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MacCarthy Versus Horak 1997-98
Certificate recognising Terence MacCarthy as a Gaelic chief, signed by the then Chief Herald of Ireland
and his acting deputy, issued 1992, entered in evidence in MacCarthy versus Horak 1997-98 and nullified 1999
Ten years ago there commenced the remarkable court case MacCarthy versus Horak, a key episode in the Mac Carthy Mór affair. It will be recalled that since the 1980s Terence MacCarthy of Belfast had lain claim to the chiefship of the MacCarthys of Munster, and in 1992 was recognised as Mac Carthy Mór via a certificate bearing the signatures of both the then Chief Herald of Ireland and his then acting deputy (see illustration above). Yet despite this approval by Irish state officials there were increasing questions concerning MacCarthy's title and royal ancestry, and by 1997 a rival claimant had appeared, in the person of Barry Trant McCarthy of Wiltshire. For reasons which will be explained, Terence MacCarthy chose Casale Monferrato, a moderately sized city or town in Piedmont, north-west Italy, as the place in which to have recourse to law in an effort to allay emerging doubts about his status and to silence detractors.
The decision to take a legal case was stated to have been provoked by one Dr Marco Horak, who, it was alleged, had both publicly and privately denied firstly MacCarthy’s right to bear the more elaborate coat of arms of the ‘Eóghanacht Royal House of Munster’, as opposed to the version registered by the Chief Herald of Ireland, and secondly that he could bestow feudal titles without the consent of the Chief Herald of Ireland. On 15 July 1997 it was stated that MacCarthy wrote to Horak, warning him to desist from making such claims, which warning was claimed to have gone unheeded.
Italy is a republic, and while its constitution does not recognise titles, it has been claimed that its legal system nonetheless provides a method for the trial of issues relating to coats of arms, taking account of pedigrees, titles and orders as well. However anomalous it might seem, it would appear that a mechanism (Lodo Arbitrale) was available to establish in Casale Monferrato an Arbitral Court of Peers, whose members were required to be of suitable rank and qualification. This civil court of arbitration was intended to hear matters in dispute between parties, and to render a judgment which would be binding on both. MacCarthy and Horak agreed to bring their dispute before this court, and the case commenced on 4 December 1997.
Marco Horak was described as a member of the Union of Nobility of Italy, a Knight of the Constantinian Order of Saint George, an expert scholar and author of numerous works on heraldry, genealogy and nobiliary rights. MacCarthy and Horak agreed to the appointment of three judges, all of noble status, namely, Dr Roberto Messina, again a Constantinian Knight and expert scholar, who presided, together with the Marchioness Dr Bianca Maria Rusconi, a Constantinian Dame and expert scholar, and Dr Riccardo Pinotti, a Constantinian Knight, official of the Republic of San Marino, and of course expert scholar.
It is notable that the judges and the defendant were associates of Dr Pier Felice degli Uberti, sometimes styled Count of Cavaglià, Chairman of the International Commission for Orders of Chivalry, and indeed Dr Pinotti was his father-in-law. The International Commission had been established at the Fifth International Congress of Genealogical and Heraldic Sciences at Stockholm in 1960, and was chaired for many years by the Scottish chief, heraldist and nobiliary law expert Lieutenant Colonel Robert Gayre of Gayre and Nigg. Gayre had aroused considerable opposition by having the Commission recognise the revived Order of St Lazarus, and the body thereafter became heavily Lazarite in composition. Through the Secretary General of the Commission, Lieutenant Colonel Patrick O’Kelly de Conejera, Terence MacCarthy became acquainted with Gayre and in 1984 succeeded in having his controversial Niadh Nask order added to the register. More than that, after Gayre’s death MacCarthy came to dominate the Commission, so that by 1998 he was President, with O’Kelly de Conejera Vice-President, degli Uberti Chairman, Charles McKerrell of Hillhouse Deputy Chairman, and Dr Maria Loredana Pinotti Secretary General. It is clear therefore that Casale Monferrato was chosen as the location for the trial of the case largely as a result of Terence MacCarthy’s International Commission connections.
The First Verdict
The Arbitral Court reportedly convened at Casale Monferrato on 9 December 1997 in order to consider the pleas and evidences of both parties. The plaintiff MacCarthy produced a massive quantity of documentation in support of his case, which totalled some 2,500 pages and included the following: certificate recognising MacCarthy as Mac Carthy Mór, dated 28 January 1992, signed both by Chief Herald Donal F Begley and his then acting deputy Fergus Gillespie; a copy of MacCarthy’s Irish passport in which he was described as ‘The MacCarthy Mór, Prince of Desmond’; a letter from the Standing Council of Irish Chiefs and Chieftains confirming that MacCarthy had been a member since its ‘reconstitution’ in 1991; a certificate issued 19 April 1993 by Cashel Urban District Council confirming that it had granted a civic reception to MacCarthy; a copy of the manuscript Genealogie de la Royale et Serenissime Maison de MacCarthy; extracts from Who’s Who in Ireland and Debrett’s People of Today; copies of Chief Herald Begley’s letters of 18 June and 3 November 1988 confirming there was no objection to MacCarthy’s disposal of titles; the whole completed with copies of publications by MacCarthy and his partner Andrew Davison, ‘Count of Clandermond’, and some other miscellaneous published material.
The Court commenced its review of the evidence by considering sections 1 and 2 of Article 40.2 of the Irish Constitution, which declare respectively, ‘Titles of nobility shall not be conferred by the State’, and ‘No title of nobility or of honour may be accepted by any citizen except with the prior approval of the government’. It was noted that while the Republic of Ireland had chosen to recognise the existence of Gaelic Royal Houses, under international law a successor state had no right to alter the status of heads of non-ruling royal houses. It appeared to the Court that lordships of the Kingdom of Desmond were listed in a St Leger Tract of 1588 and in the Genealogie de MacCarthy Manuscript. The Mac Carthy Mór’s ‘prerogatives over those feudal lordships’ had been recognised by the Chief Herald in his letter of 16 June 1988. Furthermore, such titles were a form of ‘incorporeal property’, and Article 40.3.2 of the Irish Constitution guaranteed citizens full enjoyment of their property. The Chief Herald in his letter of 16 June 1988 had conceded that Mac Carthy Mór had ‘under our Constitution . . . the right to beneficial disposal of such property’.
The Court then turned to consider the arms claimed by MacCarthy, briefly reviewing firstly the history of heraldry in Ireland and the Anglo-Norman and Gaelic traditions thereof. It was noted that while as in the case of other Gaelic ruling families the MacCarthys had only adopted ‘true heraldry’ in the sixteenth century, the main device of a Red Stag had been associated with the Eóghanacht Monarchy for centuries. The arms of Donal Mac Carthy Mór, Earl of Clancare, were recorded in their basic form as ‘Argent, a stag trippant gules, unguled and armed or’(meaning, ‘on a silver shield a red stag hooved and antlered gold’), which was the form of the arms registered by the Chief Herald. However, there was stated to be evidence from other sources, and particularly from folio 99 of the Genealogie de MacCarthy Manuscript, that the shield should be ‘surmounted by the ancient five-pointed gold crown of the Kingdom of Desmond, surrounded by a Niadh Nask Collar, and supported by two Angels’, with the motto Lámh Láidir Abú (‘Strong Arm Forever’). Leading branches of the MacCarthys in exile in France had borne this more elaborate version of the arms, and the current Mac Carthy Mór was therefore following the example of his predecessors in displaying these arms.
The Court further examined the question of the sovereignty which can be exercised by a deposed prince. While the rights of commanding and enforcing obedience may be limited, the Fons Honorum or prerogative of bestowing titles is maintained complete and may be transmitted to successors. In the case under examination, the Court observed that although ‘deprived of the exercise of effective authority over those territories once included within the Kingdoms of Munster and Desmond’, the Mac Carthy Mór enjoyed within his clan ‘what could be considered to be a non-territorial sovereignty over more than half a million people dispersed throughout the world who bear his surname’.
The judges Messina, Rusconi and Pinotti arrived at a verdict on 19 December 1997, which was in favour of the plaintiff MacCarthy and against the defendant Dr Marco Horak. The Court declared that MacCarthy was entitled to bear his various titles, to exercise the prerogative of Fons Honorum, to dispose according to his own wishes of those Gaelic feudal lordships vested in the Eóghanacht Royal House of Munster, and to bear the full coat of arms of the said Royal House. In view of the ‘special nature’ of the case and the ‘free services’ of the judges, it was ruled that the expenses of the trial were considered paid. On 20 December, the verdict or ‘arbitration ruling’ was filed in the Records Office of the Magistrate Court of Casale Monferrato, and on 12 January 1998 the said Court declared the arbitration to be final and conferred on it the legal effect of a judgment.
The Second Verdict
This was not the end of the proceedings, for the Arbitral Court at Casale Monferrato had deferred consideration of other differences between MacCarthy and Dr Marco Horak until the following year. On 22 June 1998 the Court, presided over by the same judges Messina, Rusconi and Pinotti, was stated to have convened again to adjudicate in the matter of the right of Mac Carthy Mór to surmount the coat of arms of the Niadh Nask or Military Order of the Golden Chain with the ancient Crown of Munster. Horak was alleged to have stated on many occasions that there was no historical evidence of the existence in Gaelic Ireland of knighthood or the Niadh Nask itself, and that MacCarthy’s conferral of such an Order was therefore illicit. It was stated that on 30 August 1997 MacCarthy had written to Horak warning him to desist from these allegations, but without effect.
Again the plaintiff MacCarthy produced to the Court voluminous evidences in support of his case, including the verdict of 19 December 1997; the Chief Herald’s certificate of 28 January 1992; the Genealogie de MacCarthy Manuscript; the plaintiff’s Irish passport; the letter from the Standing Council of Irish Chiefs and Chieftains; the 1996 edition of the Register of the International Commission for Orders of Chivalry listing the Niadh Nask; South African letters patent dated 23 March 1983 recording the arms of the Niadh Nask; documentation recognising the name and arms of the Niadh Nask issued by government agencies in Canada and the United States of America; and various publications by MacCarthy, the ‘Count of Clandermond’ and others.
The Court commenced by considering whether there was historical evidence for the existence of knighthood in Gaelic Ireland before the Anglo-Norman invasion of 1169. It was noted that both Selden and Froissart had stated that the Gaelic Irish had their own distinctive forms of knighthood, and that the defendant’s assertion to the contrary was based on ignorance. In relation to historical evidence for the existence of the Niadh Nask, the Court referred to sources cited in a work submitted by the plaintiff. Among the sources and authorities cited were the Annals of Clonmacnoise, Geoffrey Keating, Comte O’Kelly d’Aghrim, Canon U J Burke, P W Joyce, whose combined weight allegedly proved that there existed an ancient Irish order called the Niadh Nask or Knights of the Golden Collar. Though it was indicated that the reputed founder of the Niadh Nask, King Muinheamhoin, who reigned about 691 BC, was mythical, the 88 recorded unbroken generations of descent between him and the plaintiff Mac Carthy Mór were noted by the Court.
The Court then moved to consider a matter which was apparently not germane to the issues before it, but which clearly must have been inspired by the recent claim to the title of Mac Carthy Mór lodged by Barry Trant McCarthy. This was presented as the ‘hypothetical’ case of a succession dispute between an incumbent Mac Carthy Mór holding his title by Tanistry, and a ‘Pretender’ claiming the same title by right of primogeniture. Such a rival claim, it was asserted, could not be heard in any court, since Mac Carthy Mór was ‘not answerable in such a matter to any jurisdiction whatsoever other, possibly, than his own Derbfine, or Council of the Princes of the Blood’. If such an hypothetical Pretender sought recognition from a successor state, ‘the legal consequences of such an act would amount to treason against his own dynasty’. Furthermore, it was pointed out that the legal code of the Republic of Ireland was based on English Common Law, under which all Gaelic titles had been abolished. The Chief Herald’s ‘administrative procedure’ of granting ‘courtesy recognition’ to bearers of Gaelic titles was ‘questionable if not actually illegal’, and certainly gave him no legal authority to ‘annul their laws of succession’. Accordingly, the Court held ‘that the only valid laws governing the descent of the chiefship of the Eóghanacht Royal House of Mac Carthy Mor, with the Hereditary Headship of the Niadh Nask therein vested, are the Brehon Laws of Tanistry’. The Court then conducted an historical review of the descent of the Eóghanacht Crowns of Munster and Desmond, proving to its own satisfaction that the Brehon Laws of Tanistry and not primogeniture had been the operative mode of succession.
After these digressions, the Court returned to the main matter in hand, the Niadh Nask. The Court concluded from the evidence presented that such an order had existed from the remote past without interruption, and stated that it lay within the Fons Honorum of the plaintiff MacCarthy ‘to bestow the Niadh Nask as a dynastic honour’. The Court also noted that the Niadh Nask had been recognised as ‘an armigerous body corporate’ in the jurisdictions of South Africa, Canada and the United States of America. Accordingly, on 19 June 1998 the judges Messina, Rusconi and Pinotti rejected the plea of the Defendant Horak and once again upheld the complaints of the Plaintiff MacCarthy, declaring that the Niadh Nask ‘must be considered in international law as a dynastic honour of the Royal House of Munster’, that the Republic of Ireland had ‘no jurisdiction in any matter determined by Brehon Law’, and that the plaintiff as chief of the Eóghanacht Royal House had the right to use the arms of the Niadh Nask, ‘surmounted by the Ancient Royal Crown of Munster’. As in the first trial, the costs of the suit were waived. It is not clear whether the second verdict was filed in the Records Office of the Magistrate Court of Casale Monferrato like the first.
Horak does not appear to have submitted documentation as detailed as MacCarthy’s, and all in all seems to have been a rather docile or perhaps cowed defendant throughout the proceedings in both trials. There is no sign of vigorous questioning of MacCarthy’s evidence on the part of Horak, and in general the field was left clear for the plaintiff effectively to dictate the verdicts.
Supporters of MacCarthy were keen to promulgate the Italian verdicts in his favour, and in November 1998 issued a published account under the title A New Book of Rights (Clonmel, County Tipperary, 1998), which contained the text of the legal proceedings and verdicts translated from Italian to English, together with several essays containing historical and legal commentary. Peter Berresford Ellis contributed an introduction, in his capacity as ‘Historian to the Royal House of Munster’, wherein he insisted again that succession to Gaelic titles must be by Brehon Law. In particular, Ellis claimed that the Casale Monferrato judgements meant that the primacy of Brehon Law in this regard was now recognised under international law. John Michael Johnson, an American military judge and a Niadh Nask, described the first verdict in favour of Terence MacCarthy as ‘a model of analytical clarity’, and the second verdict as consolidating ‘the historical, genealogical and legal framework which underpins the Niadh Nask’.
Captain Mitchell Lee Lathrop, described as Attorney General of the Niadh Nask, hailed the court decisions as representing ‘a milestone in clarifying and harmonising different legal concepts based upon different bodies of law’. David Victor Brooks, described as Legal Counsel to Mac Carthy Mór and again a Niadh Nask, rounded on ‘a small, ill-informed Anglophile and Hibernophobic, Internet-addicted clique of self-acclaimed experts’ who had attempted ‘to denigrate the historical status of Irish princes’. The work concluded with an English translation and the text in Spanish of a certificate of arms issued to MacCarthy on 8 December 1997 by the Marqués de la Floresta, Cronista de Armas de Castilla y León, which specifically cited documents validating his pedigree issued by Chief Heralds of Ireland. This was preceded by purported observations of one of the Casale Monferrato judges, Dr Rusconi, who following comment on the supposed Spanish origins of the Eóghanacht Royal House of Munster via Milesian descent, allegedly declared that the Cronista’s certificate constituted a formal act by which the Crown of Spain, through a certificate issued by a delegated officer, had ‘recognised the fact that The Mac Carthy Mór, Prince of Desmond, is the Chief of his Name and Arms and Head of his Royal House, and possessed of the power of Fons Honorum’.
When the present writer first learned of the Casale Monferrato verdicts via Internet reports and the aforementioned publication, the initial reaction was one of surprise that an Italian court would presume to make such rulings in favour of MacCarthy. What would have been the response if a claimant to an Italian noble title and arms had secured judgments in his favour in an Irish court? It would be fair to say that the Internet publicity generated by the case, and in particular online discussions on the newsgroup rec.heraldry, provided me with the inspiration and indeed information to commence an in-depth study of the Mac Carthy Mór affair.
It is of course now clear that the MacCarthy versus Horak case was completely contrived, a device which has not been uncommon where a bearer of a questionable title is seeking to have it validated. Of such cases Enrique Carlos Count Zeininger de Borja is reported to have written:
It must be repeated yet again that the value of such a court judgment - all the more so where there is no adversarial process and no hearing of the opinion of serious experts - is rather problematical in establishing the existence or non-existence of historical fact. Unfortunately, Italian courts appear to excel in handing down such verdicts. (quoted at http://www.maineworldnewsservice.com/caltrap/The%20Emperor%20of%20Palm%20Beach.htm)
In Ireland the Office of the Chief Herald did not react to the legal proceedings in Casale Monferrato, maintaining a silence on its role in validating MacCarthy’s claim to chiefship which would only be broken in the wake of the exposure of the hoax in 1999. To set the record straight once again, the present writer issued an independent report on 16 June 1999 exposing the falsity of Terence MacCarthy's claims, and the role of the Office of the Chief Herald in facilitating same, which was followed by an exposé in the Irish edition of the Sunday Times on 20 June. The following month, on 19 July, the then Chief Herald Brendan O Donoghue announced that he had nullified MacCarthy's recognition as a chief and invalidated his confirmation of arms and registered pedigree (taking time also to bestow gratefully on the present writer the title of 'self-appointed saviour of Irish genealogy').
In February 2004 there was an admission during a further discussion on rec.heraldry that the Casale Monferrato case was indeed contrived, but it was claimed that those who organised and facilitated the proceedings were acting not as accomplices of MacCarthy but as friends of Dr Horak endeavouring to protect him from legal ruin, that in effect they were all victims of MacCarthy’s blackmail (discussion archived at http://groups.google.com). This explanation bears the merit of plausibility, and invites acceptance on grounds of charity, but the present writer does not believe that it tells the whole story. Additionally, the writer was informed by Dr degli Uberti, now in charge of a reconstituted and post-MacCarthyite International Commission for Orders of Chivalry, that the above mentioned article attributed to Dr Rusconi was in fact a forgery, raising questions as to whether other parts of A New Book of Rights were also fabricated.
Indeed it is not clear if any kind of formal court proceedings ever took place in Casale Monferrato, whether all the participants actually met face to face, and it would not be unreasonable at this juncture to describe the case MacCarthy versus Horak as in itself a hoax. Of course it remains a moot point as to how ethically acceptable it would be under any circumstances to participate in such a legal sham, which brought no credit at all to the Italian legal system. Yet some good did come of the preposterous proceedings in Casale Monferrato in 1997-98, in that in retrospect they can be seen to have helped trigger Terence MacCarthy’s downfall, and hopefully they have made it difficult if not impossible for any other impostor to engineer a similar case in Italy in particular.
I was several times assured that the verdicts in MacCarthy versus Horak were formally annulled, but promised documentary confirmation of this claim has not materialised. I must also admit to disappointment that for some eight years Dr degli Uberti has left unamended online a charge that I have written about MacCarthy versus Horak ‘in an incompetent manner’, opining also that ‘the peoples who attend newsgroups rarely prove their affirmations by documents and prefer unscientifically expressions and superficial opinions while avoiding to study the question more deeply’ (http://www.geocities.com/Paris/Cathedral/4800/IIHG/MCM2.html). Alas, my main offence is not that I lack the capacity to grasp the complexities of cases such as that of Mac Carthy Mór, but that I understand them only too well, and truth is indeed harder to forgive than lies. While the Office of the Chief Herald was reconstituted in 2005 in the wake of the Mac Carthy Mór scandal, and the second signatory of Terence MacCarthy's certificate of chiefship promoted to the post of Chief Herald in 2005, serious questions remain concerning the office's legal power to grant arms (http://homepage.eircom.net/%7Eseanjmurphy/chiefs/armscrisis.htm). A fully referenced account of MacCarthy versus Horak is to be found in my book Twilight of the Chiefs: The MacCarthy Mór Hoax, Bethesda, Maryland, 2004, pages 87-95. In conclusion, it should be emphasised that MacCarthy versus Horak was not an authentic law case, its verdicts never had any legal validity whatsoever and certainly they did not establish any points of law either nationally or internationally in relation to the Mac Carthy Mór chiefship, or with regard to pedigrees, arms, titles and orders in general.
Sean J Murphy MA
Centre for Irish Genealogical and Historical Studies
12 January 2008, last amended 20 January 2008