Although several points were taken in Doyle’s case, there was only one of real legal substance. This was that the trial and conviction were invalid because there had been no legal power to hold the court martial behind closed doors, excluding the public and, perhaps more relevantly, the press. This claim was unsuccessful. The legal approach of the seven judges of the divisional court who considered it was, either by our contemporary standards or even by the standards of the time, crude in the extreme. Their attitude emerges clearly from the judgment of Mr Justice Darling, later Lord Darling, a peer but not a law lord:
It appears to me to be incongruous that, before the echoes of this rebellion have died away, we should meet here solemnly to consider such points as have been argued before us … The trial took place in barracks when the rebellion in Ireland was still going on. The ruins in Dublin were still hot cinders, and the whole place was in the condition in which it is described by the fact that certain military precautions were taken, and the general in command of his Majesty’s Forces came to the conclusion that it would not be possible to administer justice if the public of Dublin were to be invited to attend at an open trial of persons with whom, no doubt, a great many of them sympathised.26
In none of the judgments, and particularly not in the leading judgment of Lord Reading CJ (formerly Sir Rufus Isaacs), was there a more sophisticated level of analysis. The judges did reject the Crown’s contention (advanced by the attorney general, Sir F.E. Smith KC, later Lord Birkenhead) that the word ‘open court’ simply meant that the prisoner and his counsel if any were entitled to be present: this is an interpretation for which there is absolutely no legal warrant. But they upheld the secret proceedings on the basis of an affidavit of General Maxwell, which they summarised as saying:
Being clearly of opinion that, in the existing local conditions, it was necessary for the public safety and for the defence of the realm that neither the public nor the press should be admitted to the trial, he gave orders accordingly and the trial took place in camera.27
The divisional court upheld the secrecy of the trial by referring to an earlier case, which found that there was an inherent jurisdiction in every court to exclude the public ‘if it becomes necessary for the administration of justice’.28 Even assuming that to be true, the judgments evade the apparently insuperable obstacle that neither Doyle’s court martial, nor any other field general court martial in Dublin in 1916, had itself even purported to exercise this jurisdiction. In a remarkably threadbare argument Lord Reading overcame this difficulty as follows: he cited the opinion of Maxwell as the military authority convening the court martial and continued:
The commander-in-chief having come to that conclusion and having stated it, we must assume [emphasis added] that the field general court martial convened by him, which he was the proper person to convene, and which sat in consequence, held the same view…. I think he means that if there had been a trial in open court – that is, with the public admitted – in the existing local conditions it would have been unsafe; and in my judgment if it is unsafe for justice to be administered it is equivalent to saying that justice could not in those circumstances be properly administered. In the existence of such a state of circumstances it is quite possible to conceive a number of persons coming into court, if the public had been admitted, who might have terrorised, possibly even shot, witnesses. Having regard to those conditions, it seems to me abundantly plain that this case was well within the principle as stated in Scott v. Scott and consequently that there was jurisdiction to try it in camera.29
This passage is almost risible. It is the work of judges showing themselves ‘more executive minded than the executive’, to use the phrase of the great British jurist Lord Atkin in his remarkable dissent in a later wartime case.30 The courts martial took place in the Richmond Barracks, Dublin, or another absolutely secure location. There was every opportunity for adequate security measures. But quite apart from that the reasoning provides no basis whatever for the exclusion of the press, as opposed to the public. Had they been present it is quite possible that the perception of the executions, or at least some of them, would have been different; certainly, it is less likely that the impression of prisoners being ‘shot in cold blood’ would have taken hold. But is also likely that, at a public trial, some at least of those executed would not have been convicted of a capital charge.
Reading was one of the most political judges of modern times. Attorney general at the time of his appointment as lord chief justice in 1913, the advent of the war saw him virtually abandon judicial for political work. He was first the unofficial and later the official broker between England and America in the vital period before the latter joined the war. Equally, he was the chief go-between when relations between Asquith and Lloyd George collapsed at the end of 1916. He disliked judicial work and left it for long periods, once to serve as ambassador to the United States. He eventually resigned to become viceroy of India in the 1920s and lived to hold cabinet office, including that of foreign secretary in the 1930s. He is the subject of Rudyard Kipling’s extraordinary anti-semitic hate poem Gehazi, written on his appointment as lord chief justice immediately after his involvement in the Marconi share scandal.
A GUILTY OFFICIAL CONSCIENCE:
EVIDENCE 'EXTREMELY THIN'
In June 1916, and on at least two other occasions, Prime Minister Asquith, under pressure, promised to publish the court martial proceedings. In fact they were to be suppressed until the 1990s. Asquith’s promise horrified and galvanised the military authorities and led to gross obstruction from army lawyers. The reason for this is a startling one: the military and legal authorities did not believe that some of the verdicts could withstand legal scrutiny. Maxwell himself may not have been told of the legal difficulties – it would have been very embarrassing to broach the subject with him. At any event, on 3 June 1916 he was persuaded to give an interview to Associated Press, in order to counter the unfortunate effect that the executions had had on American opinion. He told the correspondent that: ‘Every trial was absolutely fair as will be seen from the reports when they are published.’31 But he was the only significant player on the British side not to be privy to a major legal difficulty that had emerged.
The law officers advised in January 1917 that: ‘There does not seem to be any legal justification for the holding of a court martial in camera.’32 Even more strikingly, the secretary to the Army Council, Sir Reginald Brade, agreed, noting that: ‘There appears to be nothing in the Army Act, or the rules of procedure, to justify the holding of a court martial in camera.’33 I have no doubt that this is correct in law, at least to the extent that the Dublin courts martial had failed even to consider the question of excluding the public and the press; they had simply taken their orders from Maxwell.
Though the army chiefs believed Maxwell had been wrong, they still opposed publication on two grounds, both significant to the historian. Firstly, they said to publish would imply that Maxwell had been wrong in holding the trial in camera. His life might have been in danger and so might the lives of witnesses. This latter point is nonsense. In the case of all executed prisoners all the witnesses without exception were servants of the Crown; they were nearly all English soldiers, with very few policemen and one prison warden. Nor would publication necessarily involve disclosing names.
The second point urging against publication is still more fundamental and startling. Brade wrote: ‘while I can safely say that the evidence taken as a whole is conclusive of their guilt, there are one or two cases in which the evidence is extremely thin’34. Sir Neville Macready, the then adjutant general (and later commander in chief in Ireland 1920–21), went further:
As I have reason to believe that in certain cases the evidence was not too strong, the inevitable results of publication would be that a certain section of the Irish community will urge that the sole reason for the trials in camera was that the authorities intended to execute certain Sinn Féiners whether there was evidence or not. This is an
argument which in my humble judgement would be extremely difficult to meet successfully if as I think the evidence in some of the cases was far from conclusive.35
MARTIAL LAW
Despite the existence of a comprehensive code of extraordinary legislation in DORA, the legal reaction to the outbreak of the Rising on Easter Monday 24 April 1916 was, from the first, blustering and confused. This was partly because the Rising found the Irish executive both unprepared and physically separated. The chief secretary, Augustine Birrell, was in London, the under secretary Sir Matthew Nathan was at first isolated in Dublin castle and the lord lieutenant, Lord Winborne, was in the vice regal lodge in the Phoenix Park. From here he frantically telegraphed for military assistance. He then issued a proclamation of martial law for the city and county of Dublin. Winborne told Maxwell on 3 May 1916 that this had been drafted by the ‘law officers’, i.e. James Campbell as attorney general.36
Martial law had not been in force in Ireland since the early years of the nineteenth century. Exactly what it meant seems to have been little understood even by those who called for it and continued it. There is ample evidence, some of which will be discussed below, that it was interpreted by some British officers as entitling them to shoot or imprison anyone they liked, without recourse to any other authority.
Winborne’s gesture in proclaiming martial law on his own authority may be explained in terms of his own position. Isolated and without advice in the immediate aftermath of the outbreak, he had for some months been in conflict with the chief secretary and other members of the Irish executive over his own lack of power in governing Ireland. He had also been the only member of the Irish government who had issued warnings of unrest and demands for action in the period immediately before 24 April. On that day these warnings of disaster were borne out and he found himself in a position to take decisive action, or at least to make a dramatic, not to say melodramatic, gesture.
His action may also owe something to the fact that, according to what his private secretary later told Lady Cynthia Asquith, in the isolation of the vice regal lodge: ‘His Ex. simply swilled brandy the whole time’ and was in ‘superlatively theatrical form’.37
Whatever about Winborne’s personal circumstances, his gesture was enthusiastically taken up by the government in London. General Sir John Maxwell was dispatched to Ireland as military governor. As we have seen Maxwell was ‘given plenary powers under martial law over the whole country, the Irish executive having placed themselves at his disposal to carry out his instructions’.38 As those words implied, the government under its own authority extended martial law to the whole of Ireland on 29 April. These two separate proclamations were, and were meant to be, a plangent assertion of British authority in the form of martial law. To government supporters, this was extremely welcome. On 8 May, after the rebellion had been suppressed and the executions were well under way, the Irish Times was probably representative of unionist opinion in saying that ‘much nonsense is likely to be written in newspapers and talked in parliament about the restrictions of martial law in Ireland. The fact is martial law has come as a blessing to us all.’39 Several hundred business men petitioned the prime minister against ‘any interference in the discretion of the commander-in-chief during the operation of martial law’.40
Much more sinisterly, the notorious Captain J.C. Bowen-Colthurst, explaining on 9 May his decision to shoot three entirely innocent men who were prisoners in Portobello Barracks, said: ‘I felt I must act quickly, and believing I had the power under martial law [emphasis added], I felt under the circumstances that it was clearly my duty to have the three ring leaders shot.’41 Bowen-Colthurst was certainly eccentric, and was found insane at his court martial. But neither his commanding officer, nor the younger officers from whose custody he took the prisoners nor any more senior officer but one (Major Sir Francis Vane) to whose attention the executions, carried out openly in the main yard of the barracks, came, disputed his power to act as he did. A later report on this incident by Sir John Simon, subsequently lord chancellor, attributed this inaction to a misconception of martial law powers.42
In fact, the risks inherent in giving the military a free hand by proclaiming martial law, dramatically illustrated by the Bowen-Colthurst case, was present to the minds of several British politicians and soldiers in the period from 1916 onwards. Lloyd George warned the government that there might be drastic political consequences from ‘the unconsidered action of some subordinate officer’ if martial law were extended.43 In 1920, by which time martial law had been re-imposed in certain areas, Macready himself warned a subordinate that one of his divisional commanders, Brigadier General Prescott-Decies ‘will think that martial law means he can kill anybody he sees walking the road whose appearance may be distasteful to him’.44 At the time of the original proclamation of martial law in 1916 there was still actual fighting in progress and the possibility, however vague, of a German landing. Within days, however, the government was taking embarrassed, and for some time inconclusive, steps to claw back the total discretion accorded to the military, and Maxwell in particular, by the proclamation. But for a complex array of reasons, as we shall see, it was unwilling to withdraw it.
THE RETREAT FROM MARTIAL LAW
On 27 May martial law was proclaimed over the whole country for an indefinite period. References to it as being in force were made by government ministers and other high office holders until the end of the summer. But the government rapidly began to distance itself from the concept. Asquith said privately on 19 May that there had been ‘no single case in which it has been or is likely to be necessary to resort to what is called “martial law” and accordingly there is no adequate ground for its continuance’.45 On 31 July he told the House of Commons that:
There is no proceeding which has been taken by Sir John Maxwell or the military authorities in Ireland which is not taken under and which could not be justified by the Defence of the Realm Act. Martial law has never been put in force for any practical or effective purpose in Ireland.46
Why then, one might ask, was it proclaimed and continued? The answer appears to be to placate the soldiers and for ‘shock and awe’ purposes. The Irish law officers led by the Attorney General James Campbell wrote an opinion on the topic that was transmitted by Maxwell to the British government on 20 May 1916. This remarkable document agreed that, in point of law, martial law was unnecessary because the government had, during the rebellion, suspended the provision of the Defence of the Realm Act, 1915 that permitted a defendant to opt for jury trial. But they thought that martial law could nevertheless be extended ‘without any risk of serious complaint’. Furthermore, they suggested, there might be some purpose in doing so because:
undoubtedly the average citizen has an extraordinary belief in the magic term ‘martial law’, and its continuance would bring home to loyal and law abiding people a great sense of security and safety whereas the very indefinite knowledge of its powers spread terror amongst the disaffected.47
Still more remarkably, General Sir John Maxwell himself, the person in whom the plenitude of martial law power (and, according to Asquith’s public statement of the effect of martial law, the power to give instructions to the Irish government) was vested, complained bitterly of it. In a report to Asquith dated 24 June 1916 he sadly reported the ‘revulsion of feeling’ that had set in in favour of the rebels. This was the result, he believed, of suggestions that ‘the leaders were murdered or executed in cold blood without trial … that the military had been harsh unjust and oppressive etc.’. This he attributed in part to the fact that: ‘A grievance is manufactured because martial law has been declared. All public bodies spend their time in passing resolutions protesting against it.’ He pointed out, almost certainly correctly, that there was what he called ‘confusion of thought’ leading to people thinking that the Defence of the Realm regulations and martial law were one and the same thing. He concluded dramatically that: ‘The fact remains that no-one in Ireland has been hurt by martial
law because it has not been enforced.’48
Despite this Maxwell had campaigned vigorously for martial law to be retained after the second proclamation ran out on 28 May. In a letter of 20 May to Asquith’s secretary, Bonham Carter (the two were still in Dublin at the time of the letter), Maxwell said he wished it extended ‘for many reasons not least legal difficulties constantly cropping up’.49 He had still not finished the letter when he received the opinion of the Irish law officers, which has just been quoted. He said he was disappointed with the attorney general’s views:
To my mind he ignores the powers that I might put into force, if the necessity arose, under martial law. It is precisely because the Defence of the Realm Acts and regulations do not fit all cases that martial law being in force may be useful.50
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