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An Irish Arms Crisis
The Story so far: As a result of the Mac Carthy Mór hoax it was discovered that arms grants by the Office of the Chief Herald of Ireland from 1943 onwards had been made without proper legal authority. The Chief Herald and the government wrongly considered that the power to grant arms had been inherited with other royal prerogatives after independence in 1922. It is now claimed that there is proper legal authority to grant arms from 2005 at least, but it is conceded that 'doubts exist regarding the legal basis of heraldic functions' before that year. After a hiatus the Office of the Chief Herald is back in the business of selling arms, but there has been no legislation to remedy the unsatisfactory heraldic legislation. In the circumstances which prevail it would probably be better to cease the practice of selling arms.
A quite unexpected effect of the Mac Carthy Mór and allied scandals, detailed elsewhere on this website (see summary article), has been to call in question the legitimacy of grants of arms by the Genealogical Office/Office of the Chief Herald of Ireland. The depth of what could be called this new Irish arms crisis is demonstrated by the fact that new grants of arms were suspended in September 2003, and although resumed in 2005, they were suspended again for a period in 2006-07 (see below). As there appears to be little general awareness of the issues involved, and indeed denial in certain quarters that there is a problem, we will now endeavour to explain the situation.The post of Chief Herald was united with that of Director of the National Library in 1995, but lay vacant for two years following the retirement of Director/Chief Herald Brendan O Donoghue in September 2003. O Donoghue was succeeded as Director by Aongus Ó hAonghusa, who did not also become Chief Herald, and Ó hAonghusa was succeeded as Director in 2010 by Fiona Ross. It is not clear whether the Library Director has direct authority over the Chief Herald's Office, and the Chief Herald is apparently answerable only to the National Library Board. The Department of Arts, Sport and Tourism maintained a degree of direct responsibility until the implementation in May 2005 of the National Cultural Institutions Act 1997, which placed the Genealogical Office/Office of the Chief Herald under the supervision of a new autonomous Board of the National Library of Ireland. Acting with unexpected speed, not to say haste, the new Library Board appointed Mr Fergus Gillespie as new Chief Herald in August 2005. While this move was presented as ending an unfortunate chapter in the history of the Genealogical Office/Office of the Chief Herald, we will show that it actually papers over rather than remedies the administrative and legal problems brought to light by the Mac Carthy Mór and allied scandals. Gillespie was succeeded as Chief Herald by Colette O'Flaherty, who is also Keeper of Manuscripts in the National Library.
The exposure of the MacCarthy Mór hoax in 1999 led to an approach for advice to the Attorney General by the then Library Director/Chief Herald O Donoghue. The following is the gist of the advice provided by the Office of the Attorney General in June 2002:
There is not, and never was [according to the Attorney General], any statutory or legal basis for the practice of granting courtesy recognition as chief of the name; in the absence of an appropriate basis in law, the practice of granting courtesy recognition should not be continued by the Genealogical Office; and even if a sound legal basis for the system existed, it would not be permissible for me [the Chief Herald] to review and reverse decisions made by a previous Chief Herald except in particular situations, for example, where decisions were based on statements or documents which were clearly false or misleading in material respects. (Form letter of Director/Chief Herald O Donoghue notifying recognised chiefs and applicants for recognition that the system of courtesy recognition was being terminated, 28 July 2003, FOI release.)
However, the Attorney General did not stop there, but apparently went on to call in question the entire legal basis of the Genealogical Office/Office of the Chief Herald. In an alarmed internal e-mail sent in the wake of the receipt of the Attorney General's advice in June 2002, Director/Chief Herald O Donoghue stated that he had been 'more or less' told that the Genealogical Office 'is an illegal organisation (!) and should not be granting arms or recognising chiefs', adding, despite the fact that he himself is the recipient of a grant of arms and supporters, 'I'm tempted to agree!' (FOI release). A spokesperson for the Department of Arts, Sport and Tourism has recently attempted to laugh off these comments, on the grounds that they were intended to be 'jocose, informal and tongue-in-cheek', asserting as well that that the Office of the Chief Herald is 'highly regarded', that it is 'not deemed to be in need of restructuring' and that 'there is no doubt that it can grant arms and accept fees' (letter to writer dated 1 July 2004). While the writer was certainly struck by the flippancy of tone of the comments in question, it appears to be a case of half-joking, wholly in earnest, as demonstrated by the above mentioned and decidedly unfunny decision to abandon the system of courtesy recognition of chiefs.
Denials notwithstanding, it is clear that maladministration is the only explanation for the Genealogical Office/Office of the Chief Herald's entanglement with hoaxers and fantasists such as MacCarthy, and the most serious problem the Office now faces is doubt over its legal right to grant arms. It is reasonable to speculate that the Attorney General's thinking in relation to arms grants may be related to the complex and not insignificant legal problem described as 'the expulsion of prerogative doctrine from Irish law', meaning that official actions dependent on pre-1922 British royal prerogatives are deemed invalid. This problem is the subject of an important article by Costello, which points out that the assumption that royal prerogatives were simply inherited by the new government of Ireland after 1922 has been placed in doubt by a series of court judgements, Byrne versus Ireland 1972, Webb versus Ireland 1988 and Geoghegan versus Institute of Chartered Accountants 1995. The grant of armorial bearings is included under the head of these 'lost' prerogatives, and while the Cultural Institutions Act 1997 allocated heraldic functions to the National Library, 'in view of the ban on prerogative-derived powers it is difficult to see from where the power to grant and confirm coats of arms derives' (Kevin Costello, 'The Expulsion of Prerogative Doctrine from Irish Law: Quantifying and Remedying the Loss of the Royal Prerogatives', Irish Jurist, 32, 1997, pages 145-94).
It would be helpful at this point to consider the text of Section 13 of the National Cultural Institutions Act:
13. - (1) For the avoidance of doubt, it is hereby declared that the Genealogical Office is a branch of the Library.
(2) The Board shall, from time to time as occasion requires, designate a member of its staff to perform the duty of researching, granting and confirming coats of arms and such member shall use the appellation Chief Herald of Ireland or, in the Irish language, Príomh-Aralt na hÉireann, while performing such duties.
(3) The Board shall be entitled to any copyright subsisting in coats of arms granted or confirmed under this section.
(4) (a) The Board of the Library shall as soon as may be after the Library establishment day appoint a committee to be known as the Committee on Genealogy and Heraldry (referred to subsequently in this subsection as 'the Committee') to perform such of the functions of the Board, as in the opinion of the Board, may be better or more conveniently performed by it and are assigned to it by the Board.
(b) There may be included in the membership of the Committee such number (not being more than half of the membership of the Committee who are entitled to vote) of persons who are not members of the Board.
(c) The appointment of a person to act as a member of the Committee shall be subject to such conditions as the Board may think fit to impose when making the appointment.
(d) A member of the Committee may be removed from office at any time by the Board.
(e) The acts of the Committee shall be subject to the approval of the Board.
(f) The Director of the National Library and the Chief Herald of Ireland shall be included in the membership of the Committee but shall not be entitled to vote.
(g) The Board may regulate the procedures of the Committee but, subject to any such regulation, the Committee may regulate its own procedure.
While the first clause certainly disposes of the illusion that the Genealogical Office/Office of the Chief Herald is an ancient office of state founded in 1552 and a preserve therefore of detached gentlefolk, it does not entirely resolve the problems caused by the creation in 1943 of what is an unsatisfactory and cumbersome duality. The clause vesting copyright in coats of arms in the Board of the Library is puzzling, as surely if grants of arms are made and fees accepted for same, full ownership should lie with the grantees, and indeed this provision might be deemed to be in conflict with consumer rights. The provision for the establishment of a Committee on Genealogy and Heraldry is in principle a good one, provided that it was to be composed of competent individuals.
Section 12 (2) (c) of the 1997 Act authorises the Board of the National Library 'to facilitate, encourage, assist and promote the granting and confirming of coats of arms', and it has been claimed that taken with Section 13 this provides full statutory power to grant arms. The adjacent section 12 (2) (b) authorises the Library Board 'to facilitate, encourage, assist and promote the carrying out of genealogical research'. It is a commonplace that repositories such as the National Library of Ireland do not carry out genealogical research for users, but merely assist those engaged in the activity. The wording of section 12 (2) (c) again only commits the Library to act in a facilitatory way in relation to the granting and confirming of coats of arms. These are extraordinarily inadequate provisions on which to claim the authority to issue official patents of arms on behalf of the Government of Ireland. It is clear that the 1997 Act merely assumes that the Genealogical Office and in particular the Chief Herald have a prior power of 'researching, granting and confirming coats of arms', and this can only be a prerogative-based power, which as we have seen is of questionable or no legal validity.
'Fanatics and Fantasists'
As might be anticipated, those within the system have been endeavouring to influence developments in the Genealogical Office/Office of the Chief Herald in favour of their interests. Thus on 4 March 2004, Consultant Herald Micheál Ó Comáin (Michael Cummins) made a submission to Acting Library Director Ó hAonghusa (Freedom of Information release). Ó Comáin asserts that the Office of the Chief Herald dates its foundation to 1552, has 'for most of its history since 1943 effectively been autonomous', and despite the associated title of Genealogical Office, 'its work is not directly concerned with popular genealogy', which it is claimed is 'well catered for elsewhere in the National Library'. The National Cultural Institutions Act provisions are dubbed by Ó Comáin 'an instrument of chaos', principally because of the copyright element, which he claims would expose the State to ridicule and threat of legal action. Ó Comáin notes that the idea of an advisory committee was originally that of Chief Herald Begley, 'who envisaged it as a means of increasing the stature of the Office, not as a means of diminishing the authority of the Chief Herald'. Recommending that the section of the act relating to his office should not be implemented, Ó Comáin warns that such an advisory committee could contain unsuitable appointees, noting that 'the people in Ireland with an intimate knowledge of heraldry and related genealogy includes a significant proportion of fanatics and fantasists who tend to be associated with ousted royal houses, spurious titles and bogus orders of chivalry'. It is claimed also that 'the work of professional genealogists in Ireland is seldom concerned with the genealogy of armigers', and that 'much of the knowledge of heraldry and its administration accumulated since 1552 resides with the present officers of arms, unwritten and therefore inaccessible should they cease in the State's service'. Consultant Herald Ó Comáin revealed as well that on the retirement of Chief Herald O Donoghue, the authority of Deputy Chief Herald Gillespie ended, so that 'at present there is nobody with the power to execute a document'.
Mr Ó Comáin's submission in relation to the Genealogical Office/Office of the Chief Herald is in effect an appeal for a return to the status quo ante the Mac Carthy Mór scandal: a detached, unsupervised office claiming command of mysteries unknown to the mass, working for a refined, fee-paying clientele and unconcerned with matters of common genealogy. The present writer finds himself in agreement virtually with only one element of the submission, namely, the comments on copyright, for the reason stated above. Ó Comáin clearly overstates the expertise available within his Office and the lack of knowledge without, and in particular he should be well aware of the present writer's educational efforts in respect of heraldry as well as genealogy. Nowhere does Ó Comáin mention the entanglements with 'fanatics and fantasists' such as Terence MacCarthy, Andrew Davison, the 'Duchess of Braganza' and the 'Duc de Saint Bar', all of which occurred during the tenure of Chief Herald Begley and his then Deputy and now Chief Herald Gillespie, and most of the resulting spurious pedigrees, arms and titles remain uncorrected in the records. The present writer is also a professional genealogist of long experience who is not at all unfamiliar with armigerous families, and particularly in his work relating to Gaelic Chiefs has found and still finds the standards existing in the Office of the Chief Herald to be severely wanting. In short, the writer considers that it would be a grave mistake to allow the Genealogical Office/Office of the Chief Herald to lapse back into its former ways, and its personnel should remain subject to rigorous supervision, particularly those associated with the Mac Carthy Mór and allied scandals.
Micheál Ó Comáin wearing a tabard with arms of the Irish State, at 27th International
Congress of Genealogical and Heraldic Sciences, St Andrews, Scotland, 2006
Documents obtained under the Freedom of Information Act show that the arms problem was taken quite seriously by mandarins in the Department of Arts, Sport and Tourism. Thus a briefing document dated October 2004, prepared for Minister John O'Donoghue in relation to Dáil questions, confirms that 'draft preliminary advice' had been received from the Attorney General indicating that the 'common law powers relating to the grant of all honours and dignities did not survive the enactment of the Constitution'. If this was the final position of the AG, then 'it would be necessary to provide specific powers in legislation' to enable grants of arms. However, it was noted pessimistically that it might 'be difficult in this day and age to justify Government enacting such legislation in a Republic'. The briefing document also reveals that ten finished but unsigned grants of arms were then being held by the Chief Herald's Office, together with the sum of €33,300 paid by clients. It is difficult to understand why the Office of the Chief Herald still accepted fees for commissions during this period, as well as continuing to advertise its heraldic service on the National Library's website and in leaflets available in the Library.
At the request of the Secretary General, a high powered committee of Arts Department mandarins, headed by Liam Fitzgerald, prepared a position paper in November 2004. This brain storming session simply uncovered more likely complications. Appointing a new Chief Herald immediately might clear the backlog of unsigned arms grants, but could compromise the authority of a new National Library board to fill the post when the Cultural Institutions Act was implemented. Furthermore, a new Board might have differing views and many other issues to contend with, and so might 'park' the matter.
Although his title of Deputy Chief Herald was deemed to have lapsed in September 2003, Fergus Gillespie remained in charge of the day to day running of the heraldic office during the hiatus of 2003-05, assisted by consultant herald Ó Comáin, a contract heraldic artist and some assigned Library staff. As might be expected, clients became increasingly concerned about the delay in filling the position of Chief Herald and delivering their grants of arms. Replying to one such client early in 2005, Ó Comáin deflected the blame for delays by pointing to failure to implement the Cultural Institutions Act, adding, 'our political masters move in their own mysterious ways'. Around the same time Gillespie informed an anxious enquirer that new heraldic appointments should be made 'in the next couple of months when the act has been implemented', and reassured him that 'the Office is not in any sort of straits'.
Intelligent observers know of course that there has been a serious crisis in the Genealogical Office/Office of the Chief Herald since the exposure of the Mac Carthy Mór hoax in 1999, if not earlier, and that thought and effort are required to resolve it constructively. Both as it stands and in view of what is now known about the problems associated with prerogative doctrine, Section 13 of the National Cultural Institutions Act provides inadequate statutory basis for the continuation of official grants and confirmations of arms. As indicated, the Minister for Arts, Sport and Tourism has now implemented the act in relation to the National Library and a new Board has been appointed to replace the former Library Trustees. Despite the serious and unresolved legal problems outlined, and criticisms from various quarters, the provisions of Section 13 have been put in effect by the new Library Board through the appointment of a new Chief Herald and a Committee on Genealogy and Heraldry. Ireland is a democratic Republic bound by a written Constitution and laws, and the idea that an Irish office could simply continue the armorial functions of a Crown office without legislative sanction is now seen to be simply mistaken. The present writer has little enthusiasm for official grants of arms in a republic, and certainly questions the wisdom of continuing to advertise the service when the legal validity of the practice in Ireland is in doubt. Although he was himself armigerous, George Washington wisely avoided any implied political sanction of heraldry in the new American Republic, on the grounds that this might give rise to suspicions, however ill-founded, of 'establishing unjustifiable discriminations' (Washington to William Barton, 7 September 1788). Faced with a similar situation in 1943, Eamon de Valera on the advice of Edward MacLysaght decided differently, sanctioning the creation of an Irish heraldic office.
Few republics maintain governmental heraldic offices, but in addition to Ireland those that do include South Africa and reportedly also Zimbabwe. South Africa's heraldic authority was founded under the Apartheid system but maintained after the introduction of majority rule under Mandela and the ANC. Unlike Ireland, the South Africans passed a specific Heraldry Act (Act 18 of 1962), which provided for the establishment in June 1963 of a Bureau of Heraldry headed by a State Herald and overseen by a Heraldry Council. The full text of the South African Heraldry Act is at http://www.national.archives.gov.za/heraldryact.pdf, and see also an article by former State Herald Frederick Brownell at http://freepages.family.rootsweb.com/~heraldry/page_optima.html. It is significant that the South African act provides for making entries relating to coats of arms and other heraldic representations in a specified register, as opposed to grants of same by patent, as has been the practice in England, Scotland and indeed the Republic of Ireland. Registering rather than granting arms could be a viable model for Ireland if an heraldic office is to be revived here.
It would appear that the South African system was (perhaps surprisingly) modelled on the heraldic establishment in Sweden, and drafters of any Irish heraldic legislation would do well to examine the heraldic offices in these countries in particular, and of course further afield as well. It was pointed out to the writer that the office of National Herald was in fact abolished in Sweden in 1953, being replaced by a new post within the National Archives called the State Herald (Statsheraldikern), whose role was limited to the regulation of civic heraldry (posting to rec.heraldry, 12 July 2004). This obviously suggests a similar arrangement for Ireland, whereby the Genealogical Office/Office of the Chief Herald of Ireland would also be abolished, and replaced by a new official within the National Library, to be called the State Herald (An Stát-Aralt), whose functions would include the regulation of civic or institutional heraldry, and preferably also the registration of personal arms and other heraldic devices, the recording of pedigrees and the registration as a courtesy of Gaelic and other titles.
Among those who wish to retrieve a functioning and legally properly established heraldic office in Ireland, opinion is divided over whether it would be better to proceed via a new statute, or via an amendment of Section 13 of the National Cultural Institutions Act. It seems to the present writer that the latter course of action would stand a better chance of success in the Dáil and Seanad, if introduced and explained properly, and here are the elements which I believe should be incorporated in any statutory measure:
1. Amendment of Sections 12 and 13 of the National Cultural Institutions Act 1997.
2. Abolition of the Genealogical Office/Office of the Chief Herald of Ireland.
3. Establishment of an Office of Heraldry and Genealogy within the National Library of Ireland, and of the post of State Herald and Genealogist (Stát Aralt agus Sloinnteoir).
4. Powers and functions of the State Herald and Genealogist, with particular reference to registering arms and other heraldic devices, also pedigrees, and, by courtesy, titles.
5. Establishment of a Committee on Heraldry and Genealogy.
6. Registers and other records of the Office of Heraldry and Genealogy, and provision of services to National Library users.
7. Retrospective recognition of grants and confirmations of arms by the Genealogical Office/Office of the Chief Herald of Ireland after 1943, and recognition of grants and confirmations by Ulster King of Arms prior to 1943, with the exception of entries shown to be based on false information.
8. Penalties for misuse of registered arms and registration of false arms, pedigrees or titles.
While as indicated I personally lack enthusiasm for official grants of arms in a republic, I recognise that the numerous individuals and institutions who have paid substantial sums for Irish armorial grants since 1943 cannot just be left in limbo, and certainly these would be less easy to throw over than the Chiefs whose status was undermined by the termination of courtesy recognition in 2003. What appears to be a powerful impetus for remedial action is provided by a letter of Garter King of Arms in London, dated 19 October 2006, which states that there is doubt as to the validity of a specific 1981 Irish arms grant, citing the above mentioned Attorney General's opinion and Irish Jurist article. The Irish Edition of the Sunday Times published an article on 29 October 2006 dealing with the crisis, under the headline 'Irish coats of arms have no legal basis', while in November opposition party Fine Gael TD Jimmy Deenihan questioned Minister Arts Minister O'Donoghue on the affair in the Dáil.'Shambles of the Past'
The Genealogical Society of Ireland has been to the fore in proposing a legislative remedy, issuing detailed proposals for a Genealogy and Heraldry Bill (website http://www.familyhistory.ie), and in May 2006 a bill drafted by the society was presented as a private member's bill by Senator Brendan Ryan (http://www.oireachtas.ie/viewdoc.asp?DocID=5472&&CatID=59). While broadly supportive of the bill, I am nevertheless inclined to think that it attempts to do too much, and perhaps bestows excessive power on staff whose track record indicates that they need close and constant supervision. The bill was the subject of an interesting debate in the Seanad on 12 December 2006, and with the agreement of the sponsors, was withdrawn and submitted by Minister O'Donoghue to the Board of the National Library of Ireland, with an understanding that it would study the proposed legislation and report back to the Minister (http://debates.oireachtas.ie/DDebate.aspx?F=SEN20061212.xml&Node=H7#H7). It remains to be seen whether the bill emerges intact from this process or expires mysteriously in custody.
We also have online an important new article by Professor Noel Cox, which deals systematically in turn with Irish arms grants 1552-1943, 1943-47, 1997-2005 and in the period since the implementation of Section 13 of the National Cultural Institutions Act 1997 in 2005. Cox observes that Section 13 of the 1997 act states 'that the function of granting arms is to be carried out by a certain officer, but does not actually confer the authority to make grants'. Cox also notes that the 1997 act 'appears to indicate that grants are actually made by the Board of the National Library of Ireland, through its department known as the Genealogical Office, rather than by the Chief Herald of Ireland, as a corporation sole'. Declaring that 'the situation would be amusing if it were not deplorable', Cox advises that 'the easiest solution, in terms of short-term correction of the uncertainty, is an amendment to ss 12 and 13 of the National Cultural Institutions Act 1997'. He goes on to state that 'the Genealogy and Heraldry Bill 2006 should however form the basis for a more comprehensive reform of Irish genealogy and heraldry', concluding that 'few would deny that events surrounding the Genealogical Office in recent years do suggest that there is a need for some fairly radical (but carefully reasoned) reforms'. (Noel Cox, 'The Irish Law of Arms: A Lingering Question of Authority', http://www.reocities.com/noelcoxfiles/Irish_Law_of_Arms.pdf).
Throughout all these debates, the Office of the Chief Herald and its supporters continued to adhere to the untenable position that no serious legal problems existed concerning its power to grant of arms. Somewhat cavalierly, the Office in late 2006 amended its pages on the National Library website so that its terms were altered from granting arms as 'a form of property' to merely providing 'a licence to use the arms' (http://www.nli.ie/new_office.htm). It is unlikely that older arms grants could be claimed to be governed by these new terms, which perhaps vindicate a criticism of, of all people, Terence MacCarthy: 'One no more "petitions" the Chief Herald for a grant of arms than one "petitions" the local police station for a licence to keep a dog!' (Ulster's Office, page 235). The Committee on Genealogy and Heraldry appointed in 2005 has been criticised for its unrepresentative nature, and the writer at present has no information whatever on its views or role in the arms crisis (although some of its members have gone on the record with robust criticisms of myself). Increased respect for legal niceties was perhaps indicated by the termination in 2006 of the arrangement whereby the Association of Professional Genealogists in Ireland had a monopoly on genealogical consultancy work for the National Library (the writer was able to tender for such work until 1999).
Of course, the pretence that all was well in Irish heraldry could not be maintained indefinitely, particularly in view of the number and calibre of external critics, and for a time in 2007 the following notice appeared on the Chief Herald's section of the National Library website:
Making an application for a Grant of Arms
We are currently unable to process applications for Grants of Arms pending the clarification of the legal powers of the Board of the National Library in relation to the issuing of Grants of Arms.'
(http://www.nli.ie/en/applying-for-a-grant-of-arms.aspx, notice removed about 24 October 2007)
The Chairperson of the Board of the National Library, Gerard Danaher SC, issued a statement on 24 October 2007 (http://www.nli.ie/en/list/press-releases.aspx) stating that advice had been received from the Attorney General to the effect that 'on a proper construction of the National Cultural Institutions Act 1997, the Board can exercise the heraldic powers provided for in the Act'. Therefore the Board 'is satisfied that it can exercise the heraldic powers conferred on it by the 1997 Act and has, accordingly, lifted its temporary suspension on doing so'. The Board has also been advised that 'the wording of the Act could be made more succinct' and has brought this advice to the Minister for Arts, Sport and Tourism. The Board also concedes that 'doubts exist regarding the legal basis of heraldic functions' exercised prior to its establishment in 2005, but considers that this is a matter for the State to address.
Unfortunately Mr Danaher's statement does not appear to deal with the following key criticisms by legal experts as quoted above:
While the Cultural Institutions Act 1997 allocates heraldic functions to the National Library, 'in view of the ban on prerogative-derived powers it is difficulty to see from where the power to grant and confirm coats of arms derives' (Kevin Costello 1997).
Section 13 of the Cultural Institutions Act 1997 states that 'the function of granting arms is to be carried out by a certain officer, but does not actually confer the authority to make grants' (Professor Noel Cox 2007).
Furthermore, documents released under the Freedom of Information Acts show that the Board of the National Library was at first inclined to proceed cautiously, noting at a meeting on 8 October 2007 that it was 'reluctant to authorise the Chief Herald to resume the processing of grants of arms which has been suspended for some eight months'. Yet the following week on 17 October Chairperson Danaher was writing that he wished to put 'clear blue water between ourselves and the present/future on the one hand and, on the other, the Department and the shambles of the past'. This then was the context in which the Board of the National Library agreed to restore arms grants, leaving it to the Department of Arts to sort out the 'shambles' of the past. This is hardly a prudent or satisfactory manner of proceeding, and the National Library cannot just wish itself free of the burden of its past mistakes, be it the disgraceful recognition of Terence MacCarthy and other bogus Gaelic chiefs and title claimants, or continuing to make arms grants without sufficient legal authority.
It needs to be repeated that the problem with the National Cultural Institutions Act is not want of succinctness, but of adequate content. At a minimum an amendment to the act is required, and in an ideal world there should be a new act encompassing various aspects of genealogy as well as heraldry. Its first amending bill having as expected 'died in custody', the Genealogical Society of Ireland has made a second attempt to regularise the Irish heraldic situation, and a new private member's bill has been introduced in the Seanad, sponsored by Labour Senator Alex White: http://www.oireachtas.ie/viewdoc.asp?DocID=10698&&CatID=59&StartDate=01%20January%202008&OrderAscending=0
The 'Celtic Tiger' era has ended with a crash leaving Ireland in severe economic recession whose depth and probable duration is probably still not fully realised. Among government plans to save money is a proposal to amalgamate the National Library and the National Archives, which must impact on the future of the Office of the Chief Herald. In a reply to a Dáil question 17 June 2009, Arts Minister Martin Cullen stated:As my Department is preparing legislation which will amend the National Cultural Institutions Act, 1997 to give effect to the merger of the National Archives, the National Library of Ireland, and the Irish Manuscripts Commission it will also consider a specific amendment in relation to the arms granted during the period referred to by the Deputy. (http://www.kildarestreet.com/wrans/?id=2009-06-17.1339.0)
The MacCarthy Report ('An Bord Snip Nua') published in July 2009 recommends a series of swingeing cuts directed mostly at health, social welfare and education. The Genealogical Office/Office of the Chief Herald of Ireland is too much small beer to be specifically mentioned for axing, but the present writer would not think it just if such a compromised and flawed entity should survive when other more deserving cultural bodies go to the wall. Chief Herald Fergus Gillespie retired in late 2009 and the following notice was placed on the National Library website:
The Office of the Chief Herald is currently not accepting new applications for grants or confirmations or [recte of] arms owing to the retirement of the Chief Herald. The application process will resume when a new appointment has been made.
In 2010 Colette O'Flaherty was appointed as Chief Herald and Keeper of Manuscripts, and about June of that year the above notice was removed and sales of arms were again resumed. Access to Genealogical Office Manuscripts was withdrawn suddenly in early October 2010 as a result of 'refurbishment' work, and a notice specified that material would be 'inaccessible to staff and readers'. On 31 January 2011 the RTE programme 'Nationwide' featured an interview with Micheál Ó Comáin on the work of the Office of the Chief Herald, in the course of which GO manuscripts were on clear display. Public access to GO manuscripts was restored in 2011, but abruptly in March 2012 the oldest records in the series (MSS 1-188) were withdrawn again, this time on 'conservation' grounds. The writer would have no trouble accepting the withdrawal from all use of genuinely fragile items, but knows that the most of the withdrawn volumes are actually quite robust. For some time now the matter of access to GO manuscripts has been bedevilled by inconsistent and partial rules, a matter of great inconvenience to a scholar and educationalist such as myself, and no doubt to others who do not enjoy privileged entry.
The Last Word?
In Autumn 2011 an article was published in the Heraldry Society of Scotland's journal, The Double Tressure, volume 34, issued only to members, which article according to its modest author, Joseph McMillan, a member of the American Heraldry Society, means that 'nothing remains to be said' concerning the 'Irish Arms Crisis' (thread on rec.heraldry, July 2012). A request to the Secretary of the HSS for a copy of the journal was not acknowledged, but the author has now kindly furnished the present writer with a copy of the article in question, entitled 'Legal Authority for Irish Arms'. McMillan deems the present writer's modest article worthy of only three citations, one a duplication, but in the text he declaims that 'the much ballyhooed "Irish arms crisis" is a chimera; the operations of the Office of the Chief Herald of Ireland have always been legitimate' (page 60). The term 'legitimate' could hardly be applied to those transactions in which the Office of the Chief Herald traded in bogus and questionable pedigrees, arms and titles during the Mac Carthy Mór period (corruptly I believe), and paceMcMillan, it is the case that all arms grants from 1943 to 2005 at least, and possibly even after that, are without proper legal basis. While the following utterance of Chief Herald Fergus Gillespie is quoted approvingly by McMillan, it merely serves to indicate arrogance and indifference to well merited concerns about the office's status and past activities: 'What international heraldists, the College of Arms or any other body may or may not believe is immaterial to the functioning of this office' (page 61). McMillan's piece is furnished with copious references to legal cases such as Byrne versus Ireland and Webb versus Ireland, all of which in fact tend to show that the Irish prerogatives problem is a real one which has yet to be fully resolved. McMillan attempts to grapple with Cox's above mentioned legally informed work on the problems of Irish heraldry, not at all successfully in the present writer's opinion, but interested readers should review both authors for themselves.
McMillan makes the point that if in fact prerogative-based powers had not been inherited by the new Irish State in 1922, then such extra-statutory functions as issuing passports would be invalid (pages 46-47). It would appear to be the case that Irish passports were issued without full statutory support until the Passports Act 2008, which contains a clause retrospectively validating documents issued before its passage (section 27/1). It would not be unreasonable to suggest that this act could be considered part of the process whereby archaic laws and indeed prerogatives from the period of British rule are being replaced by domestic legislation, properly debated and passed by the legislature, as would be expected under a democratic republican form of government. Fraudulent use of Irish travel documentation, such as US Col Oliver North's deployment of a forged Irish passport in 1986, probably also played a part in inspiring the legislation (alas this particular problem of passport fraud has continued and the act may need to be tightened up or indeed properly enforced). Of course the issuing of passports is a crucial function of any state, indeed an 'incident of sovereignty', but what of heraldry itself and should new Irish legislation with a retrospective armorial validation clause be drawn up? As noted above, the great George Washington, at a time when he must have been considering the scope of republican government after the expulsion of the British from the American colonies, indicated in 1788 that while he was well disposed towards the subject he did not consider it politically opportune to promote heraldry. Would that Eamon de Valera had followed Washington's example in Ireland. McMillan concludes his article with a rather strained argument to the effect that establishing an heraldic office in 1943 represented the 'full recovery' of Irish sovereignty, going on to accuse critics of the Office of the Chief Herald of Ireland of exhibiting 'an American constitutional sensibility' (pages 61-63). Well excuse me! Of course granting arms is by no means a vital administrative function in a modern republic and heraldry ought to be be treated as a cultural and private matter in Ireland as it is in most countries, albeit one which should carry a health warning in view of episodes such as the Mac Carthy Mór hoax.
There is of course a much broader picture to be considered, involving reassertion of genealogical and heraldic standards in the wake of the Mac Carthy Mór hoax, improving training structures and enhancing facilities for research. The certificate of recognition given to the hoaxer Terence MacCarthy by Chief Herald Begley and his then acting deputy, Fergus Gillespie, in 1992 is but the tip of an iceberg, and other cases dealt with on this website, such as Maguire of Fermanagh, Andrew Davison, Duc de St Bar, Duchess of Braganza and feudal titles (see various reports), demonstrate how the Office had become in effect a brokerage house trading in spurious arms, pedigrees and titles, most of which remain uncorrected in its records. The appointment as Chief Herald in 2005 of one who was so closely associated with validating Terence MacCarthy's spurious claims could not be said to have augured well for the future, and had the effect of evading necessary measures of reform. There is no escaping the fact that past Irish arms grants are of doubtful or no legal value, and the continuation of the practice of granting arms after the receipt of the Attorney General's opinion in 2002 was ultra vires, not to say irresponsible. In the writer's view the practice of selling arms should be discontinued in the light of the various scandals which have tainted the reputation of the Chief Herald's Office. There remains a pressing need for an official enquiry into the administration of the Genealogical Office/Office of the Chief Herald, with particular reference to the irregularities outlined in the present article and elsewhere on this website, as well as in the author's book, Twilight of the Chiefs: The Mac Carthy Mór Hoax (Bethesda, Maryland, 2004).
Given the importance of the subjects, I continue to press for the creation within the National Library of Ireland of a proper Department of Heraldry and Genealogy, perhaps allied with Local Studies (short title 'Family & Place'?). This new department would replace the discredited Genealogical Office/Office of the Chief Herald, and should incorporate a largely self-service dedicated research facility. In an article in Irish Roots, 1996, Number 3, then National Library Director and Chief Herald Dr Patricia Donlon wrote that her long-term plans encompassed 'a dedicated, open-access Genealogical Reference Centre to be housed in the refurbished extension to the National Library into the former National College of Arts and Design premises'. No such plan has been implemented by Donlon's successors, who have had the advantage of much more generous state funding during the years of the 'Celtic Tiger' (a staggering €15.5 million of public funds has been expended on the National Library's acquisition of Joyce manuscripts alone). It is recommended that the Board of the National Library should take another look at Dr Donlon's plan, but any such new genealogical research facility should be supervised by properly trained Library staff, with extern consultants appointed following a tendering process and with specified auxiliary duties. Finally, as an experienced genealogical and heraldic educator, the undersigned is ready to resume work helping to train National Library staff, but understands that in view of his role as a 'whistle blower' exposing maladministration in the Genealogical Office/Office of the Chief Herald, and particularly the Mac Carthy Mór Hoax, his contributions will have to made from without indefinitely, and perhaps permanently. Meanwhile, the officials who provided MacCarthy and other bogus chiefs with documentation in effect validating hoaxes have gone unpunished into well-pensioned retirement and have been succeeded by their uncritical juniors. Such, as they say, is life.
Sean J Murphy
Centre for Irish Genealogical and Historical Studies
Commenced 21 June 2004, last amended 25 February 2013