February 06, 2011

How to commit treason once you are dead

Shane O'Neill died in 1567. In 1569, he attainted for high treason in the Parliament of Ireland by the Viceroy Sir Henry Sidney. Its long been a matter of interest to Irish historians that this happened: some speculate that Sidney and the crown wanted to get O'Neill's property in Ulster. A recent essay by Ciaran Brady argues that the trial was an arena for making a political point. Brady argues that the crown did not need to take O'Neill's property, instead what the act of attainder was was a complex act of political propaganda. Its long preamble asserted English perpetual sovereignty over Ireland and particularly over Ulster. Its importance was as an ideological statement of English power in Ireland and as a statement that both the native Irish and the English colonists were bound by that power. If O'Neill was a subject then he was a subject in the same way as the English colonists and so were all his Irish compatriots. The legal case was a political statement.

Its an interesting argument and Brady is probably right about Sidney's motivations. It does though make you think about the purposes of early modern and even of modern justice. Quite frequently you think of justice as a three party relationship: there is the offender, the judge and the audience outside. The offender is judged by the law to have committed a crime. The judge sentences to send a message to him and to the audience outside that crimes have consequences. The judge sends a message to the audience outside that crimes will meet with retribution: he satisfies bloodlust. What Brady shows is that there may be another dimension to a crime or a criminal trial: a trial establishes what is true and what is legal. So for example I may want as the state to demonstrate that Irishmen are subjects to the English Crown, thus I pass an Irish act of Parliament to assert that Irishmen can commit treason in the same way as the English.

To come to my title, the point is that O'Neill actually didn't do anything to commit treason. Rather than thinking about his punishment (the disinheritance of his heirs) as a punishment, its worth thinking about it as an argument. John Austin famously argued that all speeches or arguments were acts: Austin was right but what the case of Shane O'Neill reveals is that many acts are actually arguments.


James Higham said...

To come to my title, the point is that O'Neill actually didn't do anything to commit treason.

Or at least to raise the question: 'Treason to what?'