This book, it says on the back cover, is a “comprehensive study of the trials” of the rebels of 1916. It is also an analysis of the legal basis for the actions of the British army in Dublin during and after the Easter Rising in that year. The author, Seán Enright, is an English judge who has examined the court martial records of the executed men that British prime minister Herbert Asquith promised in the House of Commons on three occasions to make public, the last time on October 24th, 1916. As promised, these trial records (or some of them) were released – more than 80 years later, in 1999. There was a further release in 2001. The British say that the remaining trial records were destroyed in a “routine” cull, which is extraordinary because whatever else about the Easter Rising and its aftermath, it was anything but routine.
Following the Rising, 14 men were executed in Dublin, one in Cork and one in London. Nearly 2,000 men and women were deported to England. The trial records of some of the deported prisoners have become available via the National Library of Ireland and the Bureau of Military Archives. The author has been able to make use of these new records.
However, it must be said that this book covers much the same ground as Brian Barton’s The Secret Court Martial Records of the Easter Rising (The History Press, 2010), but is less comprehensive, at least in relation to those executed. The Barton book also has more reproductions of documents, photographs and illustrations. But on the other hand, this book deals with these new trial records, as well as those available to Barton.
The author appears to strike a new note in regard to the joint death certificate for the first three leaders executed, Padraig Pearse, Thomas Clarke and Thomas MacDonagh. They were executed in succession on the early morning of May 2nd, 1916 by the same firing squad. Joint death certificates are quite unusual. The death certificates of the other men executed did exist (this is clear as there is reference to them in other documents) but have been removed from their files. Why?
The author believes that they were removed because they indicated that the executions were, in effect, botched. There is evidence, the author contends, that some of the medical and military personnel involved in the executions were emotionally scarred by what they witnessed or were ordered to do. Major WW Rhodes, who organised that first firing squad, became within a few months, the author deduces, mentally ill as a result of his role in those first three executions. He was immediately relieved of further execution duties, the record citing “nervous strain”. By November he was discharged from the army due to “poor eyesight”. Inasmuch as his eyesight was apparently accurate in April, it strains credulity to see how it could have deteriorated so much in seven months.
The author takes the reader through a day-by-day account both of the rebellion and, more importantly for his purposes, of the post-surrender legal, military and political decisions taken by the various military officers and politicians.
Gen John Maxwell, appointed commander-in-chief of British forces in Ireland, arrived in Dublin on Friday morning, April 28th, 1916. On arrival he learned that the British cabinet had the day before proclaimed martial law over all of Ireland. According to the author, martial law ceases when the necessity for it no longer exists. Civil law is then restored. By the following Monday the state of rebellion no longer existed in Dublin. However, the author states that “all that followed the proclamation of martial law inevitably came to be tainted with illegality”. It may be more correct to say that the illegality dates from the surrender of the rebels, or shortly after, when order had been restored.
The Defence of the Realm Act legislation provided that soldiers accused of capital offences were to be tried by general courts martial. A proclamation made on April 26th enabled civilians to be tried as if they were soldiers under the act. A general court martial was headed by a lawyer, had many safeguards and was somewhat akin to an ordinary criminal trial, including the right to a public trial, to legal counsel and to call witnesses to give sworn evidence. There was also a review by the Judge Advocate General, who was independent and based in London. Where a soldier was sentenced to death, there was a right to seek the royal prerogative of mercy.
The Manual of Military Law provided that, where it was not practicable to hold a general field martial, the officer commanding could convene a field general court martial (effectively, a summary court martial), which was comprised of three officers, none of whom had to be a lawyer. The purpose of a summary court martial was not so much to administer justice, but to maintain army discipline. The few protections for the accused (including the right to a public trial, to give unsworn evidence and to call sworn witnesses) could be abrogated by the officer commanding “where military exigencies render it impossible or expedient”. In May 1916 when the trials were held the rebellion was completely over. There was, therefore, no justification or legal basis whatever for not using the general court martial, not to mention the ordinary courts, as was made clear at Wolfe Tone’s trial in 1798.
Add to this the fact that the prisoners had only a few days, and in some cases, only a few hours to prepare, by themselves and without legal assistance, their defence in their trial for a capital offence. The author rightly points out that the British army acted as “prosecutor, witness, judge and victim”. He could have added “executioner”. In any event, William Wylie, who prosecuted most of the trials, did what little he could to mitigate the stacked nature of the trials, including allowing (and encouraging) the prisoners to call unsworn evidence.
Maxwell’s legal problem, to the extent that he may have considered it, was that section 1 of the act provided that the death penalty could only be imposed where the act was carried out “for the purpose and with the intention of assisting the enemy”. Any good lawyer will tell you that it is notoriously difficult to prove intent, especially beyond a reasonable doubt.
Patrick Pearse, as a lawyer, knew this, so he wrote to his mother and added a postscript referring to “the German expedition on which I was counting”. Pearse wanted to be executed and was signing his own death warrant with that postscript. But this was also giving the British the ammunition to condemn others. This is where the lack of legal counsel was most problematic for the other prisoners and in some cases lethal, especially those with children who, the scant record that exists makes clear, vigorously fought their case.
A defence lawyer, had he been allowed, would have demanded proof of intent and purpose to assist the enemy in respect of his particular client. We must infer, as the author believes, that the boards imputed constructive intent and purpose from Pearse’s admission to all of the other prisoners, even where the record, scant as it is, clearly shows that the prisoner emphatically denied any such purpose or intent. The prisoners were tried on a capital charge, in secret, by a military court, with no legal assistance and with only days, or even hours, to prepare their defence. According to the author and many others, most of the trials themselves lasted only a matter of minutes.
Six prisoners were sentenced to death on Tuesday, May 2nd; 19 prisoners on the following day; and 31 on the Thursday. Gen Maxwell confirmed the sentences and decided which prisoners would be executed and which prisoners would have their sentences commuted. British justice, it appears, was swift. No trials were held on Thursday as Gen Maxwell went to London, but he was able to ensure that at least one execution was carried out, that of John MacBride. In a note he recorded that, “Owing to my sudden departure for England, I was only [enphasis added] able to deal with [MacBride, plus two others]”, both of whose death sentences he confirmed but commuted to penal servitude.
The author believes that the prisoners were not tried under the Defence of the Realm Act at all, but under a trial regime of Gen Maxwell’s creation. He gives three reasons to support this belief. Firstly, the prisoners did not receive the protection afforded by the Judge Advocate General, who was independent, based in London and had the duty to review the sentence of any soldier sentenced to death. He would advise whether the conviction could legally stand. Secondly, the Lord Lieutenant was not permitted to exercise his constitutional duty to consider the exercise of the royal prerogative of mercy. Thirdly, the surviving trial records show that the rules of procedure giving certain protections to the prisoners were largely bypassed.
If the author is correct in this, then the entire legal architecture underpinning the 1916 trials crumbles, if it hadn’t already crumbled under the weight of the superlative essay of the late and much lamented Judge Adrian Hardiman, Shot in Cold Blood: Military Law and Irish Perceptions in the Suppressions of the 1916 Rebellion. This essay was published in 2007 in a book of essays entitled, 1916 – The Long Revolution. Although the author cites Hardiman’s essay in the bibliography, he does not see fit to refer to it, much less discuss it. This essay restates the received legal view that the trials were held under the Defence of the Realm Act. The essay is, in this reviewer’s opinion, the premier legal exposition yet written on the legality of British actions in Dublin in 1916. In particular, the author’s consideration of the habeas corpus case of Gerald Doyle, one of the deported prisoners, heard in 1917 by the English courts, is far inferior to that of Hardiman, who was scathing of the English court’s reasoning, or lack of it, in that essay.
The author goes on to examine the individual records of 37 prisoners, including those of 15 of the 16 prisoners executed. From an examination of all the evidence he believes that Connolly was given pain-killing drugs for the extremely bumpy trip in a horse-drawn wagon from Dublin Castle to Kilmainham Jail. The evidence shows, according to the author, that when he was executed, the blindfolded Connolly was unconscious or semi-conscious due to the drugs, head back, slumped backwards over a chair, with his gangrenous legs outstretched. Fr Aloysius, the priest who witnessed the execution, said later that Connolly “was put sitting on a chair”, which, while literally true, is vague enough. It is certainly possible that Fr Aloysius played down the gruesome details and added others so as not to increase the grief of Connolly’s widow.
With regard to Constance Markievicz, Wylie’s memoir has clouded her reputation in that, according to Wylie, writing 25 years later, she pleaded for her life on the basis of her sex. The author concludes, as does Barton, that Wylie is “unreliable” on this point and prefers Gen Blackadder’s contemporaneous note. Others, such as Charles Townshend, lean the other way.
On the plus side, the author considers the records of many more trials than did Barton, who limited himself to those executed. One of the more colourful stories is that of the prisoner William Corrigan, a solicitor who had the week before sent Wylie, otherwise a practising barrister, a cheque for work done. His life was saved when Wylie told the board that he would lose his fee if Corrigan was executed and the yet uncashed cheque bounced!
From a legal point of view, this book is interesting and will, without a doubt, be a useful reference book about 1916, with the caveat that the index to the book is quite poor. Asquith’s name, according to the index, only appears twice in the main text. Needless to say, his name appears dozens of times. Even apart from that, the index, unfortunately, is an index of names only. In a study of the Easter Rising places and documents are also vital to any comprehensive consideration.
However, the author makes a number of unfortunate political comments that greatly detract from the value of such a book. For instance, the author, in this reviewer’s opinion, twists Connolly’s last speech at the trial by saying that “the central point advanced by Connolly [in his speech at the trial] was that any small group of men could impose their views on society by force of arms”.
Connolly was saying no such thing. The central point of Connolly’s speech was the restatement of the principle behind the Proclamation, the democratic right of a conquered people under a foreign yoke to rebel and to have their own independent country. The England that Connolly was referring to in that speech was the England that before the war arrogated to itself the right to decide life and death over half the globe, and during the war was sending nearly a million young men to their early graves in a senseless war. In the 1970s this was no longer the case.
The author may have missed this because he is a British judge and the British political and judicial systems have never recognised the right of their conquered nations to self-determination, only their right to ask the British government to grant their independence. This appears to be an underlying theme implicit in the author’s comments.
Furthermore, I find it unseemly that a person whose relatively recent judicial forbears are, among others, Lord Widgery (his judicial inquiry after Bloody Sunday in Derry in 1972 was recently overturned by Lord Saville) and Lord Denning (his “appalling vista” remark in the Birmingham Six civil case against the British police is now universally discredited) and whose political forbears are historically responsible for creating the sectarian division within Ireland that still exists, purports to lecture Irish people about the Troubles.
In this reviewer’s opinion, a sitting British judge should not make political comments about Irish history alongside valid legal points so as to conflate the two. And especially in an otherwise valuable book exposing the illegality, as he himself puts it, of the actions of his country’s army in 1916 in Ireland.
Regrettably, nowhere does the author make the point that Ireland (or, indeed, any of tho other subject countries conquered by force of arms by the British Empire) had the right to decide whether they wished to continue as part of that empire.
In Chapter 3, he states, referring to the May 11th proceedings in the House of Commons: “Back at Westminster [on May 11th], Asquith gave a commanding performance. He defended [Gen] Maxwell, who had shown ‘discretion, depth of mind and humanity’.”
Between May 1st, when he began, until that date, May 11th, Gen Maxwell confirmed the death sentence of more than 80 prisoners, 13 of whom had already been executed. Asquith then told the House that he would permit the execution of two more prisoners. These were James Connolly and Seán MacDiarmada. Asquith also stated, “ I am perfectly satisfied with the manner in which [Gen Maxwell] discharged and is discharging the exceptionally difficult duty which was confided to him”. Maxwell apparently showed his discretion by confirming every sentence of death issued by the court martial board, before commuting most of them to penal servitude. Asquith all but justified the last two executions by implying that it wouldn’t be fair to the other five signatories who had already been executed! Their sentences had been “properly given and carried out”, according to Asquith.
A commanding performance it was not – it was an appalling performance despite what the author states. The author’s apparent endorsing of Asquith’s description of Maxwell as being humane is baffling as well as appalling, especially in the light of his lightning-quick drumhead courts martial and executions. Eight hours’ notice to trial where one’s life was at stake, a 15- to 25-minute trial, no family allowed, no public allowed, no press allowed, no lawyer allowed, no sworn evidence on one’s behalf allowed, sentence of death, no appeal, execution the next day. I find it sad that the a sitting judge of any country with Enlightenment values could call such a speech “a commanding performance” and not condemn outright what Asquith had said. The answer may lie in the fact that the author is a member of the British establishment.
The author then for some unexplained reason goes on to decry the speech of John Dillon MP on that day, saying that Dillon’s speech was “ill-judged” and that he exercised “very poor judgement” in delivering it. The author goes on to state that it was”emotionally charged and invited sympathy for the rebels”. In the author’s view Dillon should not, after stating his opinion that he believed that the rebels had been misguided, have added, “but they fought a clean fight, and they fought with superb bravery”.
Was Dillon wrong to add that? Was he factually incorrect? It is bewildering that the author should go out of his way to criticise Dillon for telling the truth, especially in a book concerning unlawful drumhead courts martial. The author neglects at this point to tell the reader that Dillon was in his Dublin home during the Rising and its aftermath. Hi lived on North Great Georges Street, which is a half-minute walk from O’Connell St. (then Sackville St.). Nor does he tell the reader that Dillon implored Gen Maxwell in Dublin on more than one occasion to halt the executions and the house searches. On May 7th Dillon met the Governor General and urged him to stop the executions. Dillon later hurried over to London. This is the context of Dillon’s speech. Dillon was the son of a Young Irelander, had himself been imprisoned during the Land War, had been an MP for 30 years and knew the Irish psyche. The speech was emotionally charged because Dillon himself was witnessing in Dublin how the executions were “washing out our whole life-work in a sea of blood”, as he told Asquith. The author fails to mention this part of his speech, or, indeed, its context. Dillon was being prophetic. In the 1918 general election the seat he had held since 1885 would indeed be washed out with the Sinn Féin tide and the Irish Parliamentary Party would be finished. No wonder Dillon was emotional.
He was probably also emotional when he told Asquith that Francis Sheehy-Skeffington, whom he knew, and two other civilians had been “shot in cold blood” in Portobello Barracks. He related how his widow, Hannah, visited him and told him how she, frantic about her missing husband, only learned about his death four days after he had been secretly buried in Portobello Barracks. The author fails to mention this part of Dillon’s speech, either. Perhaps the author isn’t aware that Dillon knew the Pearse family, had great regard for Patrick Pearse, was outraged that Willie Pearse was executed and was very upset that Gen Maxwell denied Mrs Pearse’s request that her sons be given a Christian burial.
The only way that the author could consider this speech “ill-judged” is from the standpoint of a defender of the British Empire or from someone who has not done the historical research necessary to make comments of this sort.
In his postscript the author states baldly that partition and civil war are legacies of 1916. This is where a lack of knowledge of Irish history handicaps the author. Partition is a legacy of 1914 and the Curragh Mutiny, not 1916. Partition was accepted by the British government in July 1914 when it agreed to exempt Ulster from Home Rule. The British government had in March of that year caved in to 57 British army officers who defied the will of parliament at the Curragh Camp. The civil war is, indeed, a tragic legacy of 1916. However, no serious historian not mad with partisanship, as Oliver Wendell Holmes would have said, would put this forward without referring to the history of Britain’s involvement in Ireland. The unfortunate and tragic legacy of “politically motivated violence” in Ireland is a consequence of colonialism and religious sectarianism, which are legacies of the British. By making the civil war a legacy of 1916 in the simple way that he does, the author absolves the British of historical responsibility. In this reviewer’s opinion, this is quite wrong.
This reviewer finds it extraordinary that the author fails to cite even one positive legacy of 1916. He might start with continuous democratic government in Ireland (not to mention independence) since the 1920s. Britain and Ireland are two of only a handful of European countries that can be very proud of this – but in Ireland’s case it was not done by appropriating the resources of millions of other people across half the globe in their Empire and, where expedient, killing those who resisted.
Also, in the postscript, the author somewhat ambiguously states the military courts set up by the Irish Government in the 1940s “functioned well enough” before adding that two IRA members were executed under their aegis. He might well have explained what he meant by that.
The author describes the Lord Lieutenant, Baron Wimborne, as “the representative of the Sovereign [emphasis added]”. His name, Ivor Guest, is not given. This is unusual given that the book is published in Ireland.
There is one very surprising omission, given the book’s title – there is no consideration of Roger Casement’s trial. It would have been interesting, given that the author is a British judge, to have his opinion of the judicial treatment of Casement by the judges and the post-trial blackening of his name by the British government. Incidentally, the author states that “the Casement Diaries were passed around Westminster” during his appeal. This is not correct. In general, typescript pages of the forged Black Diaries were shown to certain journalists, not passed around. Ben Allen, an American journalist for the Associated Press, was shown in 1916 by British intelligence services buff-coloured foolscap pages with jagged edges at the top purporting to be Casement’s diary containing sexual references. Captain (later Admiral) Reginald Hall, Director of Naval Intelligence, over a period of weeks encouraged Allen to write about them. Allen asked permission to see Casement in prison to put these pages to him in person. He was not permitted. These pages have since disappeared.
It is unfortunate that the author’s ill-considered comments detract from what is otherwise a very worthwhile legal study. In the future I would respectfully advise the good judge to stick to the law.
