1916 (39 page)

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

L
EGALITY 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.

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.