Under Maxwell’s regime over 3,400 people were arrested and 1,841 of these were interned. More dramatically, 183 civilians were tried by court martial, 90 of whom were sentenced to death. Fifteen of these were shot between 3 and 12 May 1916. A sixteenth, Sir Roger Casement, who had been captured in Kerry, was tried for treason by a London jury and was hanged in London on 3 August. Martial law had been proclaimed on 26 April by the lord lieutenant and on the same day legal steps, discussed below, were taken to deny the persons charged in connection with the rebellion the right to jury trial. They were thus (apart from Casement) tried by field general court martial in secret and without defence lawyers.
A field general court martial is a summary form of general court martial: the precise differences are discussed below. For present purposes the important distinction is that the summary procedure required no ‘judge advocate’ or legally qualified member of the court. There is a striking contrast between the trial of Eoin MacNeill by general court martial, with judge advocate and counsel for the defence, and that of two or three of the executed prisoners. In each case the evidence was ‘extremely thin’ but MacNeill’s life was saved in part due to the need for the verdict to withstand legal scrutiny.
Within a very short time, as both contemporary nationalist and unionist commentators, and historians, attest, there was what General Sir John Maxwell described in June as ‘a revulsion of feeling’ in favour of the rebels.3 The unionist historian and Trinity College Dublin Professor W. Alison Phillips, in his History of the revolution in Ireland, quotes a confidential police report from Tyrone on the effect of this: ‘The Sinn Féiners, from being objects of contempt, became heroes.’4 There is much debate amongst historians as to the precise reasons for this: Phillips himself ascribed pride of place to Asquith’s visit to Ireland in mid-May 1916 and his promise to take steps to allow the home rule Act to be brought into early operation, so that ‘the rebellion was thus advertised to the world as the most successful failure in history’.5 But no one, including Phillips, doubted the effects of the executions. True it is that the Irish Times proclaimed to its readers that: ‘Martial law has come as a blessing to us all.’6 But even the official view, privately expressed by Duke (the new chief secretary) in September 1916, was that ‘the reaction in popular feeling upon the repression of the rebellion has altered the relations of the extremists to the general population’.7 W.B. Yeats’ poetic expression of the same view is too well known to require quotation.
My purpose is simply to consider the legal framework under which these things, and especially the executions, took place. We will see how prior events shaped that framework, which was quite different to the ordinary legal system of either Britain or Ireland. Unlike previous (1798) and subsequent (1920–1 and 1922–3) executions in time of martial law, no attempt was made at the time to challenge the legality of the 1916 executions and the process which led to them, but I will nonetheless consider their legality in contemporary, as opposed to present day, terms. We will see that the imposition, by proclamation, of martial law was regarded by British politicians principally as an exercise in ‘shock and awe’ which rebounded badly and from which the government itself was soon in full retreat. But the military men took it seriously and could not understand the increasing dilutions of it that the ‘frocks’ (as the soldiers contemptuously called the politicians) forced on them. The resulting confusion and ambiguity was literally fatal in some cases.
A number of contemporary sources, notably certain British papers in the de Valera collection deposited in University College Dublin (UCD) Archives, throw fascinating light on the tension between a martial law approach to the suppression of the Rising, favoured by Maxwell and proclaimed by the government, and the approach under the Defence of the Realm Acts which was, for the most part, actually if imperfectly followed.
DEFENCE OF THE REALM ACTS
The 1916 rebellion broke out in the middle of the First World War. At the very beginning of that conflict, in August 1914, the British government had introduced the first of its Defence of the Realm Acts. These constituted as comprehensive a code of extraordinary legislation, including provision for the trial of offences by military courts, as any war leader could desire. But it emphatically was not martial law and in 1914–15 British lawyers and parliamentarians showed themselves surprisingly alive to its civil liberties implications. In the latter year, indeed, an amending Act expressly preserved the right to jury trial, but this provision itself could be dispensed with in certain circumstances. The central provision of the Defence of the Realm Act (DORA) laws as they were known, permitted the making by ministers of a truly enormous number of Defence of the Realm regulations which allowed the government (without recourse to parliament) to control a huge number of aspects of ordinary life ‘for securing the public safety and the defence of the realm’, as the second amending Act put it.8 This permitted the creation of a great number of offences which, if committed ‘with the intention of assisting the enemy’, carried the death penalty. These covered everything from entering prohibited areas or spreading discouraging reports to failing to answer official question and (in the case of a woman who had a social disease) having intercourse with a member of the armed services. More relevant to Ireland, it allowed for banishment from particular areas and the suppression of newspapers. It might be thought that this comprehensive code contained every power necessary for dealing with the 1916 Rising, and indeed it did.
All the 1916 prisoners relevant for our purposes were charged under the regulations that they had ‘taken part in an armed rebellion and in the waging of war against His Majesty the King, such act being of such a nature as to be calculated to be prejudicial to the Defence of the Realm and being done with the intention of and for the purpose of assisting the enemy’.9 There were also less serious charges not immediately relevant for present purposes.
ASPECTS OF THE DORA REGIME
These Acts were not uncontroversial in Britain. On 8 August 1914, just as the war began, the first Defence of the Realm Act was passed. It is barely half a page long in the statute book and relatively modest in the power conferred. It permitted the making of regulations in effect to prevent espionage and sabotage. The amending Act, introduced on 27 November 1914 was much more general in its effect and permitted regulations to be made ‘for securing the Public Safety and the Defence of the Realm’ and in particular to ensure the success of the war.10 It was immediately seen that this power was very wide indeed and open to abuse.11 It was to attempt to conciliate these civil liberties concerns that in the Defence of the Realm (Consolidation) Act, 1915 it was provided in section 1 that:
Any offence against any regulation made under the Defence of the Realm Consolidation Act, 1914, which is triable by court martial may, instead of being tried by court martial, be tried by a civil court with a jury.
However, section 1(7) provided:
In the event of invasion or other special military emergency arising out of the present war, his Majesty may by proclamation forthwith suspend the operation of this section, either generally or as respects any area specified in the proclamation …
It was this section that was operated by proclamation on 26 April 1916, as regards Ireland. The effect of this step was to permit the trial of the prisoners who were charged with breach of regulations by a field general court martial.
A REMARKABLE SOURCE
In considering how these provisions were implemented in Ireland in 1916, we are very fortunate to have a remarkable source in the form of a private memoir, written for his daughter, by W.E. Wylie, who in 1916 was a king’s counsel in Dublin and a member of the Trinity College officers’ training corps. Wylie prosecuted at many, but not all, of the major courts martial in 1916. He was subsequently appointed law adviser to the Irish government and became a member of the remarkable group of Dublin Castle public servants who in 1920–1, while serving the Crown, took every opportunity to advise and negotiate a settlement. Unlike many persons closely associated with the British
regime, Wylie stayed in Ireland after 1922. He had been appointed a judge of the old High Court of Ireland in November 1920 and in 1924 was appointed a judge of the High Court of the Irish Free State. He was also well known for his association with the Royal Dublin Society (RDS) and the equine industry generally, and with the Irish Red Cross. He died in Dublin in 1964.12
Wylie, though merely a lieutenant in the military order, was eagerly seized upon by the British military as an experienced and reliable lawyer. He was not, however, a criminal lawyer but rather an expert in local government law. But he had a sound grasp of principle and his courage and fair-mindedness saved the lives of several prisoners, including W.T. Cosgrave. He was summoned on 1 May 1916 by General Joseph Aloysius Byrne, assistant adjutant general of the forces in Ireland. Their interview took place at midnight and he was told to start the courts martial the following morning at 9am in Richmond Barracks. He asked what charge he was prosecuting and was told, according to his later recollection: ‘That’s for you. Make out your charge sheet, notify the accused. General Blackadder will act as president of the court. Carry on.’ Wylie wryly commented: ‘Not much sleep for me that night.’13
From this anecdote there emerges clearly the first unusual feature of the courts martial: their extreme rapidity. The first prisoners at any rate (Pearse, MacDonagh and Clarke) must have had virtually no notice of the charge. There was, of course, considerable evidence against these prisoners. Pearse made a speech which constituted not so much an admission as a proud claim to have done what was alleged. MacDonagh and Clarke, according to Wylie, took no part in the proceedings at all.14
But the main consequence of the rapidity of the trials was that for the entire week 2–9 May Maxwell was in sole charge of who was tried and what sentences were confirmed. This, literally, was a power of life and death. Asquith expressed surprise at the speed of the first court martial and the three consequent executions but he did not intervene to prevent more executions until 9 May.15 Even then he did not prevent the executions of those (Connolly and MacDermott) convicted on that day. When on 9 May the government effectively prevented further executions without reference being made to the political authority, Maxwell sought wriggle room. He wrote on that day: ‘As far as I can state these will be the last to suffer capital punishment unless of course any cases of proven murder of soldiers or police.’16
By now, however, the government was terribly alarmed and replied on the same day. Its position was a somewhat difficult one. It was convinced that the ongoing executions were counter productive, especially in terms of American opinion; but it was unwilling to be seen to give a direct order to a man who less than a fortnight before it had proclaimed as military governor of Ireland with plenary powers under martial law. Accordingly, it wrote on the same day that the ‘ … cabinet assume that by “proven murder” you mean special cases other than death in the ordinary course of fighting. In all such cases the charge should be, in terms, one of murder’.17
This cabinet instruction – for such indeed it was, in reality if not in form – highlights two other aspects of the legal regime generally and of the decision to try the main prisoners under the DORR. Firstly, the powers conferred on the courts martial, and made effective in Ireland by the suspension of the right to jury trial, were very extensive, but only in relation to offences against DORR. ‘Ordinary’ crimes such as murder, rape, robbery or burglary were not within the scope of the regulations. This, indeed, was dramatically highlighted in the case of Captain Bowen Colthurst, a British officer who murdered Francis Sheehy Skeffington and two others in Portobello Barracks. It was impossible to contemplate a civil trial for him, because he would almost certainly have been convicted of murder. But the lord chief justice of England, the attorney general and solicitor general of England, the judge advocate general and the Irish law officers all opined that he could not be charged by court martial with murder, because it was a civil offence even when committed by a military officer on duty.18 Accordingly, it would have been quite impossible to charge any rebel prisoner with murder before a court martial whose sole jurisdiction arose from DORA. Bowen Colthurst was eventually court martialled only after Attorney General Campbell had decided to take a chance on the proposition that no-one would challenge it.
The second, even more dramatic, matter revealed by the cabinet’s communication of 9 May is that they did not know of this grave limitation on what offences could be tried by court martial under DORA.
Wylie, according to his later memoir, was not in agreement with the shooting of leaders as a general policy. More specifically, he did not agree with the idea of what he called ‘drum head’ (i.e. summary) courts martial and was further disturbed by the fact that no defence lawyers had been permitted, and by the speed and secrecy of the trials. These factors were to emerge as vital in the political reaction to the Rising and its suppression.
Late on the day of the first courts martial (2 May 1916) Wylie went to see James Campbell KC, the Irish attorney general. Campbell had been an associate of Carson and Birkenhead in the Ulster troubles and had been appointed attorney general (and later lord chancellor) of Ireland as a sop to unionist opinion. Wylie invited him to have the courts martial heard in public and to allow the prisoners to be defended. According to Wylie: ‘Campbell would not hear of it. He would give the prisoners no public advertising and would not be satisfied unless forty of them were shot.’19 In view of these opinions, and of his history in general, it is ironic that Campbell too remained in Ireland after independence, even though his nationalist predecessor as lord chancellor, Ignatius O’Brien, Lord Shandon, departed to England. Wylie’s memoir, written at the beginning of the Second World War, comments: ‘It amuses me and is illustrative of politics to remember that Campbell, Lord Glenavy as he became, was within a few years to be the chairman of the Irish Free State senate.’20
Wylie, I believe, was right in all the reservations he expressed about the court martial procedures. The speed and secrecy of the trials and the failure to allow any account of the evidence to be published gave rise, as Maxwell himself admitted, to a widespread belief that the prisoners had been shot in cold blood. This phrase was used in Maxwell’s report to the Prime Minister of 24 June 1916, and independently in the famous denunciation of Maxwell by Dr O’Dwyer, Bishop of Limerick, on 17 May.21
Before considering the legal propriety of this aspect of the courts martial, it is important to recall the atmosphere of the time. Even before the rebellion ended there were rumours of summary executions. Mary Louisa Norway, an Englishwoman and wife of the secretary to the Irish Post Office, chronicled these on the Friday of Easter week in a long diary type letter to her sister in England:
On Wednesday three of the ring leaders were caught and it is said that they were shot immediately! … We also hear that Sir R. Casement has been shot in London, but you probably know a great deal more about that than I do, as we see no papers and are completely cut off from all news.22
Mrs Norway, however, was constantly in the company of officials and officers and was much better informed than ordinary people. By contrast, the general public’s susceptibility to rumour is easy to imagine. Ordinary Dubliners first heard of the proclamation of martial law and then, for nine terrible and enervated days, the curt announcement of executions, without any account of court martial proceedings or the evidence heard at them. On the nationalist side Eoin MacNeill recorded a rumour the following week that a huge grave had been dug in Arbour Hill, to receive the bodies of several hundred rebels.23 The journalist Warre B. Wells, addressing an English audience, invited them to set aside all question of the propriety or expediency of the courts martial. But he said: ‘I am simply inviting you to endeavour to understand their effect on that Irish public which read of them with something of the feeling of helpless rage with which one would watch a stream of blood dripping from under a closed door.’24
LEGALITY OF CLOSED DOOR PROCEEDINGS
By reason of the provisions of DORA, it was undoubtedly legal
in British law for the prisoners to be tried by field general court martial in certain circumstances. In the words of the first 1914 Act they were liable to be so tried ‘in like manner as if such persons were subject to military law and had on active service committed an offence under s. 5 of the Army Act’. This, however, was subject to the right to opt for jury trial, preserved by the 1915 Act, until its suspension in Ireland by proclamation on 26 April 1916. But this was a provision with little comfort for the Crown on the question of closed door proceedings. The ‘Act’ referred to in DORA 1914 was the Army Act of 1881. The procedures at courts martial were governed by the 1907 rules of procedure, made under that Act. Rule 119 (c) provided that ‘… Proceedings shall be held in open court, in the presence of the accused, except on any deliberation amongst the members, when the court may be closed.’ This seems an unambiguous provision. Moreover, a lawyer construing it would apply the canon or rule of construction described in Latin as expressio unius exclusio alterius. This means that where a particular thing is permitted in one, specified, circumstance, that is to be construed as excluding it in any other circumstance. Thus the provision that the court could be closed while the members were deliberating implies that it could not be closed in any other circumstance.
A LEGAL CHALLENGE
We have already seen that no contemporary legal challenge was taken to the proceedings by court martial in May, 1916. The speed with which they were convened, and with which execution followed sentence, may have influenced this, but it is hard to see any of the executed leaders wishing to seek relief in a British court. Certain aspects of the legality of the court martial regime did, however, come before the courts of England in February 1917.25 Gerald Doyle was a man who had been tried by court martial, sentenced to death, but recommended to mercy on the grounds that he was ‘a dupe’. The sentence was commuted to three years’ penal servitude. He was serving that sentence in Lewes gaol in England when he sought habeas corpus. His solicitor was George Gavan Duffy who had earlier acted in the defence of Sir Roger Casement. He was later, briefly, minister for foreign affairs in the Free State government but resigned in protest at the abolition of the Sinn Féin courts. He then practised as a barrister in Ireland until appointed president of the high court by de Valera’s government in the 1930s. He was, according to Professor John M. Kelly, the judge to whom most of the creative interpretation of the constitution in the first fifteen years of its existence is to be attributed.
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