1916 (38 page)

Women have very little to hope for from political revolutions. Social revolution offered an opportunity for reforms which go nearer to the heart of things and affect the lives of women more closely than mere political revolutions.
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The immediate legal responses of the British authorities to the 1916 rebellion are easily summarised. First the lord lieutenant proclaimed a state of martial law in Dublin and, within hours of that, the government separately took the necessary steps to allow courts martial instead of the ordinary courts to try persons on charges of breaching the Defence of the Realm Regulations (DORR). On the Friday of Easter week General Sir John Maxwell arrived in Ireland as ‘military governor’ with ‘plenary powers
under martial law
[emphasis added] over the whole country, the Irish executive having placed themselves at his disposal to carry out his instructions’, as Asquith put it.
¹

As we shall see, by these actions the government brought into simultaneous existence two quite inconsistent legal regimes. This basic contradiction bedevilled both soldiers and politicians for months. For certain prisoners the consequences of the confusion were literally fatal. Maxwell and the government that had appointed him were soon at loggerheads, with the government trying awkwardly and very slowly to claw back the powers given him. Maxwell, in turn, compelled to work under the Defence of the Realm regulations, did so in such a way as to approximate to martial law. The British legal establishment were quickly agreed that in doing so he had acted unlawfully, in particular by conducting the trials in secret. Asquith and later Lloyd George suffered considerable embarrassment and concern on this account until, in 1917, a British court was found patriotic enough to relieve their anxiety in a judgment startlingly devoid of legal merit.

The authorities had a deeper, hidden, anxiety as well. In June 1916 both Asquith and Maxwell promised that the transcripts of the May 1916 courts martial would shortly be published, and that it would then be seen that the verdicts in the capital cases were hugely supported by evidence.
These promises were given in an attempt to counter the growing feeling, not least in America, that the executed rebels had been ‘shot in cold blood’. But the army would not allow publication of the (generally very brief) notes of the courts martial, since, in the words of two very senior officers quoted below, ‘there are one or two cases in which the evidence is extremely thin’ and ‘the evidence in some of the cases was far from conclusive’.
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These are startling admissions.

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.
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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.’
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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’.
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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.’
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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’.
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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.

D
EFENCE OF THE
R
EALM
A
CTS

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.
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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’.
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There were also less serious charges not immediately relevant for present purposes.

A
SPECTS 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.
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It was immediately seen that this power was very wide indeed and open to abuse.
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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.
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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.’
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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.
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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.
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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.’
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