1922. His description of the determined efforts of the Victorian designers to fireproof the archive at the Four Courts adds to the poignancy of the tale. No preparations could have foreseen or prevented an explosion of munitions stored within the archive itself. The allocation of blame remains disputed but the magnitude of loss is beyond question. Crooks describes this act of destruction as “an assault on a nation's collective memory” (p. 284) and compares it to similar acts of cultural devastation in other periods and locations. These include the deliberate destruction of records by the Nazis in occupied Europe, the bombing of the national library of Bosnia and Herzegovina in 1992 and the looting of Iraq's libraries, museums and archives in 2003. Yet Crooks also provides the happy conclusion that a small part of the lost Irish records have proved to be recoverable. He provides a detailed account of a project known as “CIRCLE – A Calendar of Irish Chancery Letters c.1244–1509”. The purpose of this ambitious endeavour was to reconstruct portions of the medieval Irish chancery rolls from surviving copies and make them freely available on the internet. Readers can assess the success of this project for themselves by accessing these records at www.tcd.ie/chancery.
The loss of records cannot entirely explain the undeveloped state of legal biography in Ireland. This remains a lacuna that also extends to the period following 1922. Lawyers, the Law and History makes a substantial contribution to remedying this situation by devoting half of its contents to this theme. The opening chapter deals with the publication of the Dictionary of Irish Biography (Cambridge University Press 2009) (DIB) and its contribution to the development of Irish legal history. The author, James McGuire, is one of the editors responsible for the launch of this important scholarly resource. He provides an overview of legal biography in the DIB from the time of Dubthach of the moccu Lugair, an early medieval poet and judge, to Mella Carroll (1934–2006), the first woman to be appointed as a judge of the Irish high court. The explosion at Dublin's Four Courts was joined by a second event in 1922 that had a determining influence on modern Irish legal history. This was the final confirmation of the partitioning of the island into two jurisdictions. The Irish Legal History Society spans both of these jurisdictions and this is reflected in its latest publication. Lord Carswell, Lord Chief Justice of Northern Ireland (1997–2004) and Lord of Appeal in Ordinary (2004–09), provides a chapter on the creation of a judiciary for Northern Ireland after partition, while Hugh Geoghegan, judge of the Supreme Court of Ireland (2000–10), provides an assessment of the judges of the Supreme Court of the Irish Free State from 1925 to 1936. The theme of judicial biographies being provided by serving and retired judges now appears firmly established in Irish historiography. This was a noteworthy feature of the DIB and is a central theme of many of the contributions to Lawyers, the Law and History. The assessment of judicial careers by other judges has now become so firmly entrenched in Irish scholarship that it could be promoted as a possible disincentive against abuse of power in judicial office.
The DIB has suffered criticism for its focus on judicial biography at the expense of attention to lawyers. James McGuire points out that solicitors and barristers do not leave behind written judgments, tangible records for the historian (p. 3). Criticism of this nature cannot be levelled at Lawyers, the Law and History which includes analysis of the careers of important lawyers whose legal background has been largely overshadowed by their participation in politics. These include biographical chapters on Daniel O'Connell and Edward Carson, twin colossuses of Irish nationalism and unionism. Patrick Geoghegan highlights O'Connell's impressive knowledge of the law and consistent ability to provide penetrating cross-examination while acknowledging that these qualities have been overshadowed by occasional flashes of courtroom trickery that have been preserved in oral folklore. Lord Hutton, Lord Chief Justice of Northern Ireland (1988–97) and Lord of Appeal in Ordinary (1997–2004), provides a chapter that shows how the legal career of Edward Carson has been commemorated in a more modern form of folklore. Carson played a leading role in a case concerning a charge of theft that threatened to shatter the future of a teenage naval cadet in 1910. The legal skills and personal sympathy displayed by Carson in the successful defence of George Archer-Shee are immortalised in The Winslow Boy which has been presented as a play (1946) and made into two films (1948 and 1999).
The considerable contribution of law and lawyers to Irish literature is represented by a chapter focusing on the significance of these themes in James Joyce's Ulysses. Adrian Hardiman, a serving judge of the Irish Supreme Court, reveals that compendious novel as an unexpected “who's who” of the legal community of Edwardian Dublin. It may surprise some to learn that Joyce attended law lectures during his time at university and was seriously urged to become a barrister by his father. Joyce's interest and knowledge of the law will provide a mixed source of fascination and shame for those, like this reviewer, who have failed repeated efforts to actually finish this most celebrated of Irish novels.
The remarkable career of the “soldiering lawyer” W.E. Wylie is commemorated in a chapter by Robert Marshall, current president of the Irish Legal History Society. Wylie, as a second lieutenant in the British army, was involved in the military operations in Dublin aimed at suppressing the rising of Easter 1916. He also reluctantly acted as the prosecuting lawyer in the field general courts-martial of the leaders of the rising. Readers who might expect this Presbyterian unionist to be demonised by Irish nationalists may be surprised to learn that Wylie earned a reputation for sincerity and fairness during the 1916 trials that ensured that he ended his legal career as a judge of the High Court of the Irish Free State. It is likely that Wylie's unexpected intervention in saving the life of W.T. Cosgrave, later the first president of the Executive Council (Prime Minister) of the Irish Free State, may also have played a part in securing his judicial appointment (p. 130). Marshall's overall conclusion on Wylie summarises the position of the great majority of the substantial unionist population that chose to remain in the self-governing Irish Free State after 1922: “Post-independence, his position was neither that of an aristocrat nor a colonialist who had stayed on, but of a different and Irish sub-culture that demanded the right to contribute to the new Irish society, irrespective of religious persuasion or political allegiance during the period 1916–22” (p. 147).
Some readers may be interested to learn that Lawyers, the Law and History includes chapters that complement existing publications and includes material that had to be omitted from these works. Gerard Hogan, a serving judge of the Irish High Court, examines some of the foreign constitutions that influenced the drafting of the current Irish constitution of 1937. This chapter includes material that had to be omitted from Hogan's magisterial work The Origins of the Irish Constitution 1928–1941 (Royal Irish Academy 2012). Anthony Hart, a judge of the High Court of Northern Ireland (2005–12), provides a chapter on the foundation of the Inn of Court of Northern Ireland that complements his recent book A History of the Bar and Inn of Court of Northern Ireland (Nicholson and Bass Ltd 2013). Those interested in either of these texts, in addition to scholars who make regular use of the DIB, would be well advised to consult the relevant chapters in Lawyers, the Law and History.
No reader can fail to notice that John W. Cairns’ account of the legal position of slaves in eighteenth-century Scotland looks a little lonely in a work that is otherwise focussed entirely on Ireland. Yet the inclusion of this chapter, based on a paper delivered to the Irish Legal History Society in 2008, was justified by the inherent quality of the material and by the obvious geographical and cultural links that span the North Channel. This chapter examines the control of slaves in eighteenth-century Scotland despite the absence of any form of detailed legal regulation. Cairns illustrates that although eighteenth-century Scotland was not a slave society it was a society with slaves, mostly acquired from the colonies or slave-owning countries. This chapter shows how the Scottish courts were willing to uphold the demands of slave-owners and also to detain any “strolling negro” with no obvious owner and ship them to the colonies for sale. This grim reality was only ameliorated in 1778 when the Court of Session decided in Knight v Wedderburn that slavery was illegal and that any slave who arrived in Scotland would gain their freedom.
The most obvious target for criticism of this volume as a whole is its disproportionate focus on Irish legal history of the twentieth century. Yet it must be acknowledged that this is an obvious consequence of the calamity described at the start of this review. Peter Crooks’ stark conclusion that “records perish” is exacerbated by his illustration that most Irish state documents were actually destroyed in the years before 1922. These were not obliterated by explosion or fire but by damp and exposed storage conditions. Indifference and neglect have proved far more destructive to Ireland's legal past than fire or war. If this volume assists in restraining these perpetual adversaries the labours of its editors will not have been in vain.
