Book Review: The Irish Civil War: Law, Execution and Atrocity, by Seán Enright (2019)

Is it better to be feared or loved, asked the wise Italian. Both are nice but, if one had to choose, fear should be prized over love, for men are fickle in their affections, while everyone thinks twice when the consequences are sufficiently dire. Machiavelli may have passed a harsh judgement on human nature, but the dilemma he presented was one the nascent Free State was forced to confront upon the shootings of Séan Hales and Pádraic Ó Máille on the 7^th December 1922, resulting in the death of the former and the wounding of the latter.

Both were TDs in the Dáil, with Ó Máille being no less its Deputy Speaker, and yet their ambush had been committed in broad daylight on a public street as part of a “carefully laid plan to annihilate this government,” announced Eoin MacNeill to the Dáil. It was a strong statement but, then, the Executive Council of the government in question, to which MacNeill belonged, was in a defensive mood, having just ordered the deaths of four imprisoned men in response.

The Executive Council of the Provisional Government, October 1922, presided over by W.T. Cosgrave (seated at the head of the table)

Rory O’Connor, Liam Mellows, Joe McKelvey and Dick Barrett had been woken in their cells, briskly informed of their impending sentence and then taken out into the yard of Mountjoy Prison where a firing-squad did the rest. All four had been part of an armed campaign against the Free State but, while war is hell, “from a legal perspective,” writes historian Séan Enright:

…these men were executed without trial for acts committed by others…The new state was barely two days old and the Constitution guaranteed life, liberty, freedom of conscience and due process or at least trial by military court.

Kevin O’Higgins

Such requirements the Executive Council had manifestly failed to uphold. Nonetheless, the reprisals had their desired result. Save for a couple of ineffectual pot-shots, there were no further assassination attempts on TDs of the Free State. “Is there no alternative?” Kevin O’Higgins had asked when the Council met to sign off on the executions. ‘No’ had been the answer.

Still, these four executions were the exception, not the rule, for the Free State was generally careful in ensuring that its death penalties fitted within the framework of the law. Which law, however, was a tricky question in itself.

Count Plunkett

Until the Irish Free State came officially into being on the 6^th December 1922, the Provisional Government was obliged to rely on British legislation to fill the legal gap – except when that would be inconvenient, such as Count Plunkett bringing forward a claim of habeas corpus on behalf of his son, who was one of the anti-Treaty prisoners taken at the Four Courts in July 1922.

Judge Diarmuid Crowley deemed it satisfactory and issued a writ which threatened to set a precedence for every POW to be set free. Instead, Crowley found himself arrested and detained at Wellington Barracks, in a cell next to one where another prisoner was being subjected to, ahem, ‘enhanced interrogation’.

This was not the end of habeas corpus as a legal recourse: solicitors for Erskine Childers attempted it in a bid to avert his imminent execution, but Sir Charles O’Connor, as Master of the Rolls, simply brushed it aside on the grounds of the common good. “Suprema lex, salus populi must be the guiding principle when the civil law has failed,” Sir Charles ruled:

Force then becomes the only remedy, and to those whom the task is committed must be the sole judge of how it should be exercised…the salvation of the country depends upon it.

Erskine Childers

Childers had no one to blame but himself, Sir Charles continued, with his recourse to civil law being hypocritical given how such “jurisdiction is ousted by the state of war which he himself has helped to procure.” Sir Charles did not speak lightly; after all, the hearing was being held in the King’s Inns because the usual site of the Four Courts lay in ruins thanks to the war in question.

Ironically, Sir Charles had defeated an earlier regime by use of habeas corpus when, shortly after the Truce of 1921, he issued such a writ on behalf of an Irish Republican Army (IRA) prisoner due to be shot under British martial law. When this was refused, Sir Charles went further and issued another writ, this time for the arrest of the army generals accountable.

The military gave way and released the prisoner, a precedence that looked to unravel its counter-insurgency strategy should war resume. The Irish Provisional Government was clearly not going to risk the same thing happening on its watch, as Sir Charles shrewdly – if perhaps cynically – understood. He was an old legal face in a new system playing by new rules.

The Free State was thus cherry-picking which laws were opportune to apply while ignoring the rest. As always, cruel necessity was its defence. When presenting to the Dáil the case for establishing military courts with the power of life and death over POWs, Richard Mulcahy pointed to a couple of incidents where his soldiers had shot anti-Treaty captives out of hand.

Legalise, was his argument, for it is going to happen anyway in one form or another.

Much of this will be familiar to historians of the period, but Enright shines a torch on the legal aspects, making his readers see the topic in a new light: more than just another war but the struggle by one side to establish itself as the rule of law, by using the rule of law, even if it meant twisting the rules and discarding the law at will. How this will be addressed in the forthcoming centenary remains to be seen but, in any case, it was by these means that the Free State triumphed, albeit bloodily, not to say questionably as even the victors were aware.

Firing-squad during the Civil War (most likely staged)

The challenges of researching the conflict, as Enright observes, includes the paucity of reliable sources, due in no small part to the burning of sensitive documents just before Fianna Fáil took office in 1932. Succeeding in the Civil War did not prevent its winners from being voted out almost a decade later in favour of the losers, one of the many ironies of the times and which Machiavelli might have appreciated. Men, after all, are fickle in their affections.

Publisher’s Website: Irish Academic Press

See also: Book Review: After the Rising: Soldiers, Lawyers and Trials of the Irish Revolution, by Seán Enright (2016)

Book Review: After the Rising: Soldiers, Lawyers and Trials of the Irish Revolution, by Seán Enright (2016)

 

Thomas Traynor was charged with murder on the 6^th April 1921 in Dublin City Hall by a military court. A small, wiry man of about forty with a long, black moustache that gave him a mournful appearance, Traynor had been apprehended at 144 Brunswick Street, the scene of an ambush on a British Army patrol that resulted in the death of two cadets. The fleeing Traynor had been rugby-tackled to the ground by a lieutenant who reported that Traynor had shouted: “God’s sake, shoot me now.” Later he had told another of his captors: “I am only a soldier like yourself.”

Under the rules of the court, Traynor was not entitled to give any evidence or be cross-examined. Not that he had much to say, only that he had been caught up in the fighting while carrying a gun – the same automatic found on him at the scene – to give to someone else. He made no attempt to explain the incriminating remarks attributed to him. All this, and his prior involvement in the Easter Rising of five years ago, ensured his conviction for murder and hanging.

British Army and police patrol

If there was little doubt that Traynor had indeed been involved in the ambush on Brunswick Street, then the case of Patrick Maher could only be described as tragic. He was among those arrested and brought to trial for the rescue of Seán Hogan at Knocklong Station that saw two policemen killed in the resulting shootout.

Due to an unfortunate resemblance to Dan Breen, one of the participants in the rescue, Maher was picked out of a police line-up. His name had earlier been passed to the authorities by ‘private information’ – in other words, an informant, unusual in itself when such sources of information were fast drying up.

Maher had worked at Cleeves Creamery throughout a strike, the only employee who had done so, and it is probable that his name had been supplied to the police out of spite (he had already been boycotted and threatened). Along with another man convicted of the shootout (probably accurately), Maher was the last man executed during the War of Independence, on the 7^th June 1921, four days before the Truce which would have saved him.

These are but two of the cases that illuminate Seán Enright’s study of the revolutionary period in Ireland, with a focus on the War of Independence. Enright flips the usual Hibernian-centric narrative on its head by focusing on the British perspective, making it one of the few works to do so.

Earlier studies such as William Sheehan’s Hearts & Mines: The British 5th Division, Ireland, 1920-1922 and W.H. Kautt’s Ambushes and Armour: The Irish Rebellion, 1919-1921 had also followed such a line, though these focused on the military side of things, the obvious area of study for this turbulent period with its ambushes and assassinations.

British Army checkpoint, Dublin

Enright eschews this approach by focusing on the use of the legal system by Dublin Castle to try and contain the growing rebellion on its watch. This leads to a quieter, more analytical read than most works, though – as the author demonstrates throughout – not one that is any less dramatic. Enright understands that stories are the building blocks of history, and here we get plenty of them.

This may not appear obvious at first, given a subject material that seems on the surface to be a dry one. Whatever its interest, Enright leaves us in no doubt as to its importance in understanding the conflict. “A unique feature of this revolution,” he writes, “was the extent to which the conflict centred on law and legal institutions which kept the status quo in place.”

The Crown Courts were intended to be instruments of keeping rebellion in check, yet their juries could not be guaranteed to deliver the verdicts that the British Government needed. Partly this was due to Irish Republican Army (IRA) intimidation, and the few witnesses who did come forward risked boycotts and social alienation.

A more direct approach by the IRA was the burning of court houses, with a total of forty-seven destroyed by the spring of 1920. The presiding judge of one ruined court at Borrisokane in County Tipperary, however, proved to be not so easily vanquished, as Enright describes with a fine eye for tragicomedy:

Major Dease, a hefty, old R.M. convened court in the blackened ruins. Major Dease continued to sit session, his white hair plastered to his face by falling rain. The court staff exchanged glances occasionally but no one was brave enough to say anything to the old Major.

In other cases, no coercion was needed, as local authorities switched allegiances to the Dáil Éireann and quickly made their newfound loyalties known. The Roscommon County Council served notice to landlords of court buildings that no rent would be paid for them as their services were no longer required. In Newbridge, County Kildare, the end of the old system came even more abruptly when the resident magistrate arrived one morning to find the front door to his courthouse locked.

Burnt-out building from the War of Independence

Even the few Crown courts that continued to function did so only barely. The last politically-motivated murder trial heard by a jury was in the spring of 1920. What looked like an iron-clad case against the accused for the shooting of a policeman in Tipperary was thrown on its head when it was revealed mid-trial that the main witness for the prosecution had made an original statement that differed considerably from what he had just given.

It was in the wake of such administrative impotence that Winston Churchill urged the rest of the Cabinet to adopt harsher measures. When it emerged during the Cabinet discussion that the Irish Judiciary, still loyal to the principles of open justice, had refused to take on non-jury trials, Churchill quipped: “Get three generals if you cannot get three judges.”

British soldiers in Dublin

That set the tone for the British response in the latter half of the War, namely the establishment of the military courts and the assigning of the British Army to do what the civilian administration could not.

The first person to be tried for murder under the new system was an 18-year old student, Kevin Barry, for an ambush in Dublin that resulted in three dead soldiers. Despite appeals for clemency, Barry was hanged.

This marked a turning point. Before, IRA defendants could have safely declined to recognise the legitimacy of the toothless courts before them. The possibility of lengthy sentences or even execution made subsequent trials a literal matter of life and death.

Sir Nevil Macready, circa 1915

Even the Truce of 1921 and the cessation of hostilities did not stop the legal battles, particularly with forty-two men still on death row and over a hundred awaiting trial. Sir Nevil Macready, the General Officer Commanding (GOC) in Ireland, intended to proceed with the executions of the former and the start processing the latter, but the case of J.J. Egan, convicted by a military court for the possession of ammunition, threatened to throw a spanner in the whole works.

As briskly summarised by Enright:

The primary argument advanced for the prisoner, Egan, can be distilled in a few lines: the Crown had released the prerogative power to wage war in Ireland to Parliament by passing the ROIA [Restoration of Order in Ireland Act] to deal with the Rebellion and therefore only Parliament could embark on new measures. It followed that the whole edifice of martial law was unlawful.

Matters went badly for Macready when the Master of the Rolls ruled that the military courts were indeed unlawful, with a writ for habeas corpus issued for Egan and the prisoner to be produced in court. Macready held his ground and informed his subordinates to ignore the writ, prompting the issuing of a further writ by the Master of the Rolls for the arrests of Macready and two other generals.

Both sides backed down with their writs the following day, with Egan released and Macready out of danger – but with the military courts, the headstone of British strategy, severely compromised in the event of further warfare in Ireland.

As the above story shows, Enright is adept at bringing out some of the more obscure details of the period into the light, leading to a fuller understanding. But research is not the writer’s only talent, displaying at times the ability to capture taunt, at times gripping depictions of otherwise quiet scenes inside a courtroom.

This book appeals to a number of interests: the challenges a liberal democracy faces in confronting a war, one of the least liberal occurrences, in its midst. The weapons that a military regime, as the British state in Ireland essentially was by its end, can use – and have used against it. Brief but evocative pen portraits of the various senior figures in authority. A study of how things fall apart with the centre slowly but surely failing to hold, no matter how much legal chicanery or brute force is applied. It is for this ability to show many things at once that After the Rising deserves to be on the shelf of any serious student of the period.

 

Publisher’s Website: Merrion Press

Originally posted on The Irish Story (16/12/2016)