| Irish Chiefs Back to Homepage |
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
Background
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.
Aftermath
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:
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