Premise<\/em><\/strong><\/p>\n\n\n\nTen years ago there commenced the\nremarkable court case MacCarthy versus Horak, a key episode in the Mac Carthy M\u00f3r\naffair. It will be recalled that since the 1980s Terence MacCarthy of Belfast had lain claim\nto the chiefship of the MacCarthys of Munster, and in 1992 was recognised as Mac Carthy\nM\u00f3r via a certificate bearing the signatures of both the then Chief Herald of Ireland and his\nthen acting deputy (see illustration above). Yet despite this approval by Irish state officials\nthere were increasing questions concerning MacCarthy's title and royal ancestry, and by\n1997 a rival claimant had appeared, in the person of Barry Trant McCarthy of Wiltshire. For\nreasons which will be explained, Terence MacCarthy chose Casale Monferrato, a\nmoderately sized city or town in Piedmont, north-west Italy, as the place in which to have\nrecourse to law in an effort to allay emerging doubts about his status and to silence\ndetractors.<\/p>\n\n\n\n
The decision to take a legal case was stated to have been provoked by one Dr\nMarco Horak, who, it was alleged, had both publicly and privately denied firstly\nMacCarthy\u2019s right to bear the more elaborate coat of arms of the \u2018E\u00f3ghanacht Royal\nHouse of Munster\u2019, as opposed to the version registered by the Chief Herald of Ireland,\nand secondly that he could bestow feudal titles without the consent of the Chief Herald of\n\nIreland. On 15 July 1997 it was stated that MacCarthy wrote to Horak, warning him to\ndesist from making such claims, which warning was claimed to have gone unheeded.<\/em><\/strong><\/p>\n\n\n\n
Italy\nis a republic, and while its constitution does not recognise titles, it has been claimed that\nits legal system nonetheless provides a method for the trial of issues relating to coats of\narms, taking account of pedigrees, titles and orders as well. However anomalous it might\nseem, it would appear that a mechanism (Lodo Arbitrale) was available to establish in\nCasale Monferrato an Arbitral Court of Peers, whose members were required to be of\nsuitable rank and qualification. This civil court of arbitration was intended to hear matters in\ndispute between parties, and to render a judgment which would be binding on both.\nMacCarthy and Horak agreed to bring their dispute before this court, and the case\ncommenced on 4 December 1997.<\/p>\n\n\n\n
<\/em><\/strong><\/p>\n\n\n\n
Marco Horak was described as a member of the Union\nof Nobility of Italy, a Knight of the Constantinian Order of Saint George, an expert scholar\nand author of numerous works on heraldry, genealogy and nobiliary rights. MacCarthy and\nHorak agreed to the appointment of three judges, all of noble status, namely, Dr Roberto\nMessina, again a Constantinian Knight and expert scholar, who presided, together with the\nMarchioness Dr Bianca Maria Rusconi, a Constantinian Dame and expert scholar, and Dr\nRiccardo Pinotti, a Constantinian Knight, official of the Republic of San Marino, and of\ncourse expert scholar. It is notable that the judges and the defendant were associates of\nDr Pier Felice degli Uberti, sometimes styled Count of Cavagli\u00e0, Chairman of the\nInternational Commission for Orders of Chivalry, and indeed Dr Pinotti was his father-in-\nlaw. The International Commission had been established at the Fifth International\nCongress of Genealogical and Heraldic Sciences at Stockholm in 1960, and was chaired\nfor many years by the Scottish chief, heraldist and nobiliary law expert Lieutenant Colonel\nRobert Gayre of Gayre and Nigg. Gayre had aroused considerable opposition by having\nthe Commission recognise the revived Order of St Lazarus, and the body thereafter\nbecame heavily Lazarite in composition. Through the Secretary General of the\nCommission, Lieutenant Colonel Patrick O\u2019Kelly de Conejera, Terence MacCarthy became\nacquainted with Gayre and in 1984 succeeded in having his controversial Niadh Nask\norder added to the register. More than that, after Gayre\u2019s death MacCarthy came to\ndominate the Commission, so that by 1998 he was President, with O\u2019Kelly de Conejera\nVice-President, degli Uberti Chairman, Charles McKerrell of Hillhouse Deputy Chairman,\nand Dr Maria Loredana Pinotti Secretary General. It is clear therefore that Casale\nMonferrato was chosen as the location for the trial of the case largely as a result of\nTerence MacCarthy\u2019s International Commission connections.<\/p>\n\n\n\n
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The first verdict<\/em><\/strong><\/p>\n\n\n\n The Arbitral\nCourt reportedly convened at Casale Monferrato on 9 December 1997 in order to consider\nthe pleas and evidences of both parties. The plaintiff MacCarthy produced a massive\nquantity of documentation in support of his case, which totalled some 2,500 pages and\nincluded the following: <\/em><\/p>\n\n\n\n
certificate recognising MacCarthy as Mac Carthy M\u00f3r, dated 28\nJanuary 1992, signed both by Chief Herald Donal F Begley and his then acting deputy\nFergus Gillespie; a copy of MacCarthy\u2019s Irish passport in which he was described as \u2018The\nMacCarthy M\u00f3r, Prince of Desmond\u2019; a letter from the Standing Council of Irish Chiefs and\nChieftains confirming that MacCarthy had been a member since its \u2018reconstitution\u2019 in 1991;\na certificate issued 19 April 1993 by Cashel Urban District Council confirming that it had\ngranted a civic reception to MacCarthy; a copy of the manuscript Genealogie de la Royale et Serenissime Maison de MacCarthy; extracts from Who\u2019s Who in Ireland and Debrett\u2019s\nPeople of Today; copies of Chief Herald Begley\u2019s letters of 18 June and 3 November 1988\nconfirming there was no objection to MacCarthy\u2019s disposal of titles; the whole completed\nwith copies of publications by MacCarthy and his partner Andrew Davison, \u2018Count of\nClandermond\u2019, and some other miscellaneous published material.<\/em><\/p>\n\n\n\nThe Court commenced\nits review of the evidence by considering sections 1 and 2 of Article 40.2 of the Irish\nConstitution, which declare respectively, \u2018Titles of nobility shall not be conferred by the\nState\u2019, and \u2018No title of nobility or of honour may be accepted by any citizen except with the\nprior approval of the government\u2019. It was noted that while the Republic of Ireland had\nchosen to recognise the existence of Gaelic Royal Houses, under international law a\nsuccessor state had no right to alter the status of heads of non-ruling royal houses. It\nappeared to the Court that lordships of the Kingdom of Desmond were listed in a St Leger\nTract of 1588 and in the Genealogie de MacCarthy Manuscript. The Mac Carthy M\u00f3r\u2019s\n\u2018prerogatives over those feudal lordships\u2019 had been recognised by the Chief Herald in his\nletter of 16 June 1988. Furthermore, such titles were a form of \u2018incorporeal property\u2019, and\nArticle 40.3.2 of the Irish Constitution guaranteed citizens full enjoyment of their property.<\/em><\/p>\n\n\n\n The Chief Herald in his letter of 16 June 1988 had conceded that Mac Carthy M\u00f3r had\n\u2018under our Constitution . . . the right to beneficial disposal of such property\u2019. The Court then\nturned to consider the arms claimed by MacCarthy, briefly reviewing firstly the history of\nheraldry in Ireland and the Anglo-Norman and Gaelic traditions thereof. It was noted that\nwhile as in the case of other Gaelic ruling families the MacCarthys had only adopted \u2018true\nheraldry\u2019 in the sixteenth century, the main device of a Red Stag had been associated with\nthe E\u00f3ghanacht Monarchy for centuries. The arms of Donal Mac Carthy M\u00f3r, Earl of\nClancare, were recorded in their basic form as \u2018Argent, a stag trippant gules, unguled and\narmed or\u2019(meaning, \u2018on a silver shield a red stag hooved and antlered gold\u2019), which was\nthe form of the arms registered by the Chief Herald. However, there was stated to be\nevidence from other sources, and particularly from folio 99 of the Genealogie de\nMacCarthy Manuscript, that the shield should be \u2018surmounted by the ancient five pointed\ngold crown of the Kingdom of Desmond, surrounded by a Niadh Nask Collar, and\nsupported by two Angels\u2019, with the motto L\u00e1mh L\u00e1idir Ab\u00fa (\u2018Strong Arm Forever\u2019). Leading\nbranches of the MacCarthys in exile in France had borne this more elaborate version of\nthe arms, and the current Mac Carthy M\u00f3r was therefore following the example of his\npredecessors in displaying these arms.<\/em><\/p>\n\n\n\nThe Court further examined the question of the\nsovereignty which can be exercised by a deposed prince. While the rights of commanding\nand enforcing obedience may be limited, the Fons Honorum or prerogative of bestowing\ntitles is maintained complete and may be transmitted to successors. In the case under\nexamination, the Court observed that although \u2018deprived of the exercise of effective\nauthority over those territories once included within the Kingdoms of Munster and\nDesmond\u2019, the Mac Carthy M\u00f3r enjoyed within his clan \u2018what could be considered to be a\nnon territorial sovereignty over more than half a million people dispersed throughout the\nworld who bear his surname\u2019.<\/em><\/p>\n\n\n\nThe judges Messina, Rusconi and Pinotti arrived at a verdict\non 19 December 1997, which was in favour of the plaintiff MacCarthy and against the\ndefendant Dr Marco Horak. The Court declared that MacCarthy was entitled to bear his\nvarious titles, to exercise the prerogative of Fons Honorum, to dispose according to his\n\nown wishes of those Gaelic feudal lordships vested in the E\u00f3ghanacht Royal House of\nMunster, and to bear the full coat of arms of the said Royal House. In view of the \u2018special\nnature\u2019 of the case and the \u2018free services\u2019 of the judges, it was ruled that the expenses of\nthe trial were considered paid. On 20 December, the verdict or \u2018arbitration ruling\u2019 was filed\nin the Records Office of the Magistrate Court of Casale Monferrato, and on 12 January\n1998 the said Court declared the arbitration to be final and conferred on it the legal effect\nof a judgment.<\/p>\n\n\n\n
The second verdict<\/em><\/strong><\/p>\n\n\n\n This was not the end of the proceedings, for the\nArbitral Court at Casale Monferrato had deferred consideration of other differences\nbetween MacCarthy and Dr Marco Horak until the following year. On 22 June 1998 the\nCourt, presided over by the same judges Messina, Rusconi and Pinotti, was stated to have\nconvened again to adjudicate in the matter of the right of Mac Carthy M\u00f3r to surmount the\ncoat of arms of the Niadh Nask or Military Order of the Golden Chain with the ancient\nCrown of Munster. Horak was alleged to have stated on many occasions that there was no\nhistorical evidence of the existence in Gaelic Ireland of knighthood or the Niadh Nask\nitself, and that MacCarthy\u2019s conferral of such an Order was therefore illicit. It was stated\nthat on 30 August 1997 MacCarthy had written to Horak warning him to desist from these\nallegations, but without effect.<\/em><\/p>\n\n\n\n Again the plaintiff MacCarthy produced to the Court\nvoluminous evidences in support of his case, including the verdict of 19 December 1997;\nthe Chief Herald\u2019s certificate of 28 January 1992; the Genealogie de MacCarthy\nManuscript; the plaintiff\u2019s Irish passport; the letter from the Standing Council of Irish Chiefs\nand Chieftains; the 1996 edition of the Register of the International Commission for Orders\nof Chivalry listing the Niadh Nask; South African letters patent dated 23 March 1983\nrecording the arms of the Niadh Nask; documentation recognising the name and arms of\nthe Niadh Nask issued by government agencies in Canada and the United States of\nAmerica; and various publications by MacCarthy, the \u2018Count of Clandermond\u2019 and others.<\/em><\/p>\n\n\n\nThe Court commenced by considering whether there was historical evidence for the\nexistence of knighthood in Gaelic Ireland before the Anglo-Norman invasion of 1169. It\nwas noted that both Selden and Froissart had stated that the Gaelic Irish had their own\ndistinctive forms of knighthood, and that the defendant\u2019s assertion to the contrary was\nbased on ignorance. In relation to historical evidence for the existence of the Niadh Nask,\nthe Court referred to sources cited in a work submitted by the plaintiff. Among the sources\nand authorities cited were the Annals of Clonmacnoise, Geoffrey Keating, Comte O\u2019Kelly\nd\u2019Aghrim, Canon U J Burke, P W Joyce, whose combined weight allegedly proved that\nthere existed an ancient Irish order called the Niadh Nask or Knights of the Golden Collar.\nThough it was indicated that the reputed founder of the Niadh Nask, King Muinheamhoin,\nwho reigned about 691 BC, was mythical, the 88 recorded unbroken generations of\ndescent between him and the plaintiff Mac Carthy M\u00f3r were noted by the Court.<\/p>\n\n\n\n
The Court\nthen moved to consider a matter which was apparently not germane to the issues before it,\nbut which clearly must have been inspired by the recent claim to the title of Mac Carthy\nM\u00f3r lodged by Barry Trant McCarthy. This was presented as the \u2018hypothetical\u2019 case of a\nsuccession dispute between an incumbent Mac Carthy M\u00f3r holding his title by Tanistry,\nand a \u2018Pretender\u2019 claiming the same title by right of primogeniture. Such a rival claim, it\nwas asserted, could not be heard in any court, since Mac Carthy M\u00f3r was \u2018not answerable\nin such a matter to any jurisdiction whatsoever other, possibly, than his own Derbfine, or\n\nCouncil of the Princes of the Blood\u2019. If such an hypothetical Pretender sought recognition\nfrom a successor state, \u2018the legal consequences of such an act would amount to treason\nagainst his own dynasty\u2019.<\/em><\/p>\n\n\n\nFurthermore, it was pointed out that the legal code of the\nRepublic of Ireland was based on English Common Law, under which all Gaelic titles had\nbeen abolished. The Chief Herald\u2019s \u2018administrative procedure\u2019 of granting \u2018courtesy\nrecognition\u2019 to bearers of Gaelic titles was \u2018questionable if not actually illegal\u2019, and certainly\ngave him no legal authority to \u2018annul their laws of succession\u2019. Accordingly, the Court held\n\u2018that the only valid laws governing the descent of the chiefship of the E\u00f3ghanacht Royal\nHouse of Mac Carthy Mor, with the Hereditary Headship of the Niadh Nask therein vested,\nare the Brehon Laws of Tanistry\u2019.<\/p>\n\n\n\n
The Court then conducted an historical review of the\ndescent of the E\u00f3ghanacht Crowns of Munster and Desmond, proving to its own\nsatisfaction that the Brehon Laws of Tanistry and not primogeniture had been the operative\nmode of succession. After these digressions, the Court returned to the main matter in\nhand, the Niadh Nask. The Court concluded from the evidence presented that such an\norder had existed from the remote past without interruption, and stated that it lay within the\nFons Honorum of the plaintiff MacCarthy \u2018to bestow the Niadh Nask as a dynastic honour\u2019.\nThe Court also noted that the Niadh Nask had been recognised as \u2018an armigerous body\ncorporate\u2019 in the jurisdictions of South Africa, Canada and the United States of America.\nAccordingly, on 19 June 1998 the judges Messina, Rusconi and Pinotti rejected the plea of\nthe Defendant Horak and once again upheld the complaints of the Plaintiff MacCarthy,\ndeclaring that the Niadh Nask \u2018must be considered in international law as a dynastic\nhonour of the Royal House of Munster\u2019, that the Republic of Ireland had \u2018no jurisdiction in\nany matter determined by Brehon Law\u2019, and that the plaintiff as chief of the E\u00f3ghanacht\nRoyal House had the right to use the arms of the Niadh Nask, \u2018surmounted by the Ancient\nRoyal Crown of Munster\u2019. As in the first trial, the costs of the suit were waived. It is not\nclear whether the second verdict was filed in the Records Office of the Magistrate Court of\nCasale Monferrato like the first.<\/p>\n\n\n\n
Horak does not appear to have submitted documentation\nas detailed as MacCarthy\u2019s, and all in all seems to have been a rather docile or perhaps\ncowed defendant throughout the proceedings in both trials. There is no sign of vigorous\nquestioning of MacCarthy\u2019s evidence on the part of Horak, and in general the field was left\nclear for the plaintiff effectively to dictate the verdicts.<\/p>\n\n\n\n
Aftermath<\/em><\/strong><\/p>\n\n\n\nSupporters of MacCarthy\nwere keen to promulgate the Italian verdicts in his favour, and in November 1998 issued a\npublished account under the title A New Book of Rights (Clonmel, County Tipperary,\n1998), which contained the text of the legal proceedings and verdicts translated from\nItalian to English, together with several essays containing historical and legal commentary.\nPeter Berresford Ellis contributed an introduction, in his capacity as \u2018Historian to the Royal\nHouse of Munster\u2019, wherein he insisted again that succession to Gaelic titles must be by\nBrehon Law. In particular, Ellis claimed that the Casale Monferrato judgements meant that\nthe primacy of Brehon Law in this regard was now recognised under international law.\nJohn Michael Johnson, an American military judge and a Niadh Nask, described the first\nverdict in favour of Terence MacCarthy as \u2018a model of analytical clarity\u2019, and the second\nverdict as consolidating \u2018the historical, genealogical and legal framework which underpins\nthe Niadh Nask\u2019.<\/p>\n\n\n\n
Captain Mitchell Lee Lathrop, described as Attorney General of the Niadh\nNask, hailed the court decisions as representing \u2018a milestone in clarifying and harmonising\n\ndifferent legal concepts based upon different bodies of law\u2019. David Victor Brooks,\ndescribed as Legal Counsel to Mac Carthy M\u00f3r and again a Niadh Nask, rounded on \u2018a\nsmall, ill-informed Anglophile and Hibernophobic, Internet-addicted clique of self-acclaimed\nexperts\u2019 who had attempted \u2018to denigrate the historical status of Irish princes\u2019. The work\nconcluded with an English translation and the text in Spanish of a certificate of arms\nissued to MacCarthy on 8 December 1997 by the Marqu\u00e9s de la Floresta, Cronista de\nArmas de Castilla y Le\u00f3n, which specifically cited documents validating his pedigree\nissued by Chief Heralds of Ireland. This was preceded by purported observations of one of\nthe Casale Monferrato judges, Dr Rusconi, who following comment on the supposed\nSpanish origins of the E\u00f3ghanacht Royal House of Munster via Milesian descent, allegedly\ndeclared that the Cronista\u2019s certificate constituted a formal act by which the Crown of\nSpain, through a certificate issued by a delegated officer, had \u2018recognised the fact that The\nMac Carthy M\u00f3r, Prince of Desmond, is the Chief of his Name and Arms and Head of his\nRoyal House, and possessed of the power of Fons Honorum\u2019.<\/p>\n\n\n
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